AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 26, 2004.
                                                   REGISTRATION NO. 333-________

================================================================================

                       SECURITIES AND EXCHANGE COMMISSION
                             WASHINGTON, D.C. 20549

                                ----------------

                                    FORM S-8
                             REGISTRATION STATEMENT
                                      UNDER
                           THE SECURITIES ACT OF 1933

                                ----------------

                                 MEDIABAY, INC.
             (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)

                                ----------------

      FLORIDA             2 RIDGEDALE AVENUE, SUITE 300             65-0429858
  (State or other         CEDAR KNOLLS, NEW JERSEY 07927          (IRS employer
  jurisdiction of                (973) 539-9528                  identification
  incorporation or      (Address, including zip code, and            number)
   organization)             telephone number, including
                      area code, of registrant's principal
                               executive offices)

                               ------------------

          2 RIDGEDALE AVENUE, SUITE 300
          CEDAR KNOLLS, NEW JERSEY                            07927
          (Address of Principal Executive Offices)           (Zip Code)


                            2001 Stock Incentive Plan
                        --------------------------------
                              (Full Title of Plan)

                                 Jeffrey Dittus
                             Chief Executive Officer
                                 MediaBay, Inc.
                          2 Ridgedale Avenue, Suite 300
                         Cedar Knolls, New Jersey 07927
              ---------------------------------------------------
                     (Name and Address of Agent for Service)

                                    COPY TO:

                             Brad L. Shiffman, Esq.
                                Ethan Seer, Esq.
                                 Blank Rome LLP
                              405 Lexington Avenue
                            New York, New York 10174
                            Telephone: (212) 885-5000
                            Facsimile: (212) 885-5001

================================================================================

<PAGE>

<TABLE>
<CAPTION>
                         CALCULATION OF REGISTRATION FEE

---------------------------------------- ------------------ ----------------- ------------------- ------------------
                                                                PROPOSED           PROPOSED
                                                                MAXIMUM            MAXIMUM
TITLE OF EACH                                 AMOUNT            OFFERING          AGGREGATE           AMOUNT OF
CLASS OF SECURITIES                            TO BE           PRICE PER      OFFERING PRICE(2)     REGISTRATION
TO BE REGISTERED                           REGISTERED(1)      SECURITY(2)                                FEE
---------------------------------------- ------------------ ----------------- ------------------- ------------------
<S>                                          <C>                  <C>             <C>                  <C>
Common stock, no par value per share         3,500,000            $1.17           $4,105,485           $520.17

---------------------------------------- ------------------ ----------------- ------------------- ------------------
</TABLE>

(1)   In addition,  pursuant to Rule 416 under the Securities Act of 1933,  this
      Registration Statement also registers an indeterminate number of shares of
      common stock which may be issued pursuant to the anti-dilution  provisions
      of the stock options or other stock-based  awards granted or to be granted
      by the Registrant under its 2001 Stock Incentive Plan.

(2)   Calculated  solely for the purpose of  determining  the  registration  fee
      pursuant to Rule 457 under the  Securities  Act of 1933 and based upon (a)
      as to the  3,107,000  shares of common  stock  issuable  upon  exercise of
      options  previously  granted under the 2001 Stock  Incentive Plan upon the
      prices at which such  options may be  exercised,  (b) as to the  remaining
      393,000  shares  issuable  upon  exercise of options or other  stock-based
      awards  reserved for issuance  under the 2001 Stock  Incentive  Plan,  the
      basis of the  average of the high and low  prices for the common  stock as
      quoted on Nasdaq on July 22, 2004.

<PAGE>

      INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

      Item 1. Plan Information.*

      Item 2. Registrant Information and Employee Plan Annual Information.*

* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this  Registration  Statement in accordance  with Rule 428 under
the Securities Act of 1933 and the Note to Part I of Form S-8.


<PAGE>

                                 MEDIABAY, INC.

                        1,820,000 Shares of Common Stock

      This prospectus  relates to up to 1,820,000  shares of the common stock of
MediaBay,   Inc.,  which  have  been  registered  for  resale  by  some  of  our
shareholders  pursuant  to this  prospectus.  These  shares  are  issuable  upon
exercise of options granted under MediaBay's 2001 Stock Incentive Plan.

      The  common  stock  may be  offered  from  time  to  time  by the  selling
shareholders  through ordinary  brokerage  transactions in the  over-the-counter
markets, in negotiated transactions or otherwise, at market prices prevailing at
the time of sale or at  negotiated  prices and in other ways as described in the
"Plan of  Distribution."  MediaBay  will receive  proceeds from any exercise for
cash of the  options  but not from any sale of the shares of common  stock being
offered hereby that are underlying the options.

      The common stock is listed for trading on the Nasdaq National Market under
the symbol "MBAY".  On July 22, 2004, the closing sale price of the common stock
as reported by the Nasdaq National Market was $0.41.

      AN  INVESTMENT  IN THE COMMON  STOCK IS  SPECULATIVE  AND  INVOLVES A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 3.

      NEITHER THE  SECURITIES AND EXCHANGE  COMMISSION NOR ANY STATE  SECURITIES
COMMISSION HAS APPROVED OR  DISAPPROVED  OF THESE  SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.

                  The date of this Prospectus is July 26, 2004.

<PAGE>

                 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

      The following  documents  previously filed by MediaBay with the Securities
and Exchange Commission are incorporated herein by reference and shall be deemed
a part of this prospectus:

     (1)  Annual Report on Form 10-K for the year ended December 31, 2003;

     (2)  Quarterly Report on Form 10-Q for the period ended March 31, 2004;

     (3)  Current Report on Form 8-K filed with the SEC on January 30, 2004;

     (4)  Current Report on Form 8-K filed with the SEC on April 1, 2004;

     (5)  Current Report on Form 8-K filed with the SEC on April 12, 2004;

     (6)  Current Report on Form 8-K filed with the SEC on April 30, 2004;

     (7)  Current Report on Form 8-K filed with the SEC on May 26, 2004; and

     (8)  The  description  of our common stock  contained  in our  Registration
          Statement  on Form 8-A dated  November  12,  1999,  together  with any
          amendment or report filed with the SEC for the purpose of updating the
          description;

      All documents  MediaBay files  pursuant to Sections  13(a),  13(c),  14 or
15(d) of the Securities  Exchange Act of 1934, after the date of this prospectus
at 12 nd before the  termination of the offering of the securities  hereby shall
be deemed to be incorporated by reference in this prospectus and to be a part of
this  prospectus  on  the  date  of  filing  of  the  documents.  Any  statement
incorporated in this prospectus shall be deemed to be modified or superseded for
purposes of this  prospectus  to the extent that a statement  contained  in this
prospectus  or in any other  subsequently  filed  document  which also is, or is
deemed  to  be,  incorporated  by  reference  in  this  prospectus  modifies  or
supersedes the statement.  Any statement so modified or superseded  shall not be
deemed,  except as so  modified  or  superseded,  to  constitute  a part of this
prospectus or the registration statement of which it is a part.

      This  prospectus  incorporates  documents  by  reference  with  respect to
MediaBay that are not presented  herein or delivered  herewith.  These documents
are available  without charge to any person,  including any beneficial  owner of
our  securities,  to whom this  prospectus  is  delivered,  upon written or oral
request to Mr. John Levy,  MediaBay,  Inc., 2 Ridgedale Avenue, Suite 300, Cedar
Knolls, New Jersey 07927, telephone: (973) 539-9528.

      MediaBay is subject to the informational requirements of the Exchange Act.
We file reports,  proxy  statements  and other  information  with the SEC. These
reports  and  other  information  can be read and  copied  at the  SEC's  Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain
information on the operation of the Public  Reference Room by calling the SEC at
1-800-SEC-0330.  Our electronic  filings made through the SEC's  electronic data
gathering,  analysis and  retrieval  system are publicly  available  through the
SEC's worldwide web site (http://www.sec.gov).

                                       -2-

<PAGE>

                                   THE COMPANY

      MediaBay,  Inc.  is  a  marketer  of  spoken  audio  products,   including
audiobooks  and  old-time  radio  shows,  through  direct  response,  retail and
internet channels.  MediaBay markets audiobooks primarily through its Audio Book
Club and its  old-time  radio  programs  through  direct-mail  catalogs,  on the
internet at RadioSpirits.com and on a wholesale basis to major retailers.

                                  RISK FACTORS

      Prospective investors should consider carefully the following risk factors
before  purchasing  any shares of the common stock offered hereby by the selling
shareholders.

                    RISKS RELATING TO OUR FINANCIAL CONDITION

      WE HAVE A HISTORY OF LOSSES, ARE NOT CURRENTLY  PROFITABLE,  AND EXPECT TO
INCUR LOSSES IN THE FUTURE.

      Since our inception,  we have incurred significant losses. As of March 31,
2004,  we had  incurred  an  accumulated  deficit  of $103  million.  Losses are
continuing  and are  expected  to  continue.  We may not be able to achieve  and
sustain profitable operations.

      OUR  AUDITORS  EXPRESSED  DOUBT  ABOUT OUR  ABILITY TO CONTINUE AS A GOING
CONCERN IN THEIR AUDIT REPORT FOR THE FISCAL YEAR ENDED DECEMBER 31, 2003.

      Our auditors have included an explanatory paragraph in their audit opinion
with respect to our consolidated  financial statements at December 31, 2003. The
paragraph  states that our recurring losses from operations and our inability to
meet our debt obligations as they come due in 2004 raise substantial doubt about
our ability to continue as a going concern.  Furthermore, the factors leading to
and  the  existence  of the  explanatory  paragraph  may  adversely  affect  our
relationships with suppliers and other creditors and customers and may adversely
affect our ability to obtain additional financing.

      WE HAVE SIGNIFICANT  OUTSTANDING  INDEBTEDNESS  WHICH IMPOSES  SIGNIFICANT
RESTRICTIONS ON OUR BUSINESS.

      As of May 31, 2004 we had  approximately  $9.5 million of debt outstanding
under our credit facility and  approximately  $9.4 million  principal  amount of
debt outstanding and related accrued interest under promissory notes. Our credit
facility  restricts our ability to raise financing for working capital  purposes
because it requires us to use 50% of any  proceeds  from  equity  financings  to
repay amounts  outstanding  under the credit agreement and restricts our ability
to incur additional  indebtedness.  In addition, our existing indebtedness under
our line of credit limits or prohibits us from, among other things:

      o     merging into or consolidating with another corporation;

      o     selling all or substantially all of our assets;

      o     declaring or paying cash dividends; or

      o     materially changing the nature of our business.


                                       -3-

<PAGE>

      RISKS RELATING TO OUR OPERATIONS


      IF WE DO NOT HAVE  SUFFICIENT  FUNDS TO MARKET TO ATTRACT  NEW MEMBERS AND
CUSTOMERS, OUR CUSTOMER AND REVENUE BASES WILL CONTINUE TO ERODE.

