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.
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(Name of Issuer)
Common Stock, no par value
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(Title of Class of Securities)
58446J 10 8
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(CUSIP Number)
Brad Shiffman, Esq.
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)
January 4, 2000
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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 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 1 of 4 Pages
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SCHEDULE 13D
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CUSIP NO. 58446J 10 8 Page 2 of 4 Pages
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Michael 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
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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 998,460 (includes options to acquire an aggregate of
SHARES 550,000 shares of Common Stock) as of January 11, 2000
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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8 SHARED VOTING POWER
0
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9 SOLE DISPOSITIVE POWER
998,460 (includes options to acquire an aggregate of
550,000 shares of Common Stock) as of January 11, 2000
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
998,460 (includes options to acquire an aggregate of 550,000 shares of
Common Stock) as of January 11, 2000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.1%
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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
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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 Michael Herrick, Co-Chief Executive Officer and
a principal shareholder of the Company (the "Reporting Person"). The business
address of the Reporting Person is c/o MediaBay, Inc., 20 Community Place,
Morristown, New Jersey 07960. The Reporting Person is a United States citizen.
Mr. Herrick 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 February 9, 1998, the Company issued to the reporting person pursuant to
the Company's 1997 Stock Option Plan (the "1997 Plan"), five-year options to
purchase 100,000 shares of Common Stock. On November 5, 1998, the Company issued
to the Reporting Person pursuant to the 1997 Plan five-year options to purchase
150,000 shares of Common Stock. On January 4, 2000, the Company issued to the
Reporting Person pursuant to the Company's 1999 Stock Incentive Plan (the "1999
Plan") ten-year options to purchase 300,000 shares of Common Stock.
On January 11, 2000, the M.E. Herrick Irrevocable Trust (the "Herrick
Trust") was terminated. Prior to the termination of the Herrick Trust, the
Herrick Trust held 488,460 shares of Common Stock, the Reporting Person was the
sole beneficiary of the Herrick Trust and Howard Herrick, the Reporting Person's
brother and an officer, director and principal shareholder of the Company, was
the sole trustee of the Herrick Trust. Upon the termination of the Herrick
Trust, the 488,460 shares of Common Stock held by the Trust were distributed to
Michael Herrick. In connection with the formation of the Company, between August
1993 and January 1994, the Herrick Trust acquired the 488,460 shares of Common
Stock.
Item 4. Purpose of Transaction.
The purpose of the acquisition of the shares of Common Stock by the Herrick
Trust which were subsequently distributed to the Reporting Person was for
control and 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 although in his capacity as
a director and executive officer of the Company he will be involved in any
decisions of the Company to issue additional securities and to continue the
Company's strategy which includes pursuing acquisitions of complementary
businesses. The Reporting Person may review or reconsider his position with
respect to the Company or to formulate plans or proposals with respect to any
such matter, but, except as noted above, has no present intention of doing so.
Item 5. Interest in Securities of the Issuer.
As of the January 11, 2000, the Reporting Person beneficially owns an
aggregate of 998,460 shares of Common Stock, constituting approximately 10.1% of
the outstanding Common Stock. The amount includes: (i) 488,460 shares owned of
record by the Reporting Person and (ii) 550,000 shares issuable upon plan
options granted to the Reporting Person. The percentage used herein is
calculated based upon the 9,338,272 shares of Common Stock issued and
outstanding at January 11, 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.
The Company registered all of the shares issuable under its 1997 Plan and
1999 Plan, including the shares underlying the Reporting Person's options (in
accordance with the terms of the options) in a registration statement on Form
S-8 which was declared effective by the Securities and Exchange Commission on
July 28, 1999.
Item 7. Materials to be filed as Exhibits.
None
Page 3 of 4 Pages
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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: January 17, 2000
/s/ Michael Herrick
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Michael Herrick
Page 4 of 4 Pages
