UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
musicmaker.com, Inc.
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
62757C108
(CUSIP Number)
James Mitarotonda
BCG Strategic Investors, LLC
888 Seventh Avenue
17th Floor
New York, New York 10019
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
December 6, 2000
(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 ss.ss. 240.13d-1(e), 240.13d-1(f), or 240.13d-1(g), check
the following box: |_|
<PAGE>
SCHEDULE 13D
CUSIP No.62757C108
-------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BCG Strategic Investors, LLC
-------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------
7) SOLE VOTING POWER
NUMBER OF 1,209,866
SHARES ----------------------------------------------------
BENEFICIALLY 8) SHARED VOTING POWER
OWNED BY none
EACH ----------------------------------------------------
REPORTING 9) SOLE DISPOSITIVE POWER
PERSON 1,209,866
WITH ----------------------------------------------------
10) SHARED DISPOSITIVE POWER
none
-------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,209,866
-------------------------------------------------------------------------------
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
-------------------------------------------------------------------------------
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
36.51%
-------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON
OO
-------------------------------------------------------------------------------
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<PAGE>
SCHEDULE 13D
CUSIP No. 62757C108
-------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Barington Capital Group, L.P.
-------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------
7) SOLE VOTING POWER
NUMBER OF 18,500
SHARES -----------------------------------------------------
BENEFICIALLY 8) SHARED VOTING POWER
OWNED BY none
EACH -----------------------------------------------------
REPORTING 9) SOLE DISPOSITIVE POWER
PERSON 18,500
WITH -----------------------------------------------------
10) SHARED DISPOSITIVE POWER
none
-------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
18,500
-------------------------------------------------------------------------------
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%
-------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON
PN
-------------------------------------------------------------------------------
-4-
<PAGE>
SCHEDULE 13D
CUSIP No. 69912K206
-------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Barington Companies Equity Partners, L.P.
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
-------------------------------------------------------------------------------
7) SOLE VOTING POWER
NUMBER OF 16,900
SHARES -----------------------------------------------------
BENEFICIALLY 8) SHARED VOTING POWER
OWNED BY none
EACH -----------------------------------------------------
REPORTING 9) SOLE DISPOSITIVE POWER
PERSON 16,900
WITH -----------------------------------------------------
10) SHARED DISPOSITIVE POWER
none
-------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
16,900
-------------------------------------------------------------------------------
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%
-------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON
PN
-------------------------------------------------------------------------------
-5-
<PAGE>
SCHEDULE 13D
CUSIP No. 69912K206
-------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
dot com Investment Corporation
-------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------
7) SOLE VOTING POWER
NUMBER OF 26,200
SHARES -------------------------------------------------------
BENEFICIALLY 8) SHARED VOTING POWER
OWNED BY none
EACH -------------------------------------------------------
REPORTING 9) SOLE DISPOSITIVE POWER
PERSON 26,200
WITH -------------------------------------------------------
10) SHARED DISPOSITIVE POWER
none
-------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
26,200
-------------------------------------------------------------------------------
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%
-------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON
CO
-------------------------------------------------------------------------------
-6-
<PAGE>
Item 1. Security and Issuer.
This Statement on Schedule 13D (the "Statement") relates to the
Common Stock, $.01 par value (the "Common Stock"), of musicmaker.com, Inc., a
Delaware corporation ("musicmaker.com"). The principal executive offices of
musicmaker.com are located at 1740 Broadway, 23rd Floor, New York, New York
10019.
Item 2. Identity and Background.
(a) - (c) This statement is being filed by BCG Strategic
Investors, LLC ("BCG"), Barington Capital Group, L.P., Barington Companies
Equity Partners, L.P. and dot com Investment Corporation (collectively, the
"Reporting Entities").
BCG is a Delaware limited liability company formed to acquire, hold
and dispose of the Common Stock. The address of the principal business and
principal offices of BCG is 888 Seventh Avenue, 17th Floor, New York, New York
10019.
Each of James Mitarotonda and Seymour Holtzman is a Manager of
BCG. The business address of James Mitarotonda is c/o Barington Capital
Group, L.P., 888 Seventh Avenue, 17th Floor, New York, New York 10019. The
business address of Seymour Holtzman is c/o dot com Investment Corporation,
100 North Wilkes Barre Blvd., 4th Floor, Wilkes Barre, PA 18702. Each of
Barington Capital Group, L.P., Barington Companies Equity Partners, L.P. and
dot com Investment Corporation is a member of BCG.
Barington Capital Group, 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 Capital Group, L.P. is 888 Seventh Avenue,
17th Floor, New York, New York 10019.