      Because we significantly  reduced our market expenditures for new members,
our club  membership and revenues  declined  significantly.  Sales for the three
months  ended March 31, 2004  decreased  $5.0  million or 47% to $5.6 million as
compared to $10.6  million for the three months ended March 31, 2003.  Sales for
the year ended  December 31, 2003 decreased $9.1 million or 20% to $36.6 million
as compared to $45.7  million for the year ended  December 31, 2002.  Audio Book
Club sales  decreased  during each period  principally due to a decrease in club
membership as a result of a reduction in our  advertising  expenditures  for new
members.  For the year ended December 31, 2003, we spent $2.1 million to attract
new Audio Book Club  members,  a reduction of $6.2 million,  or 74.7%,  from the
amount  spent to  attract  new  members  of $8.3  million  during the year ended
December 31, 2002,  principally due to the lack of necessary funds. If we do not
have the funds  available  to spend to  acquire  new  members  to offset  member
attrition and/or expand our existing  membership and customer bases, our revenue
will  continue  to  decline,  which  will  continue  to  negatively  impact  our
performance  and could  ultimately  impair our  ability to  continue  as a going
concern.

      OUR  PRODUCTS  ARE SOLD IN A NICHE  MARKET  THAT MAY HAVE  LIMITED  FUTURE
GROWTH POTENTIAL.

      Although  the market for  audiobooks  has  expanded in recent  years,  the
markets for our products are niche markets.  Consumer interest in audiobooks and
old-time radio may decline in the future, and growth trends in these markets may
stagnate or decline.  A decline in the  popularity  of  audiobooks  and old-time
radio would limit our future growth  potential and negatively  impact our future
operating results.

      WE MAY BE UNABLE TO  ANTICIPATE  CHANGES IN  CONSUMER  PREFERENCE  FOR OUR
PRODUCTS AND MAY LOSE SALES OPPORTUNITIES.

      Our success  depends largely on our ability to anticipate and respond to a
variety of changes in the audiobook and old-time radio industries. These changes
include   economic   factors   affecting    discretionary   consumer   spending,
modifications  in consumer  demographics  and the availability of other forms of
entertainment.  The audiobook and old-time  radio markets are  characterized  by
changing consumer preferences, which could affect our ability to:

      o     plan for catalog offerings;

      o     introduce new titles;

      o     anticipate order lead time;

      o     accurately assess inventory requirements; and

      o     develop new product delivery methods.

      Although we evaluate many factors and attempt to anticipate the popularity
and life cycle of audiobook  titles,  the ultimate  level of demand for specific
titles is subject  to a high level of  uncertainty.  Sales of  audiobook  titles
typically decline rapidly after the first few months following release. If sales
of specific  titles  decline more rapidly than we expect,  we could be left with
excess inventory, which we might be forced to sell at reduced prices. If we fail
to  anticipate  and respond to factors  affecting  the  audiobook  industry in a
timely manner,  we could lose significant  amounts of capital or potential sales
opportunities.


                                      -4-
<PAGE>

      WE MAY  EXPERIENCE  SYSTEM  INTERRUPTIONS,  WHICH AFFECT ACCESS TO OUR WEB
SITES AND OUR ABILITY TO SELL PRODUCTS OVER THE INTERNET.

      Our future  revenue  depends,  in part, on the number of web site visitors
who  join as  Audio  Book  Club  members  and who  make  online  purchases.  The
satisfactory  performance,  reliability  and  availability  of  our  web  sites,
transaction-processing  systems and network  infrastructure  are critical to our
ability to attract and retain visitors at our web sites. If we experience system
interruptions that prevent customers and potential  customers from accessing our
web sites,  consumer  perception  of our  on-line  business  could be  adversely
affected, and we could lose sales opportunities and visitor traffic.

      WE MAY NOT BE ABLE TO LICENSE OR PRODUCE  DESIRABLE  SPOKEN WORD  CONTENT,
WHICH COULD REDUCE OUR REVENUES.

      We could lose sales  opportunities  if we are unable to continue to obtain
the rights to additional  audiobook libraries or selected audiobook titles. Some
of our  license  agreements  expire  over the  several  months  unless  they are
renewed.  We may not be able to renew existing  license and supply  arrangements
for audiobook  publishers'  libraries or enter into additional  arrangements for
the supply of new audiobook titles.

      IF OUR THIRD-PARTY PROVIDERS FAIL TO PERFORM THEIR SERVICES PROPERLY,  OUR
BUSINESS AND RESULTS OF OPERATIONS COULD BE ADVERSELY AFFECTED.

      Third-party providers conduct all of our Audio Book Club and a majority of
our Radio  Spirits  customer  service  operations,  process  orders and  collect
payments for us. If these  providers  fail to perform their  services  properly,
Audio Book Club members and Radio  Spirits'  customers  could  develop  negative
perceptions of our business,  collections of receivables  could be delayed,  our
operations  might not  function  efficiently,  our expenses may increase and our
revenue may decline.

      IF OUR MARKETING STRATEGIES TO ACQUIRE NEW MEMBERS ARE NOT SUCCESSFUL,  WE
WILL NOT  ACQUIRE AS MANY  MEMBERS AS WE  ANTICIPATE  OR ACQUIRE  MEMBERS  WHOSE
PERFORMANCE  IS  UNPROFITABLE,  WHICH WOULD INHIBIT OUR SALES GROWTH OR INCREASE
OUR COSTS.

      If our direct mail and other marketing strategies are not successful,  our
per member  acquisition  costs may increase and we may acquire fewer new members
than  anticipated or the members we do acquire may not purchase as many products
as we anticipate, return products at a higher rate than we expect or fail to pay
for their  purchases.  As a result,  our  operating  results would be negatively
impacted and our sales growth would be inhibited.

      THE PUBLIC MAY BECOME LESS RECEPTIVE TO UNSOLICITED DIRECT MAIL CAMPAIGNS.

      The success of our direct mail  campaigns  is  dependent  on many  factors
including the public's acceptance of direct mail solicitations.  Negative public
reception  of  direct  mail   solicitations   will  result  in  lower   customer
acquisitions  rates and higher  customer  acquisition  costs and will negatively
impact operating results and sales growth.

      INCREASED MEMBER ATTRITION COULD NEGATIVELY IMPACT OUR FUTURE REVENUES AND
OPERATING RESULTS.

      As is typical with  membership  clubs,  we experience  significant  member
attrition.  Our Audio Book Club lost more active  members  than new members that
joined in 2003.  Increases in membership attrition above the rates we anticipate
could  materially  reduce our future  revenues.  We incur  significant  up front
expenditures  in connection  with acquiring new members.  A member may not honor
his or her commitment,  or we may choose to terminate a specific  membership for
several reasons,  including  failure to pay for purchases,  excessive returns or
cancelled  orders.  As a result,  we may not be able to fully  recoup  our costs
associated with acquiring new members. In addition,  once a member has satisfied
his or her initial  commitment  to  purchase  additional  audiobooks  at regular
prices, the member has no further commitment to make purchases.


                                      -5-
<PAGE>


      NEW LAWS ADDRESSING THE SENDING OF E-MAILS MAY LIMIT OUR ABILITY TO MARKET
OR SUBJECT US TO PENALTIES.

      New laws recently  enacted to limit "spam"  e-mails may impact our ability
to  conduct  e-mail  campaigns.  While we attempt  to only use  "opt-in"  e-mail
addresses  and to work with  third  parties  whose  lists  consist  of  "opt-in"
e-mails, the law may limit the number of third parties whose lists we can use or
significantly  reduce the number of e-mails  within these lists.  Limitations on
our ability to continue the use of e-mail  marketing  campaigns  could adversely
affect our ability to attract new Audio Book Club  members and increase our cost
to acquire new members.

      THE CLOSING OF RETAIL STORES,  WHICH CARRY OUR PRODUCTS  COULD  NEGATIVELY
IMPACT OUR WHOLESALE SALES OF THESE PRODUCTS.

      Bankruptcy  filings by major retailers may limit the number of outlets for
our  old-time  radio  products.  With  fewer  chains  and  stores  available  as
distribution outlets,  competition for shelf space will increase and our ability
to sell our products could be impacted negatively. Moreover, our wholesale sales
could be negatively  impacted if any of our significant retail customers were to
close a significant number of their locations or otherwise  discontinue  selling
our products.

      IF THIRD  PARTIES  OBTAIN  UNAUTHORIZED  ACCESS TO OUR MEMBER AND CUSTOMER
DATABASES  AND OTHER  PROPRIETARY  INFORMATION,  WE WOULD  LOSE THE  COMPETITIVE
ADVANTAGE THEY PROVIDE.

      We  believe  that  our  member  file  and  customer   lists  are  valuable
proprietary  resources,  and we have expended  significant amounts of capital in
acquiring these names. Our member and customer lists, trade secrets,  trademarks
and other  proprietary  information have limited  protection.  Third parties may
copy or obtain  unauthorized  access to our member and  customer  databases  and
other proprietary know-how, trade secrets, ideas and concepts.

      Competitors could also independently develop or otherwise obtain access to
our  proprietary  information.  In addition,  we rent our lists for one-time use
only to third parties that do not compete with us. This practice  subjects us to
the risk that these third parties may use our lists for  unauthorized  purposes,
including selling them to our competitors.  Our confidentiality  agreements with
our executive officers, employees, list managers and appropriate consultants and
service suppliers may not adequately protect our trade secrets.  If our lists or
other proprietary  information were to become generally available, we would lose
a significant competitive advantage.

      IF WE ARE  UNABLE TO PAY OUR  ACCOUNTS  PAYABLE  IN A TIMELY  MANNER,  OUR
SUPPLIERS AND SERVICE PROVIDERS MAY REFUSE TO SUPPLY US WITH PRODUCTS OR PROVIDE
SERVICES TO US.

      At May 31,  2004,  we owed  approximately  4.7  million to trade and other
creditors.  Approximately  $3.3 million of these accounts payable were more than
60 days past due. If we do not make satisfactory  payments to our vendors,  they
may refuse to continue to provide us with products or services on credit,  which
could interrupt our supply of products or services.

      HIGHER THAN  ANTICIPATED  PRODUCT  RETURN  RATES  COULD  REDUCE OUR FUTURE
OPERATING RESULTS.

      We  experienced  product return rates of  approximately  24%, 26%, and 32%
during the years  ended  December  31,  2001,  2002 and 2003,  respectively.  If
members and customers  return  products to us in the future at higher rates than
in the past or than we currently anticipate,  our net sales would be reduced and
our operating  results would be adversely  affected.  A return rate in excess of
our  allowance for returns would result in a charge to earnings to write off the
related receivables and would reduce our assets.


                                      -6-
<PAGE>


      IF WE ARE UNABLE TO COLLECT OUR  RECEIVABLES  IN A TIMELY  MANNER,  IT MAY
NEGATIVELY IMPACT OUR CASH FLOW AND OUR OPERATING RESULTS.

