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. )*
MediaBay, Inc.
(Name of Issuer)
Common Stock, no par value
(Title of Class of Securities)
58446J 10 8
(CUSIP Number)
Brad L. Shiffman, Esq.
Blank Rome Tenzer Greenblatt LLP
405 Lexington Avenue, New York, New York 10174 (212) 885-5442
Name, Address and Telephone Number of Person Authorized to Receive Notice and
Communications)
April 24, 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 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).
<PAGE>
SCHEDULE 13D
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CUSIP NO. 58446J108 Page 2 of 4 Pages
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Evan Herrick
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
PF; BK; AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)|_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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7 SOLE VOTING POWER
NUMBER OF 1,006,700 (includes 900,000 shares of Common Stock issuable
SHARES if options are exercised and convertible notes are
BENEFICIALLY converted) as of April 24, 2000
OWNED BY
EACH -----------------------------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON
WITH 0
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9 SOLE DISPOSITIVE POWER
1,006,700 (includes 900,000 shares of Common Stock issuable
if options are exercised and convertible notes are
converted) as of April 24, 2000
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,006,700 (includes 900,000 shares of Common Stock issuable if options are
exercised and convertible notes are converted) as of April 24, 2000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|X| Does not include 150,000 shares of Common Stock issuable upon exercise
of options held by the Reporting Person as to which the Reporting
Person has transferred voting and dispositive power
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.0%
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14 TYPE OF REPORTING PERSON*
IN
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*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.
Page 2 of 4 Pages
<PAGE>
Item 1. Security and Issuer.
This statement relates to the Common Stock, no par value ("Common Stock")
issued by MediaBay, Inc. (formerly Audio Book Club, Inc.), a Florida corporation
(the "Company"), whose principal executive offices are located at 20 Community
Place, Morristown, New Jersey 07960. All share information in this statement
gives retroactive effect to a 16,282-for-1 split of the Common Stock effected in
October 1997.
Item 2. Identity and Background.
This statement is filed by Evan Herrick (the "Reporting Person"). The
address of the Reporting Person is 28 Smoke Rise Lane, Bedminster, New Jersey
07921. The Reporting Person's principal employment is with CFT, Inc., 28 Smoke
Rise Lane, Bedminster, New Jersey 07921. The Reporting Person is a United States
citizen.
The Reporting Person has not, during the last five years (i) been convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors),
or (ii) been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and 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 violations with respect to such laws.
Item 3. Source and Amount of Funds or other Consideration.
On October 22, 1997, the Reporting Person purchased 1,000 shares of Common
Stock at an aggregate purchase price of $10,000 in connection with the Company's
initial public offering.
On March 31, 1998, the Reporting Person purchased 3,700 shares in an open
market transaction at an aggregate price of $17,152.
On each of December 29, 1999, January 7, 2000 and February 4, 2000, the
Reporting Person loaned to the Company $1,000,000, for which the Reporting
Person was issued convertible promissory notes (the "Initial Notes"). On April
24, 2000, the Reporting Person exchanged the Initial Notes for new convertible
promissory notes (the "Convertible Notes"). Of the $3,000,000 purchase price of
the Initial Notes, $2,000,000 was obtained from personal funds and $1,000,000
was borrowed from Nations Bank.
On April 18, 2000, the Reporting Person purchased 102,000 shares of Common
Stock in open market transactions at an aggregate price of $401,650. The
Reporting Person borrowed $400,000 for this purchase from an affiliated company
of the Reporting Person.
Item 4. Purpose of Transaction.
The purpose of the acquisition of the shares of Common Stock by the
Reporting Person was for investment purposes. The Reporting Person has no plans
or proposals which relate to, or could result in any of the matters referred to
in Paragraphs (b) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
As of April 24, 2000, the Reporting Person beneficially owns an aggregate
of 1,006,700 shares of Common Stock, consisting of (i) 106,700 shares of Common
Stock, (ii) 150,000 shares of Common Stock issuable if options granted on
January 4, 2000 under the Company's 1999 Stock Incentive Plan are exercised and
(iii) 750,000 shares of Common Stock issuable if the Convertible Notes are
converted. This amount constitutes approximately 7.0% of the outstanding Common
Stock. This amount does not include 150,000 shares of Common Stock issuable upon
exercise of options held by the Reporting Person as to which the Reporting
Person has transferred voting and dispositive power. The percentage used herein
is calculated based upon the 13,421,866 shares of Common Stock issued and
outstanding at April 24, 2000, as provided by the Company. The Reporting Person
has sole voting and dispositive power with respect to all the shares of Common
Stock to which this statement relates. The Reporting Person has not effected any
transactions in shares of the Common Stock in the past 60 days other than as
indicated above.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
None.
Item 7. Materials to be filed as Exhibits.
None
Page 3 of 4 Pages
<PAGE>
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: May 1, 2000
/s/ Evan Herrick
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Evan Herrick
Page 4 of 4 Pages
