0000922423-01-500864.txt : 20011010
0000922423-01-500864.hdr.sgml : 20011010
ACCESSION NUMBER: 0000922423-01-500864
CONFORMED SUBMISSION TYPE: SC 13D
PUBLIC DOCUMENT COUNT: 4
FILED AS OF DATE: 20011009
GROUP MEMBERS: BARINGTON COMPANIES EQUITY PARTNERS, L.P.
GROUP MEMBERS: DOMROSE SONS PARTNERSHIP
GROUP MEMBERS: JEWELCOR MANAGEMENT, INC.
GROUP MEMBERS: RAMIUS SECURITIES, LLC
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: BARINGTON CAPITAL GROUP L P
CENTRAL INDEX KEY: 0000887762
STANDARD INDUSTRIAL CLASSIFICATION: []
FILING VALUES:
FORM TYPE: SC 13D
BUSINESS ADDRESS:
STREET 1: 888 SEVENTH AVENUE 17TH FL
CITY: NEW YORK
STATE: NY
ZIP: 10019
BUSINESS PHONE: 2129745400
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: MUSICMAKER COM INC
CENTRAL INDEX KEY: 0001079786
STANDARD INDUSTRIAL CLASSIFICATION: PHONOGRAPH RECORDS & PRERECORDED AUDIO TAPES & DISKS [3652]
IRS NUMBER: 541811721
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-56755
FILM NUMBER: 1754351
BUSINESS ADDRESS:
STREET 1: 1740 BROADWAY
STREET 2: 23RD FLOOR
CITY: NEW YORK
STATE: NY
ZIP: 10019
BUSINESS PHONE: (212) 265-
MAIL ADDRESS:
STREET 1: 1831 WIEHLE AVENUE
STREET 2: SUITE 128
CITY: RESTON
STATE: VA
ZIP: 20190
SC 13D
1
kl10015_sc13d.txt
FORM SC 13D
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(A) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
Liquid Audio, Inc.
------------------
(Name of Issuer)
Common Stock, $.001 par value
-----------------------------
(Title of Class of Securities)
53631T102000
------------
(CUSIP Number)
Mr. James Mitarotonda
c/o Barington Capital Group, L.P.
888 Seventh Avenue, 17th Floor
New York, N.Y. 10019
(212) 974-5700
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
September 28, 2001
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f), or 13d-1(g), check the following
box: |_|.
Page 1 of 17 pages
Exhibit Index appears on page 10
SCHEDULE 13D
CUSIP No. 53631T102000 Page 2 of 17 pages
--------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
musicmaker.com, Inc. 54-1811721
--------------------------------------------------------------------------------
2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |x|
(b) |_|
------------------------------------------------------------------------------
3) SEC USE ONLY
--------------------------------------------------------------------------------
4) SOURCE OF FUNDS WC
--------------------------------------------------------------------------------
5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7) SOLE VOTING POWER
SHARES 515,500
----------------------------------------------------
BENEFICIALLY 8) SHARED VOTING POWER
OWNED BY None
----------------------------------------------------
EACH REPORTING 9) SOLE DISPOSITIVE POWER
PERSON WITH 515,000
----------------------------------------------------
10) SHARED DISPOSITIVE POWER
None
--------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
515,500
------------------------------------------------------------------------------
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.3%
--------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON
CO
--------------------------------------------------------------------------------
SCHEDULE 13D
CUSIP No. 53631T102000 Page 3 of 17 pages
--------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Jewelcor Management, Inc. 23-2331228
--------------------------------------------------------------------------------
2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |x|
(b) |_|
------------------------------------------------------------------------------
3) SEC USE ONLY
--------------------------------------------------------------------------------
4) SOURCE OF FUNDS WC
--------------------------------------------------------------------------------
5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6) CITIZENSHIP OR PLACE OF ORGANIZATION
Nevada
--------------------------------------------------------------------------------
NUMBER OF 7) SOLE VOTING POWER
SHARES 475,500
----------------------------------------------------
BENEFICIALLY 8) SHARED VOTING POWER
OWNED BY None
----------------------------------------------------
EACH REPORTING 9) SOLE DISPOSITIVE POWER
PERSON WITH 475,500
----------------------------------------------------
10) SHARED DISPOSITIVE POWER
None
--------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
475,500
------------------------------------------------------------------------------
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.1%
--------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON
CO
--------------------------------------------------------------------------------
SCHEDULE 13D