      We experienced bad debt rates of approximately 6.1%, 6.2% and 10.8% during
the year ended December 31, 2001, 2002 and 2003, respectively. We are subject to
the risks  associated  with  selling  products  on credit,  including  delays in
collection  or  uncollectibility  of  accounts  receivable.   If  we  experience
significant delays in collection or uncollectibility of accounts receivable, our
liquidity and working capital  position could suffer and we could be required to
increase our allowance for doubtful accounts,  which would increase our expenses
and reduce our assets.

      INCREASES  IN COSTS OF  POSTAGE  COULD  NEGATIVELY  IMPACT  OUR  OPERATING
RESULTS.

      We distribute millions of mailings each year, and postage is a significant
expense in the operation of our business.  We do not pass on the costs of member
mailings and member solicitation  packages.  Even small increases in the cost of
postage,  multiplied  by the  millions of mailings we conduct,  would  result in
increased expenses and would negatively impact our operating results.

      WE FACE  SIGNIFICANT  COMPETITION  FROM A WIDE  VARIETY OF SOURCES FOR THE
SALE OF OUR PRODUCTS.

      We may not be able  to  compete  effectively  because  of the  significant
competition  in our  markets  from  many  competitors,  many of whom are  better
financed and have greater  resources and from other  competing  products,  which
provide similar  entertainment  value.  We compete with other web sites,  retail
outlets and  catalogs,  which offer similar  entertainment  products or content,
including  digital download of spoken word content.  New competitors,  including
large  companies,  may elect to enter the markets for audiobooks and spoken word
content.  We also compete for  discretionary  consumer  spending with mail order
clubs and catalogs,  other direct  marketers and retailers  that offer  products
with similar  entertainment  value as audiobooks  and old-time radio and classic
video  programs,  such as music on cassettes and compact  discs,  printed books,
videos,  and  laser and  digital  video  discs.  Many of these  competitors  are
well-established  companies,  which have greater financial resources that enable
them to better  withstand  substantial  price  competition  or  downturns in the
market for spoken word content.

      RISKS RELATING TO OUR CAPITAL STRUCTURE


      NORTON HERRICK EXERTS SIGNIFICANT INFLUENCE OVER SHAREHOLDER MATTERS.

      Norton Herrick owns approximately 18% of our outstanding common stock, all
of  our  outstanding  Series  A  convertible  preferred  stock  and  all  of our
outstanding Series C convertible  preferred stock, and therefore,  has the right
to cast  approximately  40% of the voting  power of our capital  stock.  He also
holds  approximately  $5.8  million  principal  amount of  convertible  debt and
warrants and options, which in the aggregate are convertible into or exercisable
to purchase  approximately  23.4  million  shares of our common  stock at prices
ranging  from  $0.53  per  share to $4.00  per  share,  which if  converted  and
exercised, would give them the right to vote, in total, approximately 71% of the
voting  power of our capital  stock.  As a  significant  shareholder,  he exerts
significant influence over matters which require shareholder vote, including the
election of directors,  amendments to our Articles of  Incorporation or approval
of  the  dissolution,   merger,  or  sale  of  MediaBay,   our  subsidiaries  or
substantially  all of our assets.  In  addition,  consents of the holders of the
Series A convertible  preferred  stock and Series C convertible  preferred stock
are  required  for  certain  actions,  including  a  merger  or  other  business
combination,  certain assets sales,  the creation,  authorization or increase of
any series of shares of capital stock convertible into common stock,  incurrence
of  indebtedness  and  declaration  or payment of  dividends  on capital  stock.
Ownership of the convertible  debt restricts our ability to take other corporate
actions,  including  the  incurrence of  additional  debt,  without the holders'
consent.  This concentration of ownership and control by Mr. Herrick could delay
or  prevent  a change  in our  control  or other  action,  even when a change in
control or other action might be in the best interests of other shareholders.


                                      -7-
<PAGE>


      OUR  ABILITY  TO USE OUR NET  OPERATING  LOSSES  WILL BE LIMITED IN FUTURE
PERIODS, WHICH COULD INCREASE OUR TAX LIABILITY.

      Under  Section 382 of the Internal  Revenue Code of 1986,  utilization  of
prior net operating losses is limited after an ownership  change,  as defined in
Section  382,  to an  annual  amount  equal to the  value  of the  corporation's
outstanding stock immediately before the date of the ownership change multiplied
by the long-term tax exempt rate. In the event we achieve profitable operations,
any significant limitation on the utilization of net operating losses would have
the effect of increasing our tax liability and reducing after tax net income and
available  cash  reserves.  We are unable to determine the  availability  of net
operating   losses  since  this   availability   is  dependent  upon  profitable
operations, which we have not achieved in prior periods.

      OUR STOCK PRICE HAS BEEN AND COULD CONTINUE TO BE EXTREMELY VOLATILE.

      The market  price of our  common  stock has been  subject  to  significant
fluctuations  since our initial public  offering in October 1997. The securities
markets  have  experienced,   and  are  likely  to  experience  in  the  future,
significant  price and volume  fluctuations,  which could  adversely  affect the
market price of our common stock without regard to our operating performance. In
addition,  the trading price of our common stock could be subject to significant
fluctuations in response to:

      o     our ability to maintain listing of our common stock on NASDAQ;

      o     actual or anticipated variations in our quarterly operating results;

      o     announcements by us or other industry participants,

      o     factors affecting the market for spoken word content;

      o     changes in national or regional economic conditions;

      o     changes in securities  analysts'  estimates for us, our competitors'
            or our industry or our failure to meet such analysts'  expectations;
            and

      o     general market conditions.


      A LARGE  NUMBER OF SHARES OF OUR COMMON  STOCK COULD BE SOLD IN THE MARKET
IN THE NEAR FUTURE, WHICH COULD DEPRESS OUR STOCK PRICE.

      As of June 1, 2004, we had outstanding  approximately  18.5 million shares
of common stock. In addition,  a substantial portion of our shares are currently
freely trading without restriction under the Securities Act of 1933, having been
registered  for  resale  or held by their  holders  for over two  years  and are
eligible for sale under Rule 144(k). There are currently outstanding options and
warrants to purchase and debt  convertible into an aggregate of approximately 49
million shares of our common stock at an average exercise or conversion price of
$0.96 per share. A substantial  portion of these shares has been  registered for
resale.  To  the  extent  any  of our  warrants  or  options  are  exercised  or
convertible debt is converted, your percentage ownership will be diluted and our
stock price could be further  adversely  affected.  Moreover,  as the underlying
shares are sold,  the market  price could drop  significantly  if the holders of
these  restricted  shares sell them or if the market  perceives that the holders
intend to sell these shares.

      SPECIAL INFORMATION REGARDING FORWARD-LOOKING STATEMENTS

      Certain  statements  in  this  prospectus   constitute   "forward-looking"
statements within the meaning of the Private Securities Litigation Reform Act of
1995. All statements  other than statements of historical facts included in this
prospectus,  including,  without  limitation,  statements  regarding  our future
financial position,  business strategy,  budgets,  projected costs and plans and
objectives  of  our  management  for  future  operations,   are  forward-looking
statements. In addition,  forward-looking statements generally can be identified
by the use of  forward-looking  terminology  such as  "may,"  "will,"  "expect,"


                                      -8-
<PAGE>


"Intent,"  "estimate,"  "anticipate,"  "believe,"  or "continue" or the negative
there of or variations thereon or similar terminology.  Although we believe that
the expectations reflected in such forward-looking statements are reasonable, we
cannot assure you that such expectations will prove to be correct. These forward
looking  statements  involve certain known and unknown risks,  uncertainties and
other factors which may cause our actual results, performance or achievements to
be materially  different from any results,  performances or achievements express
or implied by such  forward-looking  statements.  Important  factors  that could
cause  actual  results  to differ  materially  from our  expectations,  include,
without  limitation,  those  discussed  "the  Risk  Factors  section"  appearing
elsewhere  in this  prospectus.  Undue  reference  should not be placed on these
forward-looking statements, which speak only as of the date hereof. We undertake
no obligation to update any forward-looking statements.

                                 USE OF PROCEEDS

      We will not receive any proceeds  from any sales of shares of common stock
made from time to time  hereunder by the selling  shareholders.  Any proceeds we
receive from the exercise of options for cash will be used for working  capital.
We have agreed to bear the expenses in connection  with the  registration of the
common stock being offered hereby by the selling shareholders.

                          DESCRIPTION OF CAPITAL STOCK

GENERAL

      MediaBay is authorized to issue 150,000,000 shares of common stock, no par
value,  and 5,000,000  shares of preferred  stock, no par value, of which 75,000
shares are designated as Series A Convertible Preferred Stock, 10,000 shares are
designated  as Series B  Convertible  Preferred  Stock and  100,000  shares  are
designated as Series C Convertible  Preferred  Stock. As of July 26, 2004, there
were 18,463,624  shares of common stock  outstanding,  25,000 shares of Series A
Convertible  Preferred Stock  outstanding,  3,350 shares of Series B Convertible
Preferred Stock outstanding and 43,527 shares of Series C Convertible  Preferred
Stock outstanding.

COMMON STOCK

      The holders of our common  stock are entitled to one vote per share on all
matters  submitted  to a vote of the  shareholders,  including  the  election of
directors,  and,  subject to preferences that may be applicable to any preferred
stock  outstanding at the time, are entitled to receive  ratably  dividends,  if
any, as may be declared from time to time by the board of directors out of funds
legally  available  therefor.  In the event of  liquidation  or  dissolution  of
MediaBay,  the  holders  of common  stock are  entitled  to  receive  all assets
available for distribution to the shareholders after satisfaction of obligations
to creditors,  subject to any  preferential  rights of any preferred  stock then
outstanding.  The  holders  of our  common  stock  have no  preemptive  or other
subscription rights, and there are no conversion rights or redemption or sinking
fund provisions with respect to the common stock. All of the outstanding  shares
of common stock are, and the shares of common stock offered hereby upon issuance
and sale will be, fully paid and  non-assessable.  The rights,  preferences  and
privileges  of the  holders  of our  common  stock are  subject  to,  and may be
adversely affected by, the right of the holders of any shares of preferred stock
which our board of directors may designate in the future.

PREFERRED STOCK

      Authorized but  undesignated  shares of preferred stock may be issued from
time to time in one or more series upon authorization by our board of directors.
Our  board of  directors,  without  further  approval  of the  shareholders,  is
authorized  to fix the  dividend  rights and terms,  conversion  rights,  voting
rights, redemption rights and terms, liquidation preferences,  and other rights,
preferences,  privileges and restrictions applicable to each series of preferred
stock.  The  issuance  of  preferred  stock,  while  providing   flexibility  in
connection  with  possible  acquisitions  and  other  corporate  purposes  could


                                      -9-
<PAGE>


adversely  affect the voting  power of the  holders of common  stock and make it
more  difficult  for a third  party  to gain  control  of  MediaBay  prevent  or
substantially delay a change of control, discourage bids for our common stock at
a premium or otherwise adversely affect the market price of our common stock.

      Series A Convertible Preferred Stock

      There are currently 25,000 shares of Series A Convertible  Preferred Stock
outstanding.  The stated value of the Series A  Convertible  Preferred  Stock is
$100.00 per share.

