EXHIBIT 5
BCG Strategic Investors, LLC
888 Seventh Avenue
17th Floor
New York, New York 10019
January 5, 2001
VIA FACSIMILE AND COURIER
-------------------------
Mr. Devarajan S. Puthukarai
Chairman, Chief Executive Officer
and President
musicmaker.com, Inc.
1740 Broadway
23rd Floor
New York, New York 10019
Request for Stockholder List
Dear Mr. Puthukarai:
The undersigned, being the record owner of an aggregate of 1,209,866
shares of common stock, par value $.01 per share (the "Company Stock"), of
musicmaker.com, Inc., a Delaware corporation (the "Company"), hereby demands,
pursuant to Section 220 of the Delaware General Corporation Law, the right to
inspect, during the Company's usual business hours, the following records and
documents of the Company and to make copies or extracts therefrom:
A. A complete record or list of the Company's stockholders certified
by its transfer agent, which sets forth the name and address of
each stockholder and the number of shares of Company Stock
registered in the name of each stockholder as of the most recent
practicable date.
B. A magnetic computer tape list of the Company's stockholders as of
the most recent practicable date, which sets forth the name and
address of each stockholder and the number of shares of Company
Stock registered in the name of each stockholder, together with
any computer processing information that may be relevant to the
use of such computer tape, and a printout of such magnetic
computer tape for verification purposes.
C. All information in or which comes into the Company's possession
or control, or which can reasonably be obtained from nominees of
any central certificate depository system, concerning the number
and identity of the actual beneficial owners of Company Stock,
including a list of all owners who hold Company Stock in the name
of Cede & Co. or other similar nominees and any respondent bank
listings obtained pursuant to the requirements of Rule 14b-2
promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and a list or lists containing the name,
address, and number of shares of Company Stock attributable to
participants in any employee stock ownership, incentive, profit
sharing, savings, retirement, stock option, stock purchase,
restricted stock or other comparable plan of the Company in which
the voting of shares held by such plan is made, directly or
indirectly, individually or collectively, by participants in the
plan.
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D. As promptly as practicable, any and all omnibus proxies and
correspondent participant listings with respect to all nominees
and respondent banks which are currently in effect.
E. All lists, tapes and other data in or which come into the
possession or control of the Company, or which can reasonably be
obtained pursuant to Rules 14b-1 and 14b-2 promulgated under the
Exchange Act, which sets forth the name and address of, and the
number of shares owned by, each beneficial owner of Company Stock
who has not objected to having his or her name disclosed (the
"non-objecting beneficial owners" or "NOBO" list).
F. A "stop transfer" list or stop list relating to the shares of
Company Stock.
G. All additions, changes and corrections to any of the information
requested pursuant to paragraphs 1 through 6 from the date hereof
until the undersigned requests termination of the transmission of
such materials.
The undersigned agrees to bear the reasonable costs incurred by the
Company in connection with the production of the requested materials.
The purpose of this demand is to permit the undersigned to communicate
with other stockholders of the Company on matters relating to their interests as
stockholders, including the solicitation of consents to amend the By-laws of the
Company and to elect nominees of the undersigned and certain other persons as
directors.
The undersigned hereby designates Kramer Levin Naftalis & Frankel LLP and
its partners, employees and other persons designated by it acting together,
singly or in any combination, to conduct the requested examination and copying
of materials.
Please advise Julie K. Horowitz of Kramer Levin Naftalis & Frankel LLP
(Tel: 212-715-7783) as to the time and place that the requested information will
be made available in accordance with this request. As you are no doubt aware,
Delaware law requires your response to our request within five business days of
the date of this letter.
An affidavit relating to this demand has been attached to this letter.
Please acknowledge receipt of this letter by signing and dating the
enclosed copy of this letter and returning the same to the undersigned in the
enclosed envelope.
Very truly yours,
/s/ James Mitarotonda
---------------------
James Mitarotonda
RECEIPT ACKNOWLEDGED ON
January __, 2001
MUSICMAKER.COM, INC.
By:_________________________
Name:
Title:
<PAGE>
AFFIDAVIT
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
James Mitarotonda, having been duly sworn, deposes and says that he has
executed the stockholder demand to which this Affidavit is attached and that the
facts and statements contained in such demand are true and correct in all
material respects.
/s/ JAMES MITAROTONDA
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James Mitarotonda
SWORN TO AND SUBSCRIBED BEFORE ME
THIS 5TH DAY OF JANUARY, 2001
/s/ MARILYN L. SHAPIRO
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Notary Public