CUSIP No. 53631T102000 Page 4 of 17 pages
--------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Barington Companies Equity Partners, L.P. 13-4088890
--------------------------------------------------------------------------------
2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |x|
(b) |_|
------------------------------------------------------------------------------
3) SEC USE ONLY
--------------------------------------------------------------------------------
4) SOURCE OF FUNDS WC
--------------------------------------------------------------------------------
5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7) SOLE VOTING POWER
SHARES 339,200
----------------------------------------------------
BENEFICIALLY 8) SHARED VOTING POWER
OWNED BY None
----------------------------------------------------
EACH REPORTING 9) SOLE DISPOSITIVE POWER
PERSON WITH 339,200
----------------------------------------------------
10) SHARED DISPOSITIVE POWER
None
--------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
339,200
------------------------------------------------------------------------------
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.5%
--------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON
PN
--------------------------------------------------------------------------------
SCHEDULE 13D
CUSIP No. 53631T102000 Page 5 of 17 pages
--------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Ramius Securities, LLC 58-2253019
--------------------------------------------------------------------------------
2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |x|
(b) |_|
------------------------------------------------------------------------------
3) SEC USE ONLY
--------------------------------------------------------------------------------
4) SOURCE OF FUNDS WC
--------------------------------------------------------------------------------
5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7) SOLE VOTING POWER
SHARES 89,500
----------------------------------------------------
BENEFICIALLY 8) SHARED VOTING POWER
OWNED BY None
----------------------------------------------------
EACH REPORTING 9) SOLE DISPOSITIVE POWER
PERSON WITH 89,500
----------------------------------------------------
10) SHARED DISPOSITIVE POWER
None
--------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
89,500
------------------------------------------------------------------------------
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
less than 1.0%
--------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON
OO
--------------------------------------------------------------------------------
SCHEDULE 13D
CUSIP No. 53631T102000 Page 6 of 17 pages
--------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Domrose Sons Partnership 11-3256586
--------------------------------------------------------------------------------
2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |x|
(b) |_|
------------------------------------------------------------------------------
3) SEC USE ONLY
--------------------------------------------------------------------------------
4) SOURCE OF FUNDS WC
--------------------------------------------------------------------------------
5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
--------------------------------------------------------------------------------
6) CITIZENSHIP OR PLACE OF ORGANIZATION
New York
--------------------------------------------------------------------------------
NUMBER OF 7) SOLE VOTING POWER
SHARES 8,000
----------------------------------------------------
BENEFICIALLY 8) SHARED VOTING POWER
OWNED BY None
----------------------------------------------------
EACH REPORTING 9) SOLE DISPOSITIVE POWER
PERSON WITH 8,000
----------------------------------------------------
10) SHARED DISPOSITIVE POWER
None
--------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,000
------------------------------------------------------------------------------
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
less than 1.0%
--------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON
PN
--------------------------------------------------------------------------------
SCHEDULE 13D
CUSIP No. 53631T102000 Page 7 of 17 pages
--------------------------------------------------------------------------------
Item 1. Security and Issuer.
This Statement on Schedule 13D (the "Statement") relates to the common stock,
$.001 par value (the "Common Stock"), of Liquid Audio Inc., a Delaware
corporation (the "Company"). The principal executive offices of the Company are
located at 800 Chesapeake Drive, Redwood City, California 94063.
Item 2. Identity and Background.