      Dividends.  Dividends  are payable on the Series A  Convertible  Preferred
Stock  quarterly,  in  arrears,  on each  March 31,  June 30,  September  30 and
December 30 at an annual rate of $9.00 per share.  Dividends  are payable at the
holder's option in (i) additional shares of Series A Convertible Preferred Stock
(ii) shares of common stock or (iii) cash; provided that if the holder elects to
receive a dividend  payment in cash,  the payment will accrue until  MediaBay is
permitted to be made under its existing credit facility.

      Conversion.  The Series A Convertible  Preferred Stock is convertible,  at
the option of the  holder,  into a number of shares of common  stock  equal to a
fraction, (i) the numerator of which is equal to the liquidation preference plus
accrued  and  unpaid  dividends   through  the  conversion  date  and  (ii)  the
denominator is the stock price which is currently $0.56, subject to adjustment.

      Liquidation.  In the event of a liquidation,  dissolution or winding up of
MediaBay,  the holders of Series A Convertible Preferred Stock shall be entitled
to receive  out of the assets of  MediaBay,  a sum in cash equal to $100.00  per
share before any amounts are paid to the holders of MediaBay common stock.

      Voting Rights.  The holders of Series A Convertible  Preferred Stock shall
have the number of votes  equal to the number of shares of Series A  Convertible
Preferred  Stock held  multiplied  by a fraction,  the numerator of which is the
liquidation  preference and the  denominator  is $1.75,  and shall vote together
with the holders of common stock and Series C Convertible  Preferred  Stock as a
single  class  on all  matters  submitted  to the  stockholders  for a vote.  In
addition,  the affirmative  vote of the holders of a majority of the outstanding
shares of Series A  Convertible  Preferred  Stock is required  for,  among other
things,  the  creation,  authorization  or  issuance  of a series  or  shares of
preferred stock senior to, or on parity with, the Series A Convertible Preferred
Stock; a merger,  consolidation or business combination in which MediaBay is not
the surviving  entity and MediaBay's  shareholders do not hold a majority of the
capital  stock of the  surviving  entity;  MediaBay  to incur or permit to exist
indebtedness or liens;  the  declaration or payment of dividends;  redemption or
retirement  of any other  capital  stock;  distributions  to  shareholders;  and
certain sales, transfers and dispositions of assets.

      Series B Convertible Preferred Stock

      There are currently  3,350 shares of Series B Convertible  Preferred Stock
outstanding.  The stated value of the Series B  Convertible  Preferred  Stock is
$100.00 per share.

      Dividends.  Dividends  are payable on the Series B  Convertible  Preferred
Stock  quarterly,  in  arrears,  on each  March 31,  June 30,  September  30 and
December 30 at an annual rate of $9.00 per share.  Dividends  are payable at the
holder's option in (i) additional shares of Series B Convertible Preferred Stock
(ii) shares of common stock or (iii) cash; provided that the payment will accrue
until MediaBay is permitted to be made under its existing credit facility.

      Conversion.  The Series B Convertible  Preferred Stock is convertible,  at
the option of the  holder,  into a number of shares of common  stock  equal to a
fraction, (i) the numerator of which is equal to the liquidation preference plus


                                      -10-
<PAGE>


accrued  and  unpaid  dividends   through  the  conversion  date  and  (ii)  the
denominator is the stock price which is currently $0.77, subject to adjustment.

      Liquidation.  In the event of a liquidation,  dissolution or winding up of
MediaBay,  the holders of Series B Convertible Preferred Stock shall be entitled
to receive  out of the assets of  MediaBay,  a sum in cash equal to $100.00  per
share before any amounts are paid to the holders of MediaBay common stock.

      Voting Rights.  The holders of Series B Convertible  Preferred Stock shall
have no voting rights,  except as required by law and except that the consent of
the Series B Convertible  Preferred  Stock,  voting  separately  as a class,  is
required for any  amendment,  alteration  or repeal of the terms of the Series B
Convertible  Preferred Stock which materially and adversely  affects the rights,
preferences and privileges of the Series B Convertible Preferred Stock.

      Series C Convertible Preferred Stock

      There are currently 100,000 shares of Series C Convertible Preferred Stock
outstanding.  The stated value of the Series C  Convertible  Preferred  Stock is
$100.00 per share.

      Dividends.  Dividends  are payable on the Series C  Convertible  Preferred
Stock  quarterly,  in  arrears,  on each  March 31,  June 30,  September  30 and
December 30 at an annual rate of $12.00 per share.  Dividends are payable at the
holder's option in (i) shares of common stock or (ii) cash; provided that if the
holder  elects to receive a dividend  payment in cash,  the payment  will accrue
until MediaBay is permitted to be made under its existing credit facility.

      Conversion.  The Series C Convertible  Preferred Stock is convertible,  at
the option of the  holder,  into a number of shares of common  stock  equal to a
fraction, (i) the numerator of which is equal to the liquidation preference plus
accrued  and  unpaid  dividends   through  the  conversion  date  and  (ii)  the
denominator is the stock price which is currently $0.78, subject to adjustment.

      Liquidation.  In the event of a liquidation,  dissolution or winding up of
MediaBay,  the holders of Series C Convertible Preferred Stock shall be entitled
to receive  out of the assets of  MediaBay,  a sum in cash equal to $100.00  per
share before any amounts are paid to the holders of MediaBay common stock.

      Voting Rights.  The holders of Series C Convertible  Preferred Stock shall
have the number of votes  equal to the number of shares of Series C  Convertible
Preferred  Stock held  multiplied  by a fraction,  the numerator of which is the
liquidation  preference and the  denominator  is $0.78,  and shall vote together
with the holders of common stock and Series A Convertible  Preferred  Stock as a
single  class  on all  matters  submitted  to the  stockholders  for a vote.  In
addition,  the affirmative  vote of the holders of a majority of the outstanding
shares of Series C  Convertible  Preferred  Stock is required  for,  among other
things,  the  creation,  authorization  or  issuance  of a series  or  shares of
preferred stock senior to, or on parity with, the Series C Convertible Preferred
Stock; a merger,  consolidation or business combination in which MediaBay is not
the surviving  entity and MediaBay's  shareholders do not hold a majority of the
capital  stock of the  surviving  entity;  MediaBay  to incur or permit to exist
indebtedness or liens;  the  declaration or payment of dividends;  redemption or
retirement  of any other  capital  stock;  distributions  to  shareholders;  and
certain sales, transfers and dispositions of assets.

CLASSIFIED BOARD OF DIRECTORS

      Our by-laws  divide our board of  directors  into three  classes,  serving
staggered  three-year terms. The staggered terms of the classes of directors may
make it more difficult for a third party to gain control of our board or acquire
MediaBay and may discourage bids for our common stock at a premium. In addition,
our Articles of  Incorporation  provide that  shareholders  may not call special
meetings of  shareholders  unless they represent at least 25% of our outstanding
voting shares of stock.


                                      -11-
<PAGE>


TRANSFER AGENT

      The transfer agent and registrar for our common stock is Continental Stock
Transfer & Trust Company, New York, New York.

           SHAREHOLDERS FOR WHICH SHARES ARE BEING REGISTERED FOR SALE

      The  following  table sets forth  information  as of July 26,  2004,  with
respect to the shareholders for which shares are being registered for sale:


<TABLE>
<CAPTION>
                                    Beneficial Ownership of    Shares Registered      Shares Beneficially          % of Shares
Shareholders for Which Shares       Shares of Common Stock,                           Owned Assuming the       Beneficially Owned
are Being Registered                    including Shares        for Sale Assuming      Sale of the Shares      Assuming the Sale of
for Sale                              Registered for Sale     Exercise of Options         Registered          the Shares Registered
------------------------------    -------------------------- ---------------------    --------------------  ------------------------
<S>                                             <C>                 <C>                     <C>                        <C>
Richard Berman                                  107,500                50,000                82,500                    *
Jeffrey Dittus                                  700,000             1,500,000               200,000                    *
Paul Ehrlich                                     97,500                70,000                52,500                    *
John Levy                                       387,215               150,000               387,215                    *
Joseph Rosetti                                  107,500                50,000                77,500                    *
</TABLE>

-----------------

*Less than 1%

Jeffrey Dittus is Chief Executive Officer and a director of MediaBay.  John Levy
is Chairman and Chief Financial Officer of MediaBay.  Howard Herrick is a former
officer and  director of  MediaBay.  Messrs.  Ehrlich,  Hershorn and Rosetti are
directors of MediaBay.

A total of 25,000 of the shares registered for sale assuming exercise of options
are not included in the shares  beneficially  owned by Mr.  Berman  because such
shares are not exercisable within 60 days of the date of this prospectus.

A total of  1,200,000 of the shares  registered  for sale  assuming  exercise of
options are not included in the shares  beneficially owned by Mr. Dittus because
such shares are not exercisable within 60 days of the date of this prospectus.

A total of 25,000 of the shares registered for sale assuming exercise of options
are not included in the shares  beneficially  owned by Mr. Mr.  Ehrlich  because
such shares are not exercisable within 60 days of the date of this prospectus.

The shares  registered for sale assuming exercise of options are not included in
the  shares  beneficially  owned  by  Mr.  Levy  because  such  shares  are  not
exercisable within 60 days of the date of this prospectus.

A total of 62,500 of the shares registered for sale assuming exercise of options
are not included in the shares  beneficially  owned by Mr. Rosetti  because such
shares are not exercisable within 60 days of the date of this prospectus.


                                      -12-
<PAGE>

                              PLAN OF DISTRIBUTION

      MediaBay is registering the shares on behalf of the selling  shareholders.
As used herein,  selling shareholders includes donees,  transferees and pledgees
selling shares received from a named selling  shareholder after the date of this
prospectus.  We  have  agreed  to bear  the  expenses  in  connection  with  the
registration  of the  shares  offered  and  sold  by the  selling  shareholders.
Brokerage  commissions and similar selling expenses, if any, attributable to the
sale of shares will be borne by the selling shareholder.  Sales of shares may be
affected  by the selling  shareholder  from time to time in one or more types of
transactions,  which may  include  block  transactions,  on the Nasdaq  National
Market,  in  the  over-the-counter  market,  in  negotiated  transactions,  or a
combination of these methods of sale, at market prices prevailing at the time of
sale, or at negotiated prices. These transactions may or may not involve brokers
or dealers.  The selling shareholders have advised us that they have not entered
into any agreements,  understandings  or arrangements  with any  underwriters or
broker-dealers regarding the sale of their securities.

      The  selling  shareholders  may  effect  transactions  by  selling  shares
directly to purchasers,  through agents  designated  from time to time, or to or
through   broker-dealers,   which  may  act  as  agents  or  principals.   These
broker-dealers may receive  compensation in the form of discounts,  concessions,
or commissions from the selling  shareholder and/or the purchasers of shares for
whom broker-dealers may act as agents or to whom they sell as principal, or both
(which  compensation  as to a  particular  broker-dealer  might be in  excess of
customary commissions).

