-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, C6kiK4W8ZewnuY+L3ZO9oeKGFN8/LstxZBqKj5mvf1rzuAo6VfQuIuCtn/YW7sbO BHPxXDgvKyZ/u9gDEcKHJA== 0001123292-03-000410.txt : 20030905 0001123292-03-000410.hdr.sgml : 20030905 20030905202155 ACCESSION NUMBER: 0001123292-03-000410 CONFORMED SUBMISSION TYPE: 4/A PUBLIC DOCUMENT COUNT: 1 CONFORMED PERIOD OF REPORT: 19990927 FILED AS OF DATE: 20030905 ISSUER: COMPANY DATA: COMPANY CONFORMED NAME: MEDIABAY INC CENTRAL INDEX KEY: 0001040973 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-CATALOG & MAIL-ORDER HOUSES [5961] IRS NUMBER: 650429858 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 BUSINESS ADDRESS: STREET 1: 2 RIDGEDALE AVENUE CITY: CEDAR KNOLLS STATE: NJ ZIP: 07927 BUSINESS PHONE: 9735399528 MAIL ADDRESS: STREET 1: 2 RIDGEDALE AVENUE CITY: CEDAR KNOLLS STATE: NJ ZIP: 07927 FORMER COMPANY: FORMER CONFORMED NAME: AUDIO BOOK CLUB INC DATE OF NAME CHANGE: 19970612 REPORTING-OWNER: OWNER DATA: COMPANY CONFORMED NAME: HERRICK NORTON CENTRAL INDEX KEY: 0000904829 FILING VALUES: FORM TYPE: 4/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-13469 FILM NUMBER: 03884843 BUSINESS ADDRESS: STREET 1: C/O HERRICK CO STREET 2: 2 RIDGEDALE AVE CITY: CEDAR KNOLLS STATE: NJ ZIP: 07927 BUSINESS PHONE: 973-539-1390 MAIL ADDRESS: STREET 1: C/O HERRICK CO STREET 2: 2 RIDGEDALE AVE CITY: CEDAR KNOLLS STATE: NJ ZIP: 07927 4/A 1 edgar.xml PRIMARY DOCUMENT X0201 4/A1999-09-271999-10-11 0001040973 MEDIABAY INC MBAY 0000904829 HERRICK NORTON C/O THE HERRICK COMPANY 2 RIDGEDALE AVENUE CEDAR KNOLLS NJ 07927 1010Convertible Senior Subordinated Note Due December 31, 200411.1251999-09-304D09000000.009000000.00D1998-12-312004-12-31Common Stock8089890DConvertible Senior Subordinated Note Due December 31, 20041999-09-304A09000000.009000000.00A1998-12-312004-12-31Common Stock808989808989D< value/>Common Stock Warrants (Right to Buy)12.001999-09-304D0500000D1998-12-312003-12-31Common Stock5000000DCommon Stock Warrants (Right to Buy)8.411999-09-304A0500000A1998-12-312003-12-31Common Stock500000625000DCommon Stock Warrants (Right to Buy)8.411999-09-304A0140000A1999-09-302003-12-31Common Stock140000765000DCommon Stock Warrants (Right to Buy)8.411999-09-274A0125000A1999-09-272003-12-31Common Stock125000125000DOn December 31, 1998, the Reporting Person and the Issuer entered into a letter agreement (Letter Agreement) pursuant to which, in consideration for the Reporting Person's purchase on December 31, 1998 of the Issuer's Convertible Senior Subordinated Promissory Note Due December 31, 2004 in the principal amount of $15,000,000 (which was reduced on January 12, 1999 by payment of $1,000,000 by the Issuer, to $14,000,000) (the Note), the Issuer agreed that if the Issuer's Board of Directors either did not accept an offer to refinance the Note or the Note was not refinanced on or prior to September 30, 1999, after September 30, 1999, upon receipt of approval of the Issuer's shareholders (i) the interest rate of the Note (9%) would increase to 11%, [Continuation of prior footnote] (ii) the conversion price of the Note ($11.125 per share) would be decreased to the lesser of the conversion price then in effect or the average of the closing bid price of the Common Stock for the five trading days prior to conversion and (iii) the exercise price ($12.00 per share) of the warrants to purchase 500,000 shares of Common Stock previously issued to the Reporting Person on December 31, 1998 would be reduced to the average of the 10 lowest closing bid prices of the Common Stock for the 30 trading days prior to the date that shareholder approval has been obtained, but not below $8.00 per share. The independent members of the Issuer's Board of Directors approved the terms of the Reporting Person's investment, including the Lette r Agreement. [Continuation of prior footnote] In consideration of the