(a) - (c) This statement is being filed by musicmaker.com, Inc.,
Jewelcor Management, Inc., Barington Companies Equity Partners, L.P., Ramius
Securities, LLC and Domrose Sons Partnership (collectively, the "Reporting
Entities").
musicmaker.com, Inc. (Symbol: HITS) is a Delaware corporation
that was formerly engaged in the business of marketing customized compact
discs over the internet and is presently exploring alternative business
opportunities. The address of the principal business and principal offices
of musicmaker.com, Inc. is c/o Barington Capital Group, L.P., 888 Seventh
Avenue, 17th Floor, New York, New York 10019. The officers and directors of
musicmaker.com, Inc. and their principal occupations and business addresses
are set forth on Schedule I and incorporated by reference in this Item 2.
Jewelcor Management, Inc. is a Nevada corporation engaged in
money management and investment advisory services. The address of the
principal business and principal offices of Jewelcor Management, Inc. is 100
North Wilkes Barre Blvd., Wilkes Barre, Pennsylvania 18702. The officers and
directors of Jewelcor Management, Inc. and their principal occupations and
business addresses are set forth on Schedule II and incorporated by reference
in this Item 2.
Barington Companies Equity Partners, L.P. is a Delaware limited
partnership formed to engage in the business of acquiring, holding and
disposing of investments in various companies. The address of the principal
business and principal offices of Barington Companies Equity Partners, L.P.
is 888 Seventh Avenue, 17th Floor, New York, New York 10019.
The general partner of Barington Companies Equity Partners, L.P. is
Barington Companies Investors, LLC. Barington Companies Investors, LLC is a
Delaware limited liability company formed to be the general partner of Barington
Companies Equity Partners, L.P. The address of the principal business and
principal offices of Barington Companies Investors, LLC is 888 Seventh Avenue,
17th Floor, New York, New York 10019. James Mitarotonda is the managing member
of Barington Companies Investors, LLC. The business address of Mr. Mitarotonda
is c/o Barington Capital Group, L.P., 888 Seventh Avenue, 17th Floor, New York,
New York 10019.
Ramius Securities, LLC is a Delaware limited liability company and a
registered broker-dealer. The address of the principal business and principal
offices of Ramius Securities, LLC is 666 Third Avenue, 26th Floor, New York, New
York 10017.
SCHEDULE 13D
CUSIP No. 53631T102000 Page 8 of 17 pages
--------------------------------------------------------------------------------
The Managing Member of Ramius Securities, LLC is Ramius Capital
Group, LLC. Ramius Capital Group, LLC is a Delaware limited liability company
that is engaged in money management and investment advisory services for third
parties and proprietary accounts. The address of the principal business and
principal offices of Ramius Capital Group, LLC is 666 Third Avenue, 26th Floor,
New York, New York 10017.
The Managing Member of Ramius Capital Group, LLC is C4S, LLC, a
Delaware limited liability company formed to be the managing member of Ramius
Capital Group, LLC. The address of the principal business and principal offices
of C4S, LLC is 666 Third Avenue, 26th Floor, New York, New York 10017. Each of
Peter A. Cohen, Morgan B. Stark and Thomas W. Strauss is a managing member of
C4S, LLC. The business address of each of Messrs. Cohen, Stark and Strauss is
666 Third Avenue, 26th Floor, New York, New York 10017.
Domrose Sons Partnership is a New York partnership formed to engage
in the business of acquiring, holding and disposing of investments in various
companies. The address of the principal business and principal offices of
Domrose Sons Partnership is c/o Mario Mitarotonda, Vincci, 70-39 Austin Street,
Forest Hills, New York 11375.
Each of James Mitarotonda, Mario Mitarotonda and Mike Mitarotonda is
a partner in Domrose Sons Partnership. The business address of each James
Mitarotonda, Mario Mitarotonda and Mike Mitarotonda is c/o Mario Mitarotonda,
Vincci, 70-39 Austin Street, Forest Hills, New York 11375.
(d) - (e) During the last five years, none of the Reporting
Entities or any other person identified in response to this Item 2 was convicted
in a criminal proceeding (excluding traffic violations and similar misdemeanors)
or was a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction nor as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, Federal or state securities laws or finding
any violation with respect to such laws.
(f) Each natural person identified in Item 2 is a citizen of
the United States.