      The selling  shareholders  and any  broker-dealers  that act in connection
with the sale of  shares  of common  stock  might be deemed to be  underwriters,
within  the  meaning  of  Section  2(a)(11)  of  the  Securities  Act,  and  any
commissions  received  by  broker-dealers  and any  profit on the  resale of the
shares  sold  by  them  while  acting  as  principals  might  be  deemed  to  be
underwriting  discounts or  commissions  under the  Securities  Act. The selling
shareholders  may agree to indemnify  any agent,  dealer or  broker-dealer  that
participates  in  transactions  involving  sales of the  shares of common  stock
against certain liabilities,  including liabilities arising under the Securities
Act.

      Because the selling shareholders may be deemed to be underwriters,  within
the meaning of Section  2(a)(11) of the Securities Act, the selling  shareholder
will be subject to the prospectus  delivery  requirements of the Securities Act,
which may include  delivery through the facilities of the Nasdaq National Market
pursuant to Rule 153 under the Securities Act.

      The selling shareholders also may resell all or a portion of the shares of
common  stock in open market  transactions  in reliance  upon Rule 144 under the
Securities Act,  provided they meet the criteria and conform to the requirements
of this rule.

                                 INDEMNIFICATION

      Our Articles of Incorporation  and By-Laws provide that we shall indemnify
our  directors  and  officers to the  fullest  extent  permitted  by the Florida
Business  Corporation  Act. The Florida  Business  Corporation Act provides that
none of our  directors  or  officers  shall be  personally  liable  to us or our
shareholders  for  damages  for  breach  of any  duty  owed to  MediaBay  or our
shareholders,  except for  liability for (i) acts or omissions not in good faith
or which involve intentional  misconduct or a knowing violation of law, (ii) any
unlawful  payment of a dividend or unlawful  stock  repurchase  or redemption in
violation of the Florida  Business  Corporation  Act, (iii) any transaction from
which the director  received an improper personal benefit or (iv) a violation of
a criminal law.


                                      -13-
<PAGE>


      We  have  entered  into  indemnification   agreements  with  some  of  our
employees,   officers  and  consultants.   Under  the  terms  of  the  indemnity
agreements,  we have agreed to indemnify,  to the fullest extent permitted under
applicable  law,  against any amounts which the employee,  officer or consultant
may become legally obligated to pay in connection with any claim arising from or
out of the  employee,  officer or  consultant  acting,  in  connection  with any
services performed by or on behalf of us and related expenses. Provided however,
that the employee,  officer or consultant  shall reimburse us for the amounts if
the  individual  is  found,  as  finally  judicially  determined  by a court  of
competent jurisdiction, not to have been entitled to indemnification.

      Insofar as  indemnification  for liabilities  arising under the Securities
Act may be  permitted  for  our  directors,  officers  and  controlling  persons
pursuant to the foregoing provisions, or otherwise, we have been advised that in
the  opinion  of the SEC  this  indemnification  is  against  public  policy  as
expressed in the Securities Act and is, therefore,  unenforceable.  In the event
that a claim for  indemnification  against  these  liabilities,  other  than the
payment by us of expenses incurred or paid by a director, officer or controlling
person of us in the  successful  defense of any action,  suit or  proceeding  is
asserted by the director,  officer or controlling  person in connection with the
securities being  registered,  we will, unless in the opinion of its counsel the
matter  has  been  settled  by  controlling  precedent,  submit  to a  court  of
appropriate  jurisdiction the question whether  indemnification by it is against
public  policy as  expressed in the  Securities  Act and will be governed by the
final adjudication of the issue.

                                  LEGAL MATTERS

      The legality of the shares of common stock offered  hereby was passed upon
for MediaBay, Inc. by Blank Rome LLP, New York, New York.

                                     EXPERTS

      The financial  statements and the related financial statement schedule for
the year-ended  December 31, 2003  incorporated  in this prospectus by reference
from MediaBay, Inc.'s Annual Report on Form 10-K for the year ended December 31,
2003 have been  audited by Amper  Politzner & Mattia,  P.C.,  as stated in their
report, which is incorporated herein by reference, and have been so incorporated
in reliance  upon the report of such firm given upon their  authority as experts
in accounting and auditing.

      The financial  statements and the related financial statement schedule for
the years ended December 31, 2001 and 2002  incorporated  in this  prospectus by
reference  from  MediaBay,  Inc.'s Annual Report on Form 10-K for the year ended
December  31, 2003 have been  audited by  Deloitte & Touche LLP, an  independent
registered  public  accounting  firm,  as  stated  in  their  report,  which  is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their  authority as experts in accounting and
auditing.


                                      -14-
<PAGE>


                         WHERE YOU CAN FIND INFORMATION

      MediaBay has filed with the SEC, a Registration  Statement with respect to
the securities  offered by this prospectus.  This  prospectus,  filed as part of
such Registration  Statement,  does not contain all of the information set forth
in, or annexed as exhibits  to, the  Registration  Statement,  portions of which
have been omitted in accordance  with the rules and  regulations of the SEC. For
further  information  with respect to MediaBay and this  offering,  reference is
made to the Registration  Statement,  including exhibits filed therewith,  which
may be read and  copied  at the SEC at Room  1024,  Judiciary  Plaza,  450 Fifth
Street,  N.W.,  Washington,  D.C. 20549, and at its regional  offices:  500 West
Madison  Street,  Suite 1400,  Chicago,  Illinois  60661-2511  and 7 World Trade
Center,  13th Floor,  New York,  New York 10048.  You can obtain copies of these
materials at prescribed  rates from the Public  Reference Room of the SEC at 450
Fifth Street,  N.W.,  Washington,  D.C. 20549. You may obtain information on the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Our
electronic  filings made through the SEC's  electronic data gathering,  analysis
and retrieval system are publicly available through the SEC's worldwide web site
(http://www.sec.gov).


                                      -15-
<PAGE>

================================================================================

      We have not  authorized  any dealer,  sales  person or any other person to
give any information or to represent  anything not contained in this prospectus.
You must not rely on any  unauthorized  information.  This  prospectus  does not
offer to sell or buy any securities in any jurisdiction where it is unlawful.

                                TABLE OF CONTENTS

                                      Page

Incorporation of Certain Documents

  by Reference...............................................................  2
The Company..................................................................  3
Risk Factors.................................................................  4
Special Information Regarding ...............................................
  Forward-looking Information................................................  8
Use of Proceeds..............................................................  9
Description of Capital Stock.................................................  9
Shareholders for Which Shares ...............................................
  are Being Registered for Sale.............................................. 12
Plan of Distribution......................................................... 13
Indemnification.............................................................. 13
Legal Matters................................................................ 14
Experts...................................................................... 14
Where You Can Find Information................................................15



                                1,820,000 SHARES

                                  COMMON STOCK

                                 MEDIABAY, INC.


                                 --------------

                                   PROSPECTUS

                                 --------------




                                  JULY 26, 2004


================================================================================

<PAGE>


                                     PART II

               INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

          Item 3.  Incorporation of Documents by Reference.

          The following  documents  previously  filed by the Registrant with the
Securities  and Exchange  Commission  (the  "Commission")  are  incorporated  by
reference in this Registration Statement:

     1.   Annual Report on Form 10-K for the year ended December 31, 2003;

     2.   Quarterly Report on Form 10-Q for the period ended March 31, 2004;

     3.   Current Report on Form 8-K filed with the SEC on January 30, 2004;

     4.   Current Report on Form 8-K filed with the SEC on April 1, 2004;

     5.   Current Report on Form 8-K filed with the SEC on April 12, 2004;

     6.   Current Report on Form 8-K filed with the SEC on April 30, 2004;

     7.   Current Report on Form 8-K filed with the SEC on May 26, 2004; and

     8.   The  description  of  the  Company's  common  stock  contained  in its
          Registration  Statement on Form 8-A dated November 12, 1999,  together
          with any  amendment or report filed with the  Securities  and Exchange
          Commission for the purpose of updating such description.

      All documents  subsequently  filed by the Registrant  pursuant to Sections
13(a),  13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold,  shall
be deemed to be incorporated by reference in this Registration  Statement and to
be a part  hereof  from the  respective  date of filing of such  documents.  Any
statement  contained in a document  incorporated by reference herein is modified
or superseded for all purposes to the extent that a statement  contained in this
Registration  Statement or in any other  subsequently  filed  document  which is
incorporated by reference modifies or replaces such statement.

      Any  reference  herein  shall be deemed to be modified or  superseded  for
purposes of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document which also is incorporated or
deemed to be  incorporated  by  reference  herein  modifies or  supersedes  such
statement.  Any such  statement so modified or  superseded  shall not be deemed,
except as so modified or superseded,  to constitute a part of this  Registration
Statement.

          Item 4. Description of Securities.

          Not applicable.

          Item 5. Interests of Named Experts and Counsel.

          Not applicable

          Item 6. Indemnification of Directors and Officers.

      The  Florida  Business   Corporation  Act  (the  "Florida  Act")  contains
provisions entitling the Registrant's  directors and officers to indemnification
from  judgments,   settlements,   penalties,   fines,  and  reasonable  expenses
(including  attorney's  fees) as the result of an action or  proceeding in which
they may be  involved  by reason of having  been a  director  or  officer of the
Registrant.  In its Articles of  Incorporation,  the  Registrant  has included a
provision that limits,  to the fullest extent now or hereafter  permitted by the
Florida Act, the personal  liability of its  directors to the  Registrant or its


                                      II-2
<PAGE>


shareholders  for  monetary  damages  arising  from a breach of their  fiduciary
duties  as  directors.  Under the  Florida  Act as  currently  in  effect,  this
provision limits a director's  liability  except where such director  breaches a
duty.

         The Registrant's Articles of Incorporation and By-Laws provide that the
Registrant  shall  indemnify,  and upon request shall  advance  expenses to, its
directors and officers to the fullest  extent  permitted by the Florida Act. The
Florida Act  provides  that no director  or officer of the  Registrant  shall be
personally  liable to the Registrant or its  shareholders for damages for breach
of any duty owed to the Registrant or its shareholders, except for liability for
(i) acts or omissions not in good faith or which involve intentional  misconduct
or a knowing  violation  of law,  (ii) any  unlawful  payment of a  dividend  or
unlawful  stock  repurchase or redemption in violation of the Florida Act, (iii)
any transaction from which the director received an improper personal benefit or
(iv) a  violation  of a  criminal  law.  This  provision  does not  prevent  the
Registrant  or  its  shareholders  from  seeking  equitable  remedies,  such  as
injunctive  relief or  rescission.  If  equitable  remedies  are found not to be
available to shareholders in any particular case,  shareholders may not have any
effective  remedy against actions taken by directors that constitute  negligence
or gross negligence.