Reporting Person's investment in the Note, the Issuer also agreed in the Letter Agreement to issue to the Reporting Person additional warrants to purchase up to 350,000 shares of Common Stock that contained terms identical to the warrants to purchase 500,000 shares mentioned above. These warrants were issuable only if all or a portion of the Note was refinanced by anyone other than the Reporting Person or any of his affiliates and would be issuable on a pro rata basis in proportion to the principal amount of the Note that was refinanced. [Continuation of prior footnote] On September 27, 1999, the Issuer's shareholders approved the terms of the Letter Agreement. As a result of the revised conversion price, the number of shares to be acquired upon conversion of the Note was a minimum of 808,989 and could be greater if the alternative conversion price became applicable. On July 2, 1999, the Reporting Person and the Issuer entered into another letter agreement which clarified that the provisions of the December 31, 1998 Letter Agreement, which include the variable conversion rate of the Note and the issuance of warrants upon refinancing of the Note, were only applicable to the Note when held by the Reporting Person and were not applicable to all or a portion of the Note that may be transferred. These warrants were issued pursuant to the Letter Agreement dated December 31, 1998 described in note 1 above. The number of warrants issued represented the warrants issuable upon a refinancing of 40% of the $15,000,000 Note mentioned in note 1 above, which consisted of $1,000,000 paid by the Issuer on January 12, 1999 to reduce the principal amount of the Note, and a $5,000,000 refinancing of the Note on August 6, 1999. These warrants contain terms identical to the warrants to purchase 500,000 shares of Common Stock mentioned above in note 1. On June 11, 1999, the Reporting Person and the Issuer entered into a letter agreement pursuant to which, in consideration for the Reporting Person's purchase on June 11, 1999 of the Issuer's Convertible Senior Subordinated Promissory Note Due December 31, 2004 in the principal amount of $4,350,000 (the $4.35 Million Note), the Issuer agreed that if the Issuer's Board of Directors either did not accept an offer to refinance the $4.35 Million Note or the $4.35 Million Note was not refinanced on or prior to July 15, 1999, after July 15, 1999, upon receipt of approval of the Issuer's shareholders, the interest rate of the $4.35 Million Note would increase from 9% to 11% and the conversion price of the $4.35 Million Note would be decreased to the lesser of the conversion price then in effect or the average of the closing bid price of the Common Stock for the five trading days prior to conversion. The terms of this note were distinct from the $15,000,000 note mentioned above in note 1.[Continuation of prior footnote] The independent members of the Issuer's Board of Directors approved the terms of the Reporting Person's financing. In consideration for the Reporting Person's investment in the $4.35 Million Note, the Issuer agreed to issue to the Reporting Person additional warrants (containing terms identical to the warrants to purchase 500,000 shares mentioned above in note 1) to purchase 125,000 shares of Common Stock. These warrants were issuable only if the $4.35 Million Note was refinanced by anyone other than the Reporting Person or any of his affiliates. The $4.35 Million Note was repaid by the Issuer on July 6, 1999. On September 27, 1999, the Issuer's shareholders approved the terms of the letter agreement dated June 11, 1999, between the Issuer and the Reporting Person, and as a result of the repayment of the $4.35 Million Note on July 6, 1999, the Reporting Person became entitled to the warrants to purchase 125,000 shares. Norton Herrick2003-09-05 -----END PRIVACY-ENHANCED MESSAGE-----