| FORM 5 |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ANNUAL STATEMENT OF CHANGES IN BENEFICIAL OWNERSHIP Filed pursuant to Section 16(a) of the Securities Exchange Act of 1934 or Section 30(h) of the Investment Company Act of 1940 |
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| Check this box if no longer subject to Section 16. Form 4 or Form 5 obligations may continue. See Instruction 1(b). | |||||||||||||||||
| Form 3 Holdings Reported. | |||||||||||||||||
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Form 4 Transactions Reported. | ||||||||||||||||
1. Name and Address of Reporting Person*
(Street)
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2. Issuer Name and Ticker or Trading Symbol
MEDIABAY INC [ MBAY ] |
5. Relationship of Reporting Person(s) to Issuer
(Check all applicable)
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3. Statement for Issuer's Fiscal Year Ended
(Month/Day/Year) 12/31/1999 | ||||||||||||||||||||||||||
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4. If Amendment, Date of Original Filed
(Month/Day/Year) 02/03/2000 |
6. Individual or Joint/Group Filing (Check Applicable Line)
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| Table I - Non-Derivative Securities Acquired, Disposed of, or Beneficially Owned | |||||||||||||||
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| 1. Title of Security (Instr. 3) | 2. Transaction Date (Month/Day/Year) | 2A. Deemed Execution Date, if any (Month/Day/Year) | 3. Transaction Code (Instr. 8) | 4. Securities Acquired (A) or Disposed Of (D) (Instr. 3, 4 and 5) | 5. Amount of Securities Beneficially Owned at end of Issuer's Fiscal Year (Instr. 3 and 4) | 6. Ownership Form: Direct (D) or Indirect (I) (Instr. 4) | 7. Nature of Indirect Beneficial Ownership (Instr. 4) | ||||||||
| Amount | (A) or (D) | Price | |||||||||||||
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Table II - Derivative Securities Acquired, Disposed of, or Beneficially Owned (e.g., puts, calls, warrants, options, convertible securities) | ||||||||||||||
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| 1. Title of Derivative Security (Instr. 3) | 2. Conversion or Exercise Price of Derivative Security | 3. Transaction Date (Month/Day/Year) | 3A. Deemed Execution Date, if any (Month/Day/Year) | 4. Transaction Code (Instr. 8) | 5. Number of Derivative Securities Acquired (A) or Disposed of (D) (Instr. 3, 4 and 5) | 6. Date Exercisable and Expiration Date (Month/Day/Year) | 7. Title and Amount of Securities Underlying Derivative Security (Instr. 3 and 4) | 8. Price of Derivative Security (Instr. 5) | 9. Number of derivative Securities Beneficially Owned Following Reported Transaction(s) (Instr. 4) | 10. Ownership Form: Direct (D) or Indirect (I) (Instr. 4) | 11. Nature of Indirect Beneficial Ownership (Instr. 4) | |||
| (A) | (D) | Date Exercisable | Expiration Date | Title | Amount or Number of Shares | |||||||||
| Convertible Senior Note Due December 31, 2004 | $11.125 | 07/06/1999 | 4D(1) | $4,350,000 | 06/11/1999 | 12/31/2004 | Common Stock | 391,011 | $4,350,000 | 0 | D | |||
| Convertible Senior Subordinated Note Due December 31, 2004 | $11.125 | 12/21/1999 | 4S(2) | $1,112,500 | 12/31/1998 | 12/31/2004 | Common Stock | 100,000 | $1,112,500 | $7,000,000 | D | |||
| Convertible Senior Subordinated Note Due December 31, 2004 | $11.125 | 12/30/1999 | 4S(2) | $887,500 | 12/31/1998 | 12/31/2004 | Common Stock | 79,775 | $887,500 | $7,000,000 | D | |||
| Common Stock Warrants (Right to Buy) | $8.41 | 12/21/1999 | 4A(3) | 25,958 | 12/21/1999 | 12/31/2003 | Common Stock | 25,958 | 25,958 | 811,667 | D | |||
| Common Stock Warrants (Right to Buy) | $8.41 | 12/30/1999 | 4A(3) | 20,709 | 12/30/1999 | 12/31/2003 | Common Stock | 20,709 | 20,709 | 811,667 | D | |||
| Explanation of Responses: |
| 1. The Issuer paid to the Reporting Person the $4,350,000 amount due on the convertible note, and thereupon cancelled the note. |
| 2. On December 21, 1999, the Reporting Person entered into an agreement (the Agreement) with a third party under which the third party agreed to purchase from the Reporting Person, in a series of payments due to be completed by January 31, 2000, $9,000,000 of the Convertible Senior Subordinated Promissory Note Due December 31, 2004. The note had an initial principal amount of $15,000,000, as described in note 1 of the Reporting Person's amended Form 4 for September 1999. The third party made payments at various intervals, including the $1,112,500 and $887,500 referenced above, reflecting the purchase of those portions of the note. The third party paid an aggregate of $4,223,750. On January 24, 2000, the Reporting Person and the third party entered into an agreement which terminated the Agreement and the third party's right and obligation to purchase the remainder of the note. |
| 3. Pursuant to a letter agreement dated December 31, 1998, between the Reporting Person and the Issuer, which is described in note 1 of the Reporting Person's amended Form 4 for September 1999, the Issuer issued to the Reporting Person warrants for 25,958 shares of Common Stock and 20,709 shares of Common Stock as a result of the refinancing of $1,112,500 and $887,500 of the $15,000,000 principal note mentioned in note 2 above. |
| Remarks: |
| Norton Herrick | 09/05/2003 | |
| ** Signature of Reporting Person | Date | |
| Reminder: Report on a separate line for each class of securities beneficially owned directly or indirectly. | ||
| * If the form is filed by more than one reporting person, see Instruction 4 (b)(v). | ||
| ** Intentional misstatements or omissions of facts constitute Federal Criminal Violations See 18 U.S.C. 1001 and 15 U.S.C. 78ff(a). | ||
| Note: File three copies of this Form, one of which must be manually signed. If space is insufficient, see Instruction 6 for procedure. | ||
| Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB Number. | ||