         The Registrant has entered into indemnification agreements with certain
employees,  officers  and  consultants.  Pursuant to the terms of the  indemnity
agreements,  the  Registrant  has agreed to  indemnify,  to the  fullest  extent
permitted under applicable law, against any amounts which the employee,  officer
or consultant may become legally  obligated to pay in connection  with any claim
arising from or out of the employee, officer or consultant acting, in connection
with any  services  performed  by or on behalf  of the  Registrant  and  certain
expenses  related  thereto.  Provided  however,  that the  employee,  officer or
consultant  shall  reimburse  the  Registrant  for  such  amounts  if  the  such
individual is found,  as finally  judicially  determined by a court of competent
jurisdiction, not to have been entitled to such indemnification.

         Insofar as indemnification for liabilities arising under the Securities
Act may be  permitted to  directors,  officers  and  controlling  persons of the
Registrant  pursuant to any charter provision,  by-law,  contract,  arrangement,
statute or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange  Commission (the "Commission")  such  indemnification is
against  public  policy as expressed in the  Securities  Act and is,  therefore,
unenforceable.

          Item 7. Exemption from Registration Claimed.

          Not Applicable.

          Item 8. Exhibits.

Exhibit No.  Description
-----------  -----------
      5      Opinion of Blank Rome LLP

     23.1    Consent of Amper Politzner & Mottia, P.C.

     23.2    Consent of Deloitte & Touche LLP

     23.3    Consent of Blank Rome Tenzer Greenblatt LLP (included in Exhibit 5)

     24      Power  of  Attorney  (included  on Page  II-5  of this Registration
             Statement)


                                      II-3
<PAGE>


          Item 9. Undertakings.

          The undersigned Registrant hereby undertakes:

          (1)  To file,  during  any  period in which  offers or sales are being
made, a post-effective amendment to this Registration Statement:

               (i)  To include any  prospectus  required by Section  10(a)(3) of
                    the Securities Act of 1933;

               (ii) To reflect  in the  prospectus  any facts or events  arising
                    after the effective date of the  Registration  Statement (or
                    the most recent  post-effective  amendment  thereof)  which,
                    individually  or in the  aggregate,  represent a fundamental
                    change  in the  information  set  forth in the  Registration
                    Statement.  Notwithstanding  the foregoing,  any increase or
                    decrease  in  volume  of  securities  offered  (if the total
                    dollar  value of  securities  offered  would not exceed that
                    which was registered) and any deviation from the low or high
                    and of the estimated maximum offering range may be reflected
                    in the form of prospectus filed with the Commission pursuant
                    to Rule 424(b) if, in the  aggregate,  the changes in volume
                    and prices  represent no more than 20 percent  change in the
                    maximum   aggregate   offering   price   set  forth  in  the
                    "Calculation  of  Registration  Fee" table in the  effective
                    registration statement; and

               (iii)To include  any  material  information  with  respect to the
                    plan  of  distribution  not  previously   disclosed  in  the
                    Registration  Statement  or  any  material  change  to  such
                    information in the Registration Statement;

     provided,  however,  that paragraphs (1)(i) and (1)(ii) do not apply if the
     information required to be included in a post-effective  amendment by those
     paragraphs is contained in periodic  reports filed with or furnished to the
     Commission  by the  Registrant  pursuant  to  Section  13 or  15(d)  of the
     Securities  Exchange Act of 1934 that are  incorporated by reference in the
     Registration Statement.

          (2) That,  for the  purpose of  determining  any  liability  under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such  securities at that time shall be deemed to be the initial bona
fide offering thereof.

          (3)  To  remove  from   registration  by  means  of  a  post-effective
amendment  any of the  securities  being  registered  which remain unsold at the
termination of the offering.

     The  undersigned   Registrant  hereby  undertakes  that,  for  purposes  of
determining  any liability  under the Securities Act of 1933, each filing of the
Registrant's  annual  report  pursuant to Section  13(a) or Section 15(d) of the
Securities  Exchange  Act of 1934  (and  where  applicable,  each  filing  of an
employee  benefit  plan's  annual  report  pursuant  to  Section  15(d)  of  the
Securities  Exchange  Act of 1934)  that is  incorporated  by  reference  in the
Registration  Statement  shall  be  deemed  to be a new  registration  statement
relating to the securities offered therein,  and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.

     Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors,  officers and controlling  persons of the
Registrant pursuant to the foregoing  provisions,  or otherwise,  the Registrant
has been advised that in the opinion of the Securities  and Exchange  Commission
such  indemnification  is against  public policy as expressed in the Act and is,
therefore,  unenforceable. In the event that a claim for indemnification against
such liabilities  (other than the payment by the Registrant of expenses incurred
or paid by a director,  officer or  controlling  person of the Registrant in the
successful  defense of any  action,  suit or  proceeding)  is  asserted  by such
director,  officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been  settled by  controlling  precedent,  submit to a court of  appropriate
jurisdiction the question whether such  indemnification  by it is against public
policy as expressed  in such Act and will be governed by the final  adjudication
of such issue.



                                      II-4
<PAGE>

                                   SIGNATURES

     Pursuant to the  requirements of the Securities Act of 1933, the Registrant
certifies  that it has  reasonable  grounds to believe  that it meets all of the
requirements  for  filing  on Form S-8 and has  duly  caused  this  Registration
Statement  to be  signed  on its  behalf  by  the  undersigned,  thereunto  duly
authorized, in Cedar Knolls, New Jersey, on this 26 day of July 2004.

                                        MEDIABAY, INC.

                                        By: /s/ John Levy
                                            -----------------------------------
                                            John Levy, Chairman and
                                            Chief Financial Officer

      Each person whose signature  appeart s below  authorizes each of John Levy
and Jeffrey  Dittus,  or either of them as his true and lawful  attorney-in-fact
with full  power of  substitution  to  execute in the name and on behalf of each
such person, individually and in each capacity stated below, and to file any and
all  amendments  to  this   Registration   Statement,   including  any  and  all
post-effective amendments thereto.

      Pursuant  to  the  requirements  of  the  Securities  Act  of  1933,  this
Registration  Statement was signed by the following person in the capacities and
on the dates stated.

<TABLE>
<CAPTION>
    Signature                           Title                                                Date
    ---------                           -----                                                ----
<S>                           <C>                                                       <C>
    /s/ Jeffrey Dittus        Director and Chief Executive Officer                      July 26, 2004
    ----------------------    (Principal Executive Officer)
    Jeffrey Dittus

    /s/ John Levy             Chairman and Chief Financial Officer (Principal
    ----------------------    Financial and Accounting Officer)                         July 26, 2004
    John Levy


    /s/ Richard Berman        Director                                                  July 26, 2004
    ----------------------
    Richard Berman

    /s/ Paul Ehrlich          Director                                                  July 26, 2004
    ----------------------
    Paul Ehrlich

                              Director

    Joseph R. Rosetti

                              Director

    Paul Neuwirth

    /s/ Stephen Yarvis        Director                                                  July 26, 2004
    ----------------------
    Stephen Yarvis
</TABLE>


                                      II-5
[{"type": "S-8", "sequence": "1", "filename": "v04717_s8.txt", "secsgml_size_bytes": 74571}]
{"company-data": {"conformed-name": "MEDIABAY INC", "cik": "0001040973", "assigned-sic": "5961", "irs-number": "650429858", "state-of-incorporation": "FL", "fiscal-year-end": "1231"}, "filing-values": {"form-type": "S-8", "act": "33", "file-number": "333-117652", "film-number": "04930650"}, "business-address": {"street1": "2 RIDGEDALE AVENUE", "city": "CEDAR KNOLLS", "state": "NJ", "zip": "07927", "phone": "9735399528"}, "mail-address": {"street1": "2 RIDGEDALE AVENUE", "city": "CEDAR KNOLLS", "state": "NJ", "zip": "07927"}, "former-company": {"former-conformed-name": "AUDIO BOOK CLUB INC", "date-changed": "19970612"}}
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 26, 2004.
                                                   REGISTRATION NO. 333-________

================================================================================

                       SECURITIES AND EXCHANGE COMMISSION
                             WASHINGTON, D.C. 20549

                                ----------------

                                    FORM S-8
                             REGISTRATION STATEMENT
                                      UNDER
                           THE SECURITIES ACT OF 1933

                                ----------------

                                 MEDIABAY, INC.
             (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)

                                ----------------

      FLORIDA             2 RIDGEDALE AVENUE, SUITE 300             65-0429858
  (State or other         CEDAR KNOLLS, NEW JERSEY 07927          (IRS employer
  jurisdiction of                (973) 539-9528                  identification
  incorporation or      (Address, including zip code, and            number)
   organization)             telephone number, including
                      area code, of registrant's principal
                               executive offices)

                               ------------------

          2 RIDGEDALE AVENUE, SUITE 300
          CEDAR KNOLLS, NEW JERSEY                            07927
          (Address of Principal Executive Offices)           (Zip Code)

                            2001 Stock Incentive Plan
                        --------------------------------
                              (Full Title of Plan)

                                 Jeffrey Dittus
                             Chief Executive Officer
                                 MediaBay, Inc.
                          2 Ridgedale Avenue, Suite 300
                         Cedar Knolls, New Jersey 07927
              ---------------------------------------------------
                     (Name and Address of Agent for Service)

                                    COPY TO:

                             Brad L. Shiffman, Esq.
                                Ethan Seer, Esq.
                                 Blank Rome LLP
                              405 Lexington Avenue
                            New York, New York 10174
                            Telephone: (212) 885-5000
                            Facsimile: (212) 885-5001

================================================================================
CALCULATION OF REGISTRATION FEE

---------------------------------------- ------------------ ----------------- ------------------- ------------------
                                                                PROPOSED           PROPOSED
                                                                MAXIMUM            MAXIMUM
TITLE OF EACH                                 AMOUNT            OFFERING          AGGREGATE           AMOUNT OF
CLASS OF SECURITIES                            TO BE           PRICE PER      OFFERING PRICE(2)     REGISTRATION
TO BE REGISTERED                           REGISTERED(1)      SECURITY(2)                                FEE
---------------------------------------- ------------------ ----------------- ------------------- ------------------
Common stock, no par value per share         3,500,000            $1.17           $4,105,485           $520.17

---------------------------------------- ------------------ ----------------- ------------------- ------------------
(1)   In addition,  pursuant to Rule 416 under the Securities Act of 1933,  this
      Registration Statement also registers an indeterminate number of shares of
      common stock which may be issued pursuant to the anti-dilution  provisions
      of the stock options or other stock-based  awards granted or to be granted
      by the Registrant under its 2001 Stock Incentive Plan.

(2)   Calculated  solely for the purpose of  determining  the  registration  fee
      pursuant to Rule 457 under the  Securities  Act of 1933 and based upon (a)
      as to the  3,107,000  shares of common  stock  issuable  upon  exercise of
      options  previously  granted under the 2001 Stock  Incentive Plan upon the
      prices at which such  options may be  exercised,  (b) as to the  remaining
      393,000  shares  issuable  upon  exercise of options or other  stock-based
      awards  reserved for issuance  under the 2001 Stock  Incentive  Plan,  the
      basis of the  average of the high and low  prices for the common  stock as
      quoted on Nasdaq on July 22, 2004.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

      Item 1. Plan Information.*

      Item 2. Registrant Information and Employee Plan Annual Information.*

* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this  Registration  Statement in accordance  with Rule 428 under
the Securities Act of 1933 and the Note to Part I of Form S-8.
MEDIABAY, INC.