Item 3. Source and Amount of Funds or Other Consideration.
All purchases of Common Stock by the Reporting Entities were made in
the open market and were funded by working capital, which may, at any given
time, include margin loans made by brokerage firms in the ordinary course of
business. The amount of the funds expended by the Reporting Persons for such
purchases was $1,129,445 by musicmaker.com, Inc.; $1,036,831 by Jewelcor
Management, Inc.; $747,781 by Barington Companies Equity Partners, L.P.;
$207,686 by Ramius Securities, LLC; and $16,428 by Domrose Sons Partnership.
Item 4. Purpose of Transaction.
Each of the Reporting Entities acquired beneficial ownership of the
shares of Common Stock to which this Statement relates for investment purposes
and to obtain a significant equity interest in the Company.
SCHEDULE 13D
CUSIP No. 53631T102000 Page 9 of 17 pages
--------------------------------------------------------------------------------
Each of the Reporting Entities may acquire additional shares or
other securities of the Company or sell or otherwise dispose of any or all of
the shares or other securities of the Company beneficially owned by it. The
Reporting Entities may take any other action with respect to the Company or any
of its debt or equity securities in any manner permitted by law.
On October 8, 2001, musicmaker.com, Inc., on behalf of the Reporting
Entities, sent a letter to the Company and issued a press release, copies of
which are attached hereto as Exhibit 2 and Exhibit 3, respectively. The letter
and press release outlined the Reporting Entities' intention, depending on
market conditions, to seek to acquire up to approximately an additional 8.6% of
the Company's Common Stock, or approximately 1,950,000 additional shares of
Common Stock. Furthermore, the Reporting Entities stated that they would be
willing to increase their ownership to up to 25% of the outstanding Common Stock
if the shareholder rights plan recently instituted by the Company's Board of
Directors was rescinded. The Reporting Entities also requested that the
Company's Board of Directors be increased from five to six and that individuals
proposed by the Reporting Entities be appointed to fill the two current
vacancies and the one newly created seat. The Reporting Entities may also
consider other actions, including but not limited to the possibility of making a
tender offer to acquire shares of the Company's Common Stock.
On October 6, 2001, representatives of the Reporting Entities
contacted the president of the Company by telephone to advise him of the
forthcoming letter, press release and Schedule 13D filing, and to request a
meeting.
The Reporting Entities now understand that one of the former
vacancies on the Company's Board of Directors has been filled by the Board.
Except as set forth in this Item 4, none of the Reporting Entities
have any present plans or proposals that relate to or would result in any of the
actions specified in clauses (a) through (j) of the instructions to Item 4 of
Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) As of the date hereof, the Reporting Entities own an aggregate
of 1,427,700 shares of Common Stock, representing approximately 6.3% of the
outstanding shares of Common Stock based upon the 22,633,624 shares of Common
Stock reported by the Company to be issued and outstanding as of August 14, 2001
in its Quarterly Report on Form 10-Q for the quarter ended June 30, 2001.
As of the date hereof, musicmaker.com, Inc. beneficially owns an
aggregate of 515,500 shares of Common Stock, representing approximately 2.3% of
the outstanding shares of Common Stock.
As of the date hereof, Jewelcor Management, Inc. beneficially owns
an aggregate of 475,500 shares of Common Stock, representing approximately 2.1%
of the outstanding shares of Common Stock.
As of the date hereof, Barington Company Equities Partners, L.P.
beneficially owns an aggregate of 339,200 shares of Common Stock, representing
approximately 1.5% of the outstanding shares of Common Stock.
SCHEDULE 13D
CUSIP No. 53631T102000 Page 10 of 17 pages
--------------------------------------------------------------------------------
As of the date hereof, Ramius Securities, LLC beneficially owns an
aggregate of 89,500 shares of Common Stock, representing less than 1% of the
outstanding shares of Common Stock.
As of the date hereof, Domrose Sons Partnership beneficially owns an
aggregate of 8,000 shares of Common Stock, representing less than 1% of the
outstanding shares of Common Stock.
