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. 3)*
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)
December 31, 2002
(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 who 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
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*
NA
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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
363,265
NUMBER OF -----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
EACH -----------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 363,265
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
363,265
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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)
2.5%
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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
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 an 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.
This Amendment reports the following transactions:
(i) On December 16, 2002, the Reporting Person acquired 218,185 shares
of Common Stock in a private transaction for $255,276 through the
forgiveness of indebtedness.
(ii) On December 31, 2002, the Reporting Person sold (i) a $500,000
convertible senior subordinated promissory note due September 30,
2007 and (ii) 25,000 shares of Series A convertible preferred stock
for aggregate proceeds of $3,300,000 in a private transaction.
Item 4. Purpose of Transactions
The purpose of the transaction described in clause (i)(d) Item 5 below was
for private investment.
The purpose of the transaction described clause (iii) of item 3 was to
repay indebtedness.
Item 5. Interest in Securities of the Issuer.
As of December 31, 2002, the Reporting Person beneficially owned an
aggregate of 363,265 shares of Common Stock, constituting approximately 2.5% of
the outstanding Common Stock. This amount does not include any shares owned of
record or beneficially by Norton Herrick, the Reporting Person's father, Michael
Herrick or Howard Herrick, the Reporting Person's brothers, or any other family
member, as to which the Reporting Person disclaims beneficial ownership.
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
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 10, 2003
/s/ Evan Herrick
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Evan Herrick
Page 4 of 4 Pages