                        1,820,000 Shares of Common Stock

      This prospectus  relates to up to 1,820,000  shares of the common stock of
MediaBay,   Inc.,  which  have  been  registered  for  resale  by  some  of  our
shareholders  pursuant  to this  prospectus.  These  shares  are  issuable  upon
exercise of options granted under MediaBay's 2001 Stock Incentive Plan.

      The  common  stock  may be  offered  from  time  to  time  by the  selling
shareholders  through ordinary  brokerage  transactions in the  over-the-counter
markets, in negotiated transactions or otherwise, at market prices prevailing at
the time of sale or at  negotiated  prices and in other ways as described in the
"Plan of  Distribution."  MediaBay  will receive  proceeds from any exercise for
cash of the  options  but not from any sale of the shares of common  stock being
offered hereby that are underlying the options.

      The common stock is listed for trading on the Nasdaq National Market under
the symbol "MBAY".  On July 22, 2004, the closing sale price of the common stock
as reported by the Nasdaq National Market was $0.41.

      AN  INVESTMENT  IN THE COMMON  STOCK IS  SPECULATIVE  AND  INVOLVES A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 3.

      NEITHER THE  SECURITIES AND EXCHANGE  COMMISSION NOR ANY STATE  SECURITIES
COMMISSION HAS APPROVED OR  DISAPPROVED  OF THESE  SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.

                  The date of this Prospectus is July 26, 2004.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

      The following  documents  previously filed by MediaBay with the Securities
and Exchange Commission are incorporated herein by reference and shall be deemed
a part of this prospectus:

     (1)  Annual Report on Form 10-K for the year ended December 31, 2003;

     (2)  Quarterly Report on Form 10-Q for the period ended March 31, 2004;

     (3)  Current Report on Form 8-K filed with the SEC on January 30, 2004;

     (4)  Current Report on Form 8-K filed with the SEC on April 1, 2004;

     (5)  Current Report on Form 8-K filed with the SEC on April 12, 2004;

     (6)  Current Report on Form 8-K filed with the SEC on April 30, 2004;

     (7)  Current Report on Form 8-K filed with the SEC on May 26, 2004; and

     (8)  The  description  of our common stock  contained  in our  Registration
          Statement  on Form 8-A dated  November  12,  1999,  together  with any
          amendment or report filed with the SEC for the purpose of updating the
          description;

      All documents  MediaBay files  pursuant to Sections  13(a),  13(c),  14 or
15(d) of the Securities  Exchange Act of 1934, after the date of this prospectus
at 12 nd before the  termination of the offering of the securities  hereby shall
be deemed to be incorporated by reference in this prospectus and to be a part of
this  prospectus  on  the  date  of  filing  of  the  documents.  Any  statement
incorporated in this prospectus shall be deemed to be modified or superseded for
purposes of this  prospectus  to the extent that a statement  contained  in this
prospectus  or in any other  subsequently  filed  document  which also is, or is
deemed  to  be,  incorporated  by  reference  in  this  prospectus  modifies  or
supersedes the statement.  Any statement so modified or superseded  shall not be
deemed,  except as so  modified  or  superseded,  to  constitute  a part of this
prospectus or the registration statement of which it is a part.

      This  prospectus  incorporates  documents  by  reference  with  respect to
MediaBay that are not presented  herein or delivered  herewith.  These documents
are available  without charge to any person,  including any beneficial  owner of
our  securities,  to whom this  prospectus  is  delivered,  upon written or oral
request to Mr. John Levy,  MediaBay,  Inc., 2 Ridgedale Avenue, Suite 300, Cedar
Knolls, New Jersey 07927, telephone: (973) 539-9528.

      MediaBay is subject to the informational requirements of the Exchange Act.
We file reports,  proxy  statements  and other  information  with the SEC. These
reports  and  other  information  can be read and  copied  at the  SEC's  Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain
information on the operation of the Public  Reference Room by calling the SEC at
1-800-SEC-0330.  Our electronic  filings made through the SEC's  electronic data
gathering,  analysis and  retrieval  system are publicly  available  through the
SEC's worldwide web site (http://www.sec.gov).

                                       -2-
THE COMPANY

      MediaBay,  Inc.  is  a  marketer  of  spoken  audio  products,   including
audiobooks  and  old-time  radio  shows,  through  direct  response,  retail and
internet channels.  MediaBay markets audiobooks primarily through its Audio Book
Club and its  old-time  radio  programs  through  direct-mail  catalogs,  on the
internet at RadioSpirits.com and on a wholesale basis to major retailers.

                                  RISK FACTORS

      Prospective investors should consider carefully the following risk factors
before  purchasing  any shares of the common stock offered hereby by the selling
shareholders.

                    RISKS RELATING TO OUR FINANCIAL CONDITION

      WE HAVE A HISTORY OF LOSSES, ARE NOT CURRENTLY  PROFITABLE,  AND EXPECT TO
INCUR LOSSES IN THE FUTURE.

      Since our inception,  we have incurred significant losses. As of March 31,
2004,  we had  incurred  an  accumulated  deficit  of $103  million.  Losses are
continuing  and are  expected  to  continue.  We may not be able to achieve  and
sustain profitable operations.

      OUR  AUDITORS  EXPRESSED  DOUBT  ABOUT OUR  ABILITY TO CONTINUE AS A GOING
CONCERN IN THEIR AUDIT REPORT FOR THE FISCAL YEAR ENDED DECEMBER 31, 2003.

      Our auditors have included an explanatory paragraph in their audit opinion
with respect to our consolidated  financial statements at December 31, 2003. The
paragraph  states that our recurring losses from operations and our inability to
meet our debt obligations as they come due in 2004 raise substantial doubt about
our ability to continue as a going concern.  Furthermore, the factors leading to
and  the  existence  of the  explanatory  paragraph  may  adversely  affect  our
relationships with suppliers and other creditors and customers and may adversely
affect our ability to obtain additional financing.

      WE HAVE SIGNIFICANT  OUTSTANDING  INDEBTEDNESS  WHICH IMPOSES  SIGNIFICANT
RESTRICTIONS ON OUR BUSINESS.

      As of May 31, 2004 we had  approximately  $9.5 million of debt outstanding
under our credit facility and  approximately  $9.4 million  principal  amount of
debt outstanding and related accrued interest under promissory notes. Our credit
facility  restricts our ability to raise financing for working capital  purposes
because it requires us to use 50% of any  proceeds  from  equity  financings  to
repay amounts  outstanding  under the credit agreement and restricts our ability
to incur additional  indebtedness.  In addition, our existing indebtedness under
our line of credit limits or prohibits us from, among other things:

      o     merging into or consolidating with another corporation;

      o     selling all or substantially all of our assets;

      o     declaring or paying cash dividends; or

      o     materially changing the nature of our business.

                                       -3-
RISKS RELATING TO OUR OPERATIONS

      IF WE DO NOT HAVE  SUFFICIENT  FUNDS TO MARKET TO ATTRACT  NEW MEMBERS AND
CUSTOMERS, OUR CUSTOMER AND REVENUE BASES WILL CONTINUE TO ERODE.

      Because we significantly  reduced our market expenditures for new members,
our club  membership and revenues  declined  significantly.  Sales for the three
months  ended March 31, 2004  decreased  $5.0  million or 47% to $5.6 million as
compared to $10.6  million for the three months ended March 31, 2003.  Sales for
the year ended  December 31, 2003 decreased $9.1 million or 20% to $36.6 million
as compared to $45.7  million for the year ended  December 31, 2002.  Audio Book
Club sales  decreased  during each period  principally due to a decrease in club
membership as a result of a reduction in our  advertising  expenditures  for new
members.  For the year ended December 31, 2003, we spent $2.1 million to attract
new Audio Book Club  members,  a reduction of $6.2 million,  or 74.7%,  from the
amount  spent to  attract  new  members  of $8.3  million  during the year ended
December 31, 2002,  principally due to the lack of necessary funds. If we do not
have the funds  available  to spend to  acquire  new  members  to offset  member
attrition and/or expand our existing  membership and customer bases, our revenue
will  continue  to  decline,  which  will  continue  to  negatively  impact  our
performance  and could  ultimately  impair our  ability to  continue  as a going
concern.

      OUR  PRODUCTS  ARE SOLD IN A NICHE  MARKET  THAT MAY HAVE  LIMITED  FUTURE
GROWTH POTENTIAL.

      Although  the market for  audiobooks  has  expanded in recent  years,  the
markets for our products are niche markets.  Consumer interest in audiobooks and
old-time radio may decline in the future, and growth trends in these markets may
stagnate or decline.  A decline in the  popularity  of  audiobooks  and old-time
radio would limit our future growth  potential and negatively  impact our future
operating results.

      WE MAY BE UNABLE TO  ANTICIPATE  CHANGES IN  CONSUMER  PREFERENCE  FOR OUR
PRODUCTS AND MAY LOSE SALES OPPORTUNITIES.

      Our success  depends largely on our ability to anticipate and respond to a
variety of changes in the audiobook and old-time radio industries. These changes
include   economic   factors   affecting    discretionary   consumer   spending,
modifications  in consumer  demographics  and the availability of other forms of
entertainment.  The audiobook and old-time  radio markets are  characterized  by
changing consumer preferences, which could affect our ability to:

      o     plan for catalog offerings;

      o     introduce new titles;

      o     anticipate order lead time;

      o     accurately assess inventory requirements; and

      o     develop new product delivery methods.

      Although we evaluate many factors and attempt to anticipate the popularity
and life cycle of audiobook  titles,  the ultimate  level of demand for specific
titles is subject  to a high level of  uncertainty.  Sales of  audiobook  titles
typically decline rapidly after the first few months following release. If sales
of specific  titles  decline more rapidly than we expect,  we could be left with
excess inventory, which we might be forced to sell at reduced prices. If we fail
to  anticipate  and respond to factors  affecting  the  audiobook  industry in a
timely manner,  we could lose significant  amounts of capital or potential sales
opportunities.

                                      -4-
WE MAY  EXPERIENCE  SYSTEM  INTERRUPTIONS,  WHICH AFFECT ACCESS TO OUR WEB
SITES AND OUR ABILITY TO SELL PRODUCTS OVER THE INTERNET.

      Our future  revenue  depends,  in part, on the number of web site visitors
who  join as  Audio  Book  Club  members  and who  make  online  purchases.  The
satisfactory  performance,  reliability  and  availability  of  our  web  sites,
transaction-processing  systems and network  infrastructure  are critical to our
ability to attract and retain visitors at our web sites. If we experience system
interruptions that prevent customers and potential  customers from accessing our
web sites,  consumer  perception  of our  on-line  business  could be  adversely
affected, and we could lose sales opportunities and visitor traffic.