(b) As of the date hereof, each of the Reporting Entities has sole
voting and dispositive power over the shares of Common Stock beneficially owned
by such Reporting Entity.
(c) Except as set forth above or in the attached Schedule II, no
person identified in Item 2 hereof has effected any transaction in shares of
such Common Stock during the 60 days preceding the date hereof.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Not applicable.
Item 7. Material to be Filed as Exhibits.
Exhibit
Number Description
------- -----------
99.1 Agreement of Joint Filing among musicmaker.com, Inc., Jewelcor
Management, Inc., Barington Companies Equity Partners, L.P., Ramius
Securities, LLC, and Domrose Sons Partnership and dated October 8,
2001.
99.2 Letter to the Company dated October 8, 2001.
99.3 Press Release dated October 8, 2001.
SCHEDULE 13D
CUSIP No. 53631T102000 Page 11 of 17 pages
--------------------------------------------------------------------------------
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certify that the information set forth in this
Statement is true, complete and correct.
Dated: October 9, 2001
MUSICMAKER.COM, INC.
By /s/ James Mitarotonda
-------------------------------------
Name: James Mitarotonda
Title: President and Chief Executive
Officer
JEWELCOR MANAGEMENT, INC.
By /s/ Seymour Holtzman
-------------------------------------
Name: Seymour Holtzman
Title: Chairman and Chief Executive
Officer
BARINGTON COMPANIES EQUITY PARTNERS, L.P.
By: Barington Companies Investors,
LLC, its general partner
By /s/ James Mitarotonda
-------------------------------------
Name: James Mitarotonda
Title: Manager
RAMIUS SECURITIES, LLC
By: Ramius Capital Group, LLC, its
managing member
By /s/ Peter A. Cohen
-------------------------------------
Name: Peter A. Cohen
Title: Manager
DOMROSE SONS PARTNERSHIP
By /s/ James Mitarotonda
-------------------------------------
Name: James Mitarotonda
Title: Partner
SCHEDULE 13D
CUSIP No. 53631T102000 Page 12 of 17 pages
--------------------------------------------------------------------------------
SCHEDULE I
Directors and Officers of musicmaker.com, Inc.
Name and Position Principal Occupation Principal Business Address
----------------- -------------------- --------------------------
James Mitarotonda, Chairman and Chief c/o Barington Capital Group, L.P.
President, Chief Executive Officer, 888 Seventh Avenue, 17th Floor
Executive Officer and Barington Capital New York, New York 10019
Director Group, L.P.
Jesse Choper, Professor of Public Univ. of California Law School
Director Law, University of Boalt Hall
California at Berkeley Berkeley, California 94720
School of Law
Seymour Holtzman, Chairman and Chief 100 North Wilkes Barre Blvd.
Chairman Executive Officer, Wilkes Barre, Pennsylvania
Jewelcor Management, 18702
Inc.
Devarajan S. Puthukarai, Former Chief Executive musicmaker.com, Inc.
Director Officer, President and c/o Barington Capital Group, L.P.
Chief Operating 888 Seventh Avenue, 17th Floor
Officer, New York, New York 10019
musicmaker.com, Inc.
William Scranton III, Head of Scranton 201 Penn Avenue
Director Family Office PNE Bank Building
Scranton, PA 18503
Irwin Steinberg, Former Vice Chairman, musicmaker.com, Inc.
Director musicmaker.com, Inc. c/o Barington Capital Group, L.P.
888 Seventh Avenue, 17th Floor
New York, New York 10019
Joseph Wright, Jr., President & Chief 20 Westport Road
Director Executive Officer, Wilton, Connecticut 06897
PanAmSat Corp.
Patrick Kedziora, Chief Financial c/o Barington Capital Group, L.P.
Chief Financial Officer Officer, 888 Seventh Avenue, 17th Floor
Barington Capital New York, New York 10019
Group, L.P.
SCHEDULE 13D
CUSIP No. 53631T102000 Page 13 of 17 pages
--------------------------------------------------------------------------------
SCHEDULE II
Directors and Officers of Jewelcor Management, Inc.
