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. 2)*
MediaBay, Inc.
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(Name of Issuer)
Common Stock, no par value
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(Title of Class of Securities)
58446J108
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(CUSIP Number)
Brad L. Shiffman, Esq.
Blank Rome Tenzer Greenblatt LLP
405 Lexington Avenue, New York, New York 10174 (212) 885-5442
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 23, 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 that 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 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. 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
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [x]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
NA
________________________________________________________________________________
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
1,408,080 (includes 1,300,000 shares of Common Stock
NUMBER OF issuable if options are exercised and convertible
notes are converted) as of August 23, 2000
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
0
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,408,080 (includes 1,300,000 shares of Common Stock
issuable if options are exercised and convertible notes
PERSON are converted) as of August 23, 2000
_________________________________________________________________
WITH 10 SHARED DISPOSITIVE POWER
0
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,408,080 (includes 1,300,000 shares of Common Stock issuable if options
are exercised and convertible notes are converted) as of August 23, 2000
________________________________________________________________________________
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 and 714,284 shares of Common Stock
issuable upon conversion of convertible notes which ae not convertible
within 60 days.
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.6%
________________________________________________________________________________
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.
Page 2 of 4 Pages
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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 a 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.
On June 19, 2000, the Reporting Person sold 35,450 shares of Common
Stock in open market transaction at an aggregate purchase price of $129,649.
On June 22, 2000, the Reporting Person sold 2,500 shares of Common
Stock in open market transactions at an aggregate price of $9,451.
On June 30, 2000, the Reporting Person sold 2,000 shares of Common
Stock in open market transactions at an aggregate purchase price of $6,685.
On July 31, 2000, the Reporting Person gifted 6,000 shares of Common
Stock to a relative.
On August 23, 2000, the Company agreed to reduce the conversion price of the
$3,000,000 principal amount convertible promissory notes (the "Convertible
Notes") issued by the Company to the Reporting Person to $1.75 per share in
consideration for the Reporting Person's agreement to, among other things, (i)
forego monthly interest payments under the Convertible Notes from July 31, 2000
through December 31, 2000, (ii) eliminate the anti-dilution provisions (other
than the mechanical anti-dilution) provisions of the Convertible Notes, (iii)
give the Company the option to make payments of interest on or after January 1,
2001 in cash or in registered shares of Common Stock based on the conversion
price of the Convertible Notes in effect on the scheduled interest payment dates
and (iv) loan or arrange for a loan to the Company, at the Company's written
request within 15 days after the entire amount of Convertible Notes are
converted by the Reporting Person, of up to $500,000 on terms substanially
similar to the Convertible Notes (except that the conversion price of any
convertible notes issued in connection with such loan shall be equal to the fair
market value of the Common Stock at the time of the loan). As part of the
transaction, the Reporting Person agreed not to convert $1,250,000 principal
amount of the Convertible Notes prior to April 21, 20001 without the Company's
prior written consent.
Item 5. Interest in Securities of the Issuer.
As of August 23, 2000, the Reporting Person beneficially owned an aggregate
of 1,408,080 shares of Common Stock, constituting approximately 9.6% 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 and 714,284
shares of Common Stock issuable upon conversion of $1,250,000 principal amount
of Convertible Notes which is not convertible without the Company's prior
written consent within 60 days from the date of this Amendment.
See Items 7 - 11 of the cover sheet of this Amendment.
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
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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: September 7, 2000
/s/ Evan Herrick
--------------------------------------------
Evan Herrick
Page 4 of 4 Pages
