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.
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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.
Blank Rome Tenzer Greenblatt LLP
405 Lexington Avenue, New York, New York 10174 (212) 885-5442
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Address and Telephone Number of Person Authorized to Receive Notice and
Communications)
December 21, 1999
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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>
SCHEDULE 13D/A
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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)
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.
<PAGE>
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
<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: February 3, 2000
/s/ Norton Herrick
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Norton Herrick
Page 4 of 4 Pages