Name and Position Principal Occupation Principal Business Address
----------------- -------------------- --------------------------
Seymour Holtzman, Chairman and Chief 100 North Wilkes Barre Blvd.
Chairman Executive Officer, Wilkes Barre, Pennsylvania 18702
Jewelcor Management, Inc.
Richard Huffsmith, Vice Vice President/General 100 North Wilkes Barre Blvd.
President/General Counsel Counsel Wilkes Barre, Pennsylvania 18702
Barry Booth, Vice Vice President/Finance 100 North Wilkes Barre Blvd.
President/Finance Wilkes Barre, Pennsylvania 18702
Maria Sciandra, Corporate Secretary 100 North Wilkes Barre Blvd.
Corporate Secretary Wilkes Barre, Pennsylvania 18702
SCHEDULE 13D
CUSIP No. 53631T102000 Page 14 of 17 pages
--------------------------------------------------------------------------------
SCHEDULE III
Shares purchased by musicmaker.com, Inc.
Number of
Date Shares Price Per Share Cost(1)
---- --------- --------------- -----------
8/14/01 2,000 $2.25 $4,500.00
8/15/01 100,000 $2.33 $233,000.00
8/16/01 5,000 $2.30 $11,500.00
8/21/01 10,000 $2.30 $23,000.00
8/27/01 20,000 $2.33 $46,600.00
8/28/01 15,000 $2.38 $35,700.00
8/28/01 5,000 $2.28 $11,400.00
9/4/01 12,000 $2.37 $28,400.00
9/5/01 2,500 $2.31 $5,775.00
9/5/01 1,000 $2.32 $2,320.00
9/6/01 10,000 $2.33 $23.300.00
9/17/01 7,000 $2.14 $14,980.00
9/17/01 5,000 $2.06 $10,300.00
9/18/01 10,000 $2.135 $21,350.00
9/19/01 10,000 $2.197 $21,970.00
9/20/01 10,000 $2.18 $21,800.00
9/21/01 6,500 $2.07 $13,455.00
9/24/01 25,000 $2.12 $53,000.00
9/24/01 10,000 $2.10 $21,000.00
9/25/01 50,000 $2.048 $102,400.00
9/26/01 25,000 $2.035 $50,875.00
9/27/01 30,000 $2.052 $61,560.00
9/28/01 27,500 $2.07 $56,925.00
10/1/01 30,000 $2.075 $62,250.00
10/4/01 30,000 $2.13 $63,900.00
10/5/01 50,000 $2.135 $106,750.00
10/5/01 7,000 $2.13 $14,910.00
----------
(1) Excludes commissions and other execution-related costs.
SCHEDULE 13D
CUSIP No. 53631T102000 Page 15 of 17 pages
--------------------------------------------------------------------------------
Shares purchased by Jewelcor Management, Inc.
Number of
Date Shares Price Per Share Cost(2)
---- --------- --------------- -----------
8/16/01 10,000 $2.30 $23,000.00
8/16/01 50,000 $2.32 $116,000.00
8/20/01 20,000 $2.30 $46,000.00
8/21/01 20,000 $2.30 $46,000.00
8/22/01 12,500 $2.29 $28,625.00
8/23/01 13,000 $2.30 $29,900.00
8/24/01 10,000 $2.312 $23,120.00
8/27/01 25,000 $2.33 $58,250.00
9/7/01 10,000 $2.316 $23,160.00
9/17/01 3,000 $2.03 $6,090.00
9/17/01 7,000 $2.14 $14,980.00
9/18/01 20,000 $2.135 $42,700.00
9/19/01 12,000 $2.197 $26,364.00
9/20/01 10,500 $2.18 $22,890.00
9/25/01 75,000 $2.048 $153,600.00
9/26/01 25,000 $2.035 $50,875.00
9/27/01 40,000 $2.052 $82,080.00
9/28/01 10,000 $2.07 $20,700.00
10/1/01 27,500 $2.0752 $57,068.00
10/4/01 50,000 $2.13 $106,500.00
10/5/01 25,000 $2.13 $53,250.00
----------
(2) Excludes commissions and other execution-related costs.
