-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EIWbJ7nz2nJuuAlWLBQAXgpDdWZ4SJV1z0TL+/ucbhTP9jWml6bQS4IHFcBCJWEX 31uwhJa5tgEwRanUnqqk7g== 0000891554-00-000187.txt : 20000208 0000891554-00-000187.hdr.sgml : 20000208 ACCESSION NUMBER: 0000891554-00-000187 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20000207 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MEDIABAY INC CENTRAL INDEX KEY: 0001040973 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-CATALOG & MAIL-ORDER HOUSES [5961] IRS NUMBER: 650429858 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-52737 FILM NUMBER: 525033 BUSINESS ADDRESS: STREET 1: 2295 CORPORATE BLVD STE 222 CITY: BOCA RATON STATE: FL ZIP: 33431 BUSINESS PHONE: 5612411426 MAIL ADDRESS: STREET 1: 2295 CORPORATE BLVD 222 CITY: BOCA RATON STATE: FL ZIP: 33431 FORMER COMPANY: FORMER CONFORMED NAME: AUDIO BOOK CLUB INC DATE OF NAME CHANGE: 19970612 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HERRICK NORTON CENTRAL INDEX KEY: 0000904829 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 2295 CORPORATE BLVD N W SUITE 222 CITY: BOCA RATON STATE: FL ZIP: 33431 MAIL ADDRESS: STREET 1: AUDIO BOOK CLUB INC STREET 2: 2295 CORPORATE BLVD STE 222 CITY: BOCA RATON STATE: FL ZIP: 33431 SC 13D/A 1 SCHEDULE 13D/A 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) (Amendment No. 5)* MediaBay, Inc. - -------------------------------------------------------------------------------- Name of Issuer) Common Stock, no par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 58446J 10 8 - -------------------------------------------------------------------------------- (CUSIP Number) Brad Shiffman, Esq. Blank Rome Tenzer Greenblatt LLP 405 Lexington Avenue, New York, New York 10174 (212) 885-5442 - -------------------------------------------------------------------------------- Address and Telephone Number of Person Authorized to Receive Notice and Communications) December 21, 1999 - -------------------------------------------------------------------------------- (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 |_|. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D/A ===================== ================= CUSIP NO. 58446J 10 8 Page 2 of 4 Pages ===================== ================= ________________________________________________________________________________ 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Norton Herrick ________________________________________________________________________________ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] ________________________________________________________________________________ 3 SEC USE ONLY ________________________________________________________________________________ 4 SOURCE OF FUNDS* N/A ________________________________________________________________________________ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT [_] TO ITEMS 2(d) OR 2(e) ________________________________________________________________________________ 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States ________________________________________________________________________________ 7 SOLE VOTING POWER NUMBER OF SHARES 4,014,540 as of January 20, 2000 BENEFICIALLY _________________________________________________________________ OWNED BY 8 SHARED VOTING POWER EACH REPORTING 0 PERSON _________________________________________________________________ WITH 9 SOLE DISPOSITIVE POWER 4,014,540 as of January 20, 2000 _________________________________________________________________ 10 SHARED DISPOSITIVE POWER 0 ________________________________________________________________________________ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,014,540 (includes shares of Common Stock issuable upon exercise or conversion of options, warrants and a convertible note) as of January 20, 2000. ________________________________________________________________________________ 12 CHECK BOX IF THE AGGREGATE AMOUNT [X] IN ROW (11) EXCLUDES CERTAIN SHARES* Does not include 2,714,180 shares held by N. Herrick Irrevocable ABC Trust (the "N. Herrick Trust"), of which Norton Herrick is the sole beneficiary and in which he therefore may be deemed to have an economic interest. Mr. Herrick does not have voting power or dispositive power with respect to the 2,714,180 shares held by the N. Herrick Trust. ________________________________________________________________________________ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 31.0% ________________________________________________________________________________ 14 TYPE OF REPORTING PERSON* IN ________________________________________________________________________________ *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEM 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. This Amendment is being filed solely to reflect a change in the Reporting Person's beneficial ownership of the Common Stock, no par value (the "Common Stock") of MediaBay, Inc. (the "Company"). Except as amended hereby, there has been no change in the information contained in the Schedule 13D, as previously amended. Item 3. Source and Amount of Funds or other Consideration. Not Applicable Item 4. Purpose of Transaction. This Amendment reports the following transactions: On December 21, 1999, the Reporting Person entered into a letter agreement with a third party which provided that the third party would purchase the Reporting Person's $9 million principal amount convertible note (the "Convertible Note") issued by the Company. The third party purchased $4,223,750 principal amount of the Convertible Note. On January 24, 2000, the Reporting Person and the third party amended the letter agreement and terminated the third party's right to purchase any additional portion of the Convertible Note. Pursuant to the December 1998 Letter (as defined and described in Amendment No. 4 to this Schedule 13D), the Company issued to the Reporting Person warrants to purchase additional 98,554 shares of Common Stock at an exercise price of $8.41 per share from December 27, 1999 through January 20, 2000 as a result of the sale of the Convertible Note. On January 4, 2000, the Company granted to the Reporting Person options under its 1999 Stock Incentive Plan to purchase 300,000 shares of Common Stock at an exercise price of $10.375 per share. On January 11, 2000, the M.E. Herrick Irrevocable Trust (the "Trust") was terminated. The trustee of the Trust had granted to the Reporting Person sole dispositive poser over the shares held by the Trust, which dispositive power terminated upon termination of the Trust. Item 5. Interest in Securities of the Issuer. As of January 20, 2000, the Reporting Person beneficially owned an aggregate of 4,014,540 shares of Common Stock constituting approximately 31.0% of the outstanding Common Stock. See Items 7-11 of the cover sheet of this Amendment to this Schedule 13D. Item 7. Materials to be filed as Exhibits. None Page 3 of 4 Pages SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. DATE: February 3, 2000 /s/ Norton Herrick ------------------ Norton Herrick Page 4 of 4 Pages -----END PRIVACY-ENHANCED MESSAGE-----