UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 2)
Under the Securities Exchange Act of 1934
musicmaker.com, Inc.
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(Name of Issuer)
Common Stock, $.01 par value
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(Title of Class of Securities)
62757C108
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(CUSIP Number)
James Mitarotonda
BCG Strategic Investors, LLC
888 Seventh Avenue
17th Floor
New York, New York 10019
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(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
January 4, 2001
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(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: |_|
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Introduction. This amends and supplements the Schedule 13D dated
December 18, 2000, as amended by Amendment No. 1 thereto dated December 19, 2000
(the "Schedule"), filed with the Securities and Exchange Commission by BCG
Strategic Investors, LLC ("BCG"), Barington Capital Group, L.P., Barington
Companies Equity Partners, L.P. and dot com Investment Corporation with respect
to the common stock, $.01 par value (the "Common Stock"), of musicmaker.com,
Inc., a Delaware corporation ("musicmaker.com").
Item 4 of the Schedule 13D, "Purpose of Transaction," is
amended and supplemented by adding the following:
On January 4, 2001, James Mitarotonda, as a representative of
BCG, telephoned Devarajan S. Puthukarai, the chief executive officer of
musicmaker.com and requested that musicmaker.com's three vacant seats on its
board of directors be filled by BCG's nominees. Mr. Puthukarai, on behalf of
musicmaker.com's current board of directors, rejected Mr. Mitarotonda's request.
In response, on January 4, 2001, BCG sent a letter to musicmaker.com, a copy of
which is attached hereto as Exhibit 3.
Item 7 of the Schedule 13D, "Material to be Filed as
Exhibits," is amended by adding the following:
3. Letter dated January 4, 2001 from BCG to musicmaker.com.
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<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: January 4, 2001
BCG STRATEGIC INVESTORS, LLC
By /s/ James Mitarotonda
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Name: James Mitarotonda
Title: Manager
BARINGTON CAPITAL GROUP, L.P.
By: LNA Capital Corp., its general partner
By /s/ James Mitarotonda
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Name: James Mitarotonda
Title: Chairman, President and C.E.O.
BARINGTON COMPANIES EQUITY PARTNERS, L.P.
By: Barington Companies Investors, LLC
By /s/ James Mitarotonda
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Name: James Mitarotonda
Title: Manager
DOT COM INVESTMENT CORPORATION
By: /s/ Seymour Holtzman
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Name: Seymour Holtzman
Title: President
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<PAGE>
EXHIBIT 3
BCG Strategic Investors, LLC
c/o Barington Capital Group, L.P.
888 Seventh Avenue, 17th Floor
New York, New York 10019
January 4, 2001
musicmaker.com, Inc.
1740 Broadway
23rd Floor
New York, New York 10019
Attention: Devarajan S. Puthukarai
Chairman, Chief Executive Officer and
President
Gentlemen:
We applaud the decision of the Company's board of directors,
announced yesterday, to engage in a prompt liquidation of the Company rather
than pursue a course of operation that had no prospects of profitability and is
rapidly dissipating the Company's remaining assets. We were deeply disappointed,
however, by the Company's failure to honor our request for board representation
that I communicated to you earlier today.
As you know, with over 38% of the Company's outstanding stock, our
group is by far the Company's largest stockholder. We have an overriding
interest in a liquidation process that will maximize the return to stockholders.
In this regard, we seek no special treatment, and indeed cannot receive such
treatment under Section 203 of the Delaware corporation law. Our interest is to
obtain the greatest possible return to all stockholders, in which we will share
on a pro rata basis.
We reiterate therefore our request for representation on the board
of directors. Commensurate with our holdings, we are asking the board to appoint
our representatives to fill the three existing vacancies on the board. Our
representatives will bring to the musicmaker board the judgment, experience,
energy, objectivity and incentive to produce the greatest liquidation
distribution to the Company's stockholders. We understand, for example, that the
Company is a party to costly leases and other contractual arrangements, whose
value to the Company was highly questionable even at the outset. Some of these
arrangements will require great skill and determination to terminate on terms
that are financially favorable to the Company. Our representatives will have
that skill and determination.
Virgin Holdings, from whom BCG purchased its shares, had three
representatives on the board. The Company's refusal to grant us equal
representation is unreasonable, unfair and suspect.
<PAGE>
Time is now of the essence. With each passing day, the Company's
assets diminish. Given our financial interest in the Company and our ability to
bring substantial value to the liquidation process, we reiterate our demand that
the board act promptly and affirmatively on our request for board
representation.
Please call me as soon as possible at (212) 974-5701 to discuss.
Very truly yours,
/s/ James Mitarotonda
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James A. Mitarotonda
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