SCHEDULE 13D
CUSIP No. 53631T102000 Page 16 of 17 pages
--------------------------------------------------------------------------------
Shares purchased by Barington Companies Equity Partners, L.P.
Number of
Date Shares Price Per Share Cost(3)
---- --------- --------------- -----------
8/16/01 50,000 $2.32 $117,000.00
8/16/01 10,000 $2.30 $23,000.00
8/20/01 15,000 $2.30 $34,500.00
8/20/01 2,000 $2.30 $4,600.00
8/21/01 20,000 $2.30 $46,000.00
8/22/01 12,500 $2.29 $28,625.00
8/23/01 10,000 $2.30 $23,000.00
8/24/01 7,500 $2.312 $17,340.00
8/27/01 15,000 $2.33 $34,950.00
8/29/01 1,500 $2.31 $3,465.00
9/6/01 5,000 $2.30 $11,500.00
9/7/01 10,000 $2.316 $23,160.00
9/10/01 2,500 $2.25 $5,625.00
9/17/01 5,000 $2.01 $10,050.00
9/18/01 20,000 $2.135 $42,700.00
9/19/01 14,000 $2.197 $30,758.00
9/25/01 25,000 $2.048 $51,200.00
9/26/01 25,000 $2.035 $50,875.00
9/27/01 30,000 $2.052 $61,560.00
9/28/01 10,000 $2.07 $20,700.00
10/1/01 10,000 $2.075 $20,750.00
10/4/01 14,200 $2.11 $29,962.00
10/4/01 20,000 $2.13 $42,600.00
10/5/01 2,000 $2.12 $4,240.00
10/5/01 3,000 $2.12 $6,360.00
----------
(3) Excludes commissions and other execution-related costs.
SCHEDULE 13D
CUSIP No. 53631T102000 Page 17 of 17 pages
--------------------------------------------------------------------------------
Shares purchased by Ramius Securities, LLC
Number of
Date Shares Price Per Share Cost(4)
---- --------- --------------- -----------
8/20/01 15,000 $2.30 $34,500.00
8/21/01 20,000 $2.30 $46,000.00
8/23/01 10,000 $2.30 $23,000.00
8/24/01 7,500 $2.312 $17,340.00
8/27/01 15,000 $2.33 $34,950.00
9/6/01 10,000 $2.33 $23,300.00
9/7/01 12,000 $2.316 $27,792.00
Shares purchased by Domrose Sons Partnership
Number of
Date Shares Price Per Share Cost(5)
---- --------- --------------- -----------
9/27/01 8,000 $2.04 $16,320.00
----------
(4) Excludes commissions and other execution-related costs.
(5) Excludes commissions and other execution-related costs.
EX-99.1
3
kl10015_99-1.txt
AGREEMENT OF JOINT FILING
EXHIBIT 1
Agreement of Joint Filing
Pursuant to 13d-1(f) promulgated under the Securities Exchange Act
of 1934, as amended, the undersigned persons hereby agree to file with the
Securities and Exchange Commission the Statement on Schedule 13D (the
"Statement") to which this Agreement is attached as an exhibit, and agree that
such Statement, as so filed, is filed on behalf of each of them.
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
Dated: October 8, 2001
MUSICMAKER.COM, INC.
By /s/ James Mitarotonda
-------------------------------------
Name: James Mitarotonda
Title: President and Chief Executive
Officer
JEWELCOR MANAGEMENT, INC.
By /s/ Seymour Holtzman
-------------------------------------
Name: Seymour Holtzman
Title: Chairman and Chief Executive
Officer
BARINGTON COMPANIES EQUITY PARTNERS, L.P.