The general partner of Barington Capital Group, L.P. is LNA
Capital Corp. LNA Capital Corp. is a Delaware corporation formed to be the
general partner of Barington Capital Group, L.P. The address of the
principal business and principal offices of LNA Capital Corp. is: c/o
Barington Capital Group, L.P., 888 Seventh Avenue, 17th Floor, New York, New
York 10019. James Mitarotonda is the Chairman, President and Chief Executive
Officer of LNA Capital Corp.
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.
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<PAGE>
dot com Investment Corporation is a Delaware corporation 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 dot com Investment Corporation is 100 North Wilkes Barre Blvd., 4th Floor,
Wilkes Barre, PA 18702.
Seymour Holtzman is the President and sole director, and Barry J.
Booth is the Secretary and Treasurer, of dot com Investment Corporation. The
business address of each of Seymour Holtzman and Barry J. Booth is c/o dot com
Investment Corporation, 100 North Wilkes Barre Blvd., 4th Floor, Wilkes Barre,
PA 18702.
The principal occupation of James Mitarotonda is Chairman of
Barington Capital Group, L.P. The principal occupations of Seymour Holtzman are
the retail and wholesale jewelry business and investing.
(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.
On December 6, 2000, BCG purchased from Virgin Holdings, Inc.
1,209,866 shares of Common Stock for an aggregate purchase price of $3,024,665,
pursuant to a Stock Purchase Agreement dated as of December 6, 2000 (the "Stock
Purchase Agreement") between BCG and Virgin Holdings, Inc. The Stock Purchase
Agreement is filed as Exhibit 1 to this Statement and is incorporated herein by
reference. All of the funds used by BCG to acquire the 1,209,866 shares of
Common Stock were contributed to BCG by the members of BCG and the purchases
were funded out of working capital.
On various dates from November 28, 2000 through December 7, 2000,
Barington Capital Group, L.P. purchased an aggregate of 18,500 shares of Common
Stock in the open market for an aggregate purchase price of $46,250. On various
dates from November 28, 2000 through December 6, 2000, Barington Companies
Equity Partners, L.P. purchased an aggregate of 16,900 shares of Common Stock in
the open market for an aggregate purchase price of $42,250. On various dates
from November 24, 2000 through December 7, 2000, dot com Investment Corporation
purchased an aggregate of 26,200 shares of Common Stock for an aggregate
purchase price of $65,937.50. All of the purchases made in the open market by
the various Reporting Entities were funded by working capital, which may, at any
given time, include margin loans made by brokerage firms in the ordinary course
of business.
-8-
<PAGE>
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 musicmaker.com.
On December 11, 2000, representatives of BCG met with the management
of musicmaker.com and its directors, attorneys and investment bankers. During
such meeting, BCG requested representation on musicmaker.com's board of
directors. BCG also discussed possible ways to improve stockholder value
including the immediate reduction of expenses, the termination of
musicmaker.com's operations, alternative uses or the sale of the manufacturing
facility operated by musicmaker.com, the buyback of the Common Stock and
combinations with other companies.
On December 13, 2000, James Mitarotonda, as a representative of BCG,
met with the chief executive officer of musicmaker.com. BCG requested that
musicmaker.com's three vacant seats on its board of directors be filled by BCG
appointees. In addition, BCG expressed its view that all current business
operations of musicmaker.com should be shut down immediately and that the
capital of musicmaker.com should be redeployed in a manner that will preserve
and enhance stockholder value. BCG has requested from musicmaker.com, but not
yet received, a copy of musicmaker.com's stockholder rights plan which was
publicly announced on December 7, 2000.
Each of the Reporting Entities reserves the right to increase or
decrease the size of its investment in musicmaker.com subject to the
restrictions under musicmaker.com's stockholder rights plan. Each of the
Reporting Entities reserves the right to take stockholder action pursuant to a
public proxy or consent solicitation made pursuant to, and in accordance with,
the Securities Exchange Act of 1934, as amended, and applicable rules and
regulations thereunder, and the organizational documents of musicmaker.com.
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 Item 4 of this Statement.
Item 5. Interest in Securities of the Issuer.
(a) As of the date hereof, the Reporting Entities own an aggregate
of 1,271,466 shares of Common Stock, representing approximately 38.36% of the
outstanding shares of Common Stock based upon the 3,314,042 shares of Common
Stock reported by musicmaker.com to be issued and outstanding as of November 6,
2000 in its Quarterly Report on Form 10-Q for the quarter ended September 30,
2000.
As of the date hereof, BCG beneficially owns an aggregate of
1,209,866 shares of Common Stock, representing approximately 36.51% of the
outstanding shares of Common Stock.
-9-
<PAGE>
As of the date hereof, Barington Capital Group, L.P. beneficially
owns an aggregate of 18,500 shares of Common Stock, representing less than 1% of
the outstanding shares of Common Stock.