By: Barington Companies Investors,
LLC, its general partner
By /s/ James Mitarotonda
-------------------------------------
Name: James Mitarotonda
Title: Manager
RAMIUS SECURITIES, LLC
By: Ramius Capital Group, LLC, its
managing member
By /s/ Peter A. Cohen
-------------------------------------
Name: Peter A. Cohen
Title: Manager
DOMROSE SONS PARTNERSHIP
By /s/ James Mitarotonda
-------------------------------------
Name: James Mitarotonda
Title: Partner
-2-
EX-99.2
4
kl10015_e99-2.txt
CORRESPONDENCE
EXHIBIT 2
October 8, 2001
Gerald W. Kearby
President and Chief Executive Officer
Liquid Audio, Inc.
800 Chesapeake Drive
Redwood City, California 94063
Dear Mr. Kearby:
Please be advised that musicmaker.com, Inc., Barington Companies Equity
Partners, L.P., Jewelcor Management, Inc. and certain other reporting persons
have filed a Schedule 13D with regard to the ownership of Liquid Audio, Inc.
common stock, currently aggregating approximately 6.3% of the outstanding
shares. Also attached for your information is a copy of a press release that
was issued today.
We are requesting that the number of directors on Liquid Audio's Board of
Directors be increased from five to six and that individuals proposed by the
reporting persons be appointed to fill the two current vacancies on the Board
and the one newly created seat. We are confident that we can make significant
contributions to enhancing shareholder value.
We intend, depending on market conditions, to seek to acquire up to
approximately an additional 8.6% of the company's common stock, or approximately
1,950,000 additional shares. If the shareholder rights plan recently instituted
by the Board is rescinded, we would be willing to increase our ownership to up
to 25% of the company's outstanding shares of common stock. We may consider
other actions, including but not limited to the possibility of making a tender
offer to acquire shares of the company's common stock.
We would like to meet with you as soon as possible to have a candid
exchange of views as to how to enhance shareholder value. We will call you to
schedule an appointment. We look forward to meeting with you.
Sincerely,
MUSICMAKER.COM, INC.
By /s/ Seymour Holtzman
-----------------------------------------
Seymour Holtzman
Chairman
By /s/ James Mitarotonda
-----------------------------------------
James Mitarotonda
President and Chief Executive Officer
EX-99.3
5
kl10015_ex99-3.txt
PRESS RELEASE
EXHIBIT 3
FOR IMMEDIATE RELEASE For Information Contact:
James Mitarotonda (212) 974-5701
Musicmaker.com and others acquire 6.3% stake in Liquid Audio
New York, New York -- October 8, 2001 -- James Mitarotonda, President and
CEO, and Seymour Holtzman, Chairman of the Board, of musicmaker.com, Inc.
(Symbol: "HITS"), announced today that musicmaker.com, Inc., entities
affiliated with Mitarotonda and Holtzman and certain other parties have
acquired a 6.3% stock ownership stake in Liquid Audio, Inc. (NASDAQ: LQID).
Liquid Audio provides software applications and services that enable the secure
delivery and sale of digital music over the Internet.
Musicmaker.com, Inc. and such other persons further announced the intention,
depending on market conditions, to seek to acquire up to approximately an
additional 8.6% of the company's common stock, or approximately an additional
1,950,000 shares.
On August 7, 2001, the Board of Directors of Liquid Audio instituted a
"shareholder rights plan" or "poison pill" which has the effect of restricting
any entity from acquiring more than 15% of the company's outstanding common
stock without prior Board approval. The contemplated purchases referred to above
would increase the aggregate stock ownership interest of musicmaker.com, Inc.
and the other parties mentioned to just below 15%. In a letter to the company
today, Mitarotonda and Holtzman have informed the company that if the company's
shareholder rights plan is rescinded, musicmaker.com, Inc. and such other
persons would be willing to increase their ownership to up to 25% of the
outstanding shares of common stock. Mitarotonda and Holtzman have also requested
that the number of directors on the company's Board be increased from five to
six and that individuals proposed by musicmaker.com and such other persons be
appointed to fill the two current vacancies and the one newly created seat. They
also indicated that these entities may consider other actions, including but not
limited to the possibility of making a tender offer to acquire shares of the
company's common stock.
As of August 14, 2001, the company had approximately 22.6 million shares of
common stock outstanding.
# # #