As of the date hereof, Barington Companies Equity Partners, L.P.
beneficially owns an aggregate of 16,900 shares of Common Stock, representing
less than 1% of the outstanding shares of Common Stock.
As of the date hereof, dot com Investment Corporation beneficially
owns an aggregate of 26,200 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 1, 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.
dot com Investment Corporation has granted to Barington Capital
Group, L.P. the right to receive, after BCG after BCG has distributed to dot com
Investment Corporation an amount equal to the total capital contribution of dot
com Investment Corporation to BCG, an amount equal to 10% of the distributions
received from time to time by dot com Investment Corporation from BCG, whether
the distributions are in cash or stock. In the event the distribution is in the
stock of any entity, dot com Investment Corporation has the option to pay the
foregoing 10% interest to Barington Capital Group, L.P. in cash or the stock of
such entity.
Except as described elsewhere in this Statement, to the best
knowledge of each of the Reporting Entities, there exist no contracts,
arrangements, understandings or relationships (legal or otherwise) among the
persons named in Item 2 and between such persons and any person with respect to
any securities of musicmaker.com, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits or division of profits or
loss.
Item 7. Material to be Filed as Exhibits.
1. Agreement of Joint Filing among BCG, Barington Capital Group, L.P.,
Barington Companies Equity Partners, L.P. and dot com Investment
Corporation dated December 18, 2000.
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<PAGE>
2. Stock Purchase Agreement dated as of December 6, 2000, by and between BCG
and Virgin Holdings, Inc.
-11-
<PAGE>
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: December 18, 2000
BCG STRATEGIC INVESTORS, LLC
By /s/ James Mitarotonda
------------------------------------
Name: James Mitarotonda
Title: Manager
BARINGTON CAPITAL GROUP, L.P.
By: LNA Capital Corp., its general
partner
By /s/ James Mitarotonda
------------------------------------
Name: James Mitarotonda
Title: Chairman, President and C.E.O.
BARINGTON COMPANIES EQUITY
PARTNERS, L.P.
By: BCG Strategic Investors LLC, its general
partner
By /s/ James Mitarotonda
------------------------------------
Name: James Mitarotonda
Title: Manager
DOT COM INVESTMENT CORPORATION
By: /s/ Seymour Holtzman
-----------------------------------
Name: Seymour Holtzman
Title: President
-12-
<PAGE>
SCHEDULE 1
Shares purchased by Barington Companies Equity Partners, L.P.
Date Number of Shares Price Per Share (1) Cost
---- ---------------- --------------- ----------
11/28/00 1,500 $2.50 $3,750.00
11/30/00 6,000 $2.50 $15,000.00
12/1/00 2,500 $2.50 $6,250.00
12/4/00 5,000 $2.50 $12,500.00
12/6/00 1,900 $2.50 $4,750.00
Shares purchased by Barington Capital Group, L.P.
Date Number of Shares Price Per Share Cost
---- ---------------- --------------- ----------
11/28/00 1,500 $2.50 $3,750.00
12/1/00 2,500 $2.50 $6,250.00
12/5/00 5,000 $2.50 $12,500.00
12/7/00 9,500 $2.50 $23,750.00
Shares purchased by dot com Investment Corporation
Date Number of Shares Price Per Share Cost
---- ---------------- --------------- ----------
11/24/00 2,000 $2.56 $5,125.00
11/27/00 3,700 $2.50 $9,250.00
11/28/00 3,000 $2.50 $7,500.00
12/1/00 4,500 $2.50 $11,250.00
12/4/00 8,000 $2.50 $20,000.00
12/7/00 5,000 $2.56 $12,812.50
-13-
--------------------
(1) Excludes commissions and other execution-related costs.
<PAGE>
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: December 18, 2000
BCG STRATEGIC INVESTORS, LLC
By /s/ James Mitarotonda
------------------------------------
Name: James Mitarotonda
Title: Manager
BARINGTON CAPITAL GROUP, L.P.
By: LNA Capital Corp., its general partner
By /s/ James Mitarotonda
------------------------------------
Name: James Mitarotonda
Title: Chairman, President and C.E.O.
BARINGTON COMPANIES EQUITY
PARTNERS, L.P.
By: BCG Strategic Investors LLC, its general
partner
By /s/ James Mitarotonda
------------------------------------
Name: James Mitarotonda
Title: Manager
DOT COM INVESTMENT CORPORATION
By: /s/ Seymour Holtzman
-----------------------------------
Name: Seymour Holtzman
Title: President
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<PAGE>
EXHIBIT 2
STOCK PURCHASE AGREEMENT