      WE MAY NOT BE ABLE TO LICENSE OR PRODUCE  DESIRABLE  SPOKEN WORD  CONTENT,
WHICH COULD REDUCE OUR REVENUES.

      We could lose sales  opportunities  if we are unable to continue to obtain
the rights to additional  audiobook libraries or selected audiobook titles. Some
of our  license  agreements  expire  over the  several  months  unless  they are
renewed.  We may not be able to renew existing  license and supply  arrangements
for audiobook  publishers'  libraries or enter into additional  arrangements for
the supply of new audiobook titles.

      IF OUR THIRD-PARTY PROVIDERS FAIL TO PERFORM THEIR SERVICES PROPERLY,  OUR
BUSINESS AND RESULTS OF OPERATIONS COULD BE ADVERSELY AFFECTED.

      Third-party providers conduct all of our Audio Book Club and a majority of
our Radio  Spirits  customer  service  operations,  process  orders and  collect
payments for us. If these  providers  fail to perform their  services  properly,
Audio Book Club members and Radio  Spirits'  customers  could  develop  negative
perceptions of our business,  collections of receivables  could be delayed,  our
operations  might not  function  efficiently,  our expenses may increase and our
revenue may decline.

      IF OUR MARKETING STRATEGIES TO ACQUIRE NEW MEMBERS ARE NOT SUCCESSFUL,  WE
WILL NOT  ACQUIRE AS MANY  MEMBERS AS WE  ANTICIPATE  OR ACQUIRE  MEMBERS  WHOSE
PERFORMANCE  IS  UNPROFITABLE,  WHICH WOULD INHIBIT OUR SALES GROWTH OR INCREASE
OUR COSTS.

      If our direct mail and other marketing strategies are not successful,  our
per member  acquisition  costs may increase and we may acquire fewer new members
than  anticipated or the members we do acquire may not purchase as many products
as we anticipate, return products at a higher rate than we expect or fail to pay
for their  purchases.  As a result,  our  operating  results would be negatively
impacted and our sales growth would be inhibited.

      THE PUBLIC MAY BECOME LESS RECEPTIVE TO UNSOLICITED DIRECT MAIL CAMPAIGNS.

      The success of our direct mail  campaigns  is  dependent  on many  factors
including the public's acceptance of direct mail solicitations.  Negative public
reception  of  direct  mail   solicitations   will  result  in  lower   customer
acquisitions  rates and higher  customer  acquisition  costs and will negatively
impact operating results and sales growth.

      INCREASED MEMBER ATTRITION COULD NEGATIVELY IMPACT OUR FUTURE REVENUES AND
OPERATING RESULTS.

      As is typical with  membership  clubs,  we experience  significant  member
attrition.  Our Audio Book Club lost more active  members  than new members that
joined in 2003.  Increases in membership attrition above the rates we anticipate
could  materially  reduce our future  revenues.  We incur  significant  up front
expenditures  in connection  with acquiring new members.  A member may not honor
his or her commitment,  or we may choose to terminate a specific  membership for
several reasons,  including  failure to pay for purchases,  excessive returns or
cancelled  orders.  As a result,  we may not be able to fully  recoup  our costs
associated with acquiring new members. In addition,  once a member has satisfied
his or her initial  commitment  to  purchase  additional  audiobooks  at regular
prices, the member has no further commitment to make purchases.

                                      -5-
NEW LAWS ADDRESSING THE SENDING OF E-MAILS MAY LIMIT OUR ABILITY TO MARKET
OR SUBJECT US TO PENALTIES.

      New laws recently  enacted to limit "spam"  e-mails may impact our ability
to  conduct  e-mail  campaigns.  While we attempt  to only use  "opt-in"  e-mail
addresses  and to work with  third  parties  whose  lists  consist  of  "opt-in"
e-mails, the law may limit the number of third parties whose lists we can use or
significantly  reduce the number of e-mails  within these lists.  Limitations on
our ability to continue the use of e-mail  marketing  campaigns  could adversely
affect our ability to attract new Audio Book Club  members and increase our cost
to acquire new members.

      THE CLOSING OF RETAIL STORES,  WHICH CARRY OUR PRODUCTS  COULD  NEGATIVELY
IMPACT OUR WHOLESALE SALES OF THESE PRODUCTS.

      Bankruptcy  filings by major retailers may limit the number of outlets for
our  old-time  radio  products.  With  fewer  chains  and  stores  available  as
distribution outlets,  competition for shelf space will increase and our ability
to sell our products could be impacted negatively. Moreover, our wholesale sales
could be negatively  impacted if any of our significant retail customers were to
close a significant number of their locations or otherwise  discontinue  selling
our products.

      IF THIRD  PARTIES  OBTAIN  UNAUTHORIZED  ACCESS TO OUR MEMBER AND CUSTOMER
DATABASES  AND OTHER  PROPRIETARY  INFORMATION,  WE WOULD  LOSE THE  COMPETITIVE
ADVANTAGE THEY PROVIDE.

      We  believe  that  our  member  file  and  customer   lists  are  valuable
proprietary  resources,  and we have expended  significant amounts of capital in
acquiring these names. Our member and customer lists, trade secrets,  trademarks
and other  proprietary  information have limited  protection.  Third parties may
copy or obtain  unauthorized  access to our member and  customer  databases  and
other proprietary know-how, trade secrets, ideas and concepts.

      Competitors could also independently develop or otherwise obtain access to
our  proprietary  information.  In addition,  we rent our lists for one-time use
only to third parties that do not compete with us. This practice  subjects us to
the risk that these third parties may use our lists for  unauthorized  purposes,
including selling them to our competitors.  Our confidentiality  agreements with
our executive officers, employees, list managers and appropriate consultants and
service suppliers may not adequately protect our trade secrets.  If our lists or
other proprietary  information were to become generally available, we would lose
a significant competitive advantage.

      IF WE ARE  UNABLE TO PAY OUR  ACCOUNTS  PAYABLE  IN A TIMELY  MANNER,  OUR
SUPPLIERS AND SERVICE PROVIDERS MAY REFUSE TO SUPPLY US WITH PRODUCTS OR PROVIDE
SERVICES TO US.

      At May 31,  2004,  we owed  approximately  4.7  million to trade and other
creditors.  Approximately  $3.3 million of these accounts payable were more than
60 days past due. If we do not make satisfactory  payments to our vendors,  they
may refuse to continue to provide us with products or services on credit,  which
could interrupt our supply of products or services.

      HIGHER THAN  ANTICIPATED  PRODUCT  RETURN  RATES  COULD  REDUCE OUR FUTURE
OPERATING RESULTS.

      We  experienced  product return rates of  approximately  24%, 26%, and 32%
during the years  ended  December  31,  2001,  2002 and 2003,  respectively.  If
members and customers  return  products to us in the future at higher rates than
in the past or than we currently anticipate,  our net sales would be reduced and
our operating  results would be adversely  affected.  A return rate in excess of
our  allowance for returns would result in a charge to earnings to write off the
related receivables and would reduce our assets.

                                      -6-
IF WE ARE UNABLE TO COLLECT OUR  RECEIVABLES  IN A TIMELY  MANNER,  IT MAY
NEGATIVELY IMPACT OUR CASH FLOW AND OUR OPERATING RESULTS.

      We experienced bad debt rates of approximately 6.1%, 6.2% and 10.8% during
the year ended December 31, 2001, 2002 and 2003, respectively. We are subject to
the risks  associated  with  selling  products  on credit,  including  delays in
collection  or  uncollectibility  of  accounts  receivable.   If  we  experience
significant delays in collection or uncollectibility of accounts receivable, our
liquidity and working capital  position could suffer and we could be required to
increase our allowance for doubtful accounts,  which would increase our expenses
and reduce our assets.

      INCREASES  IN COSTS OF  POSTAGE  COULD  NEGATIVELY  IMPACT  OUR  OPERATING
RESULTS.

      We distribute millions of mailings each year, and postage is a significant
expense in the operation of our business.  We do not pass on the costs of member
mailings and member solicitation  packages.  Even small increases in the cost of
postage,  multiplied  by the  millions of mailings we conduct,  would  result in
increased expenses and would negatively impact our operating results.

      WE FACE  SIGNIFICANT  COMPETITION  FROM A WIDE  VARIETY OF SOURCES FOR THE
SALE OF OUR PRODUCTS.

      We may not be able  to  compete  effectively  because  of the  significant
competition  in our  markets  from  many  competitors,  many of whom are  better
financed and have greater  resources and from other  competing  products,  which
provide similar  entertainment  value.  We compete with other web sites,  retail
outlets and  catalogs,  which offer similar  entertainment  products or content,
including  digital download of spoken word content.  New competitors,  including
large  companies,  may elect to enter the markets for audiobooks and spoken word
content.  We also compete for  discretionary  consumer  spending with mail order
clubs and catalogs,  other direct  marketers and retailers  that offer  products
with similar  entertainment  value as audiobooks  and old-time radio and classic
video  programs,  such as music on cassettes and compact  discs,  printed books,
videos,  and  laser and  digital  video  discs.  Many of these  competitors  are
well-established  companies,  which have greater financial resources that enable
them to better  withstand  substantial  price  competition  or  downturns in the
market for spoken word content.

      RISKS RELATING TO OUR CAPITAL STRUCTURE

      NORTON HERRICK EXERTS SIGNIFICANT INFLUENCE OVER SHAREHOLDER MATTERS.

      Norton Herrick owns approximately 18% of our outstanding common stock, all
of  our  outstanding  Series  A  convertible  preferred  stock  and  all  of our
outstanding Series C convertible  preferred stock, and therefore,  has the right
to cast  approximately  40% of the voting  power of our capital  stock.  He also
holds  approximately  $5.8  million  principal  amount of  convertible  debt and
warrants and options, which in the aggregate are convertible into or exercisable
to purchase  approximately  23.4  million  shares of our common  stock at prices
ranging  from  $0.53  per  share to $4.00  per  share,  which if  converted  and
exercised, would give them the right to vote, in total, approximately 71% of the
voting  power of our capital  stock.  As a  significant  shareholder,  he exerts
significant influence over matters which require shareholder vote, including the
election of directors,  amendments to our Articles of  Incorporation or approval
of  the  dissolution,   merger,  or  sale  of  MediaBay,   our  subsidiaries  or
substantially  all of our assets.  In  addition,  consents of the holders of the
Series A convertible  preferred  stock and Series C convertible  preferred stock
are  required  for  certain  actions,  including  a  merger  or  other  business
combination,  certain assets sales,  the creation,  authorization or increase of
any series of shares of capital stock convertible into common stock,  incurrence
of  indebtedness  and  declaration  or payment of  dividends  on capital  stock.
Ownership of the convertible  debt restricts our ability to take other corporate
actions,  including  the  incurrence of  additional  debt,  without the holders'
consent.  This concentration of ownership and control by Mr. Herrick could delay
or  prevent  a change  in our  control  or other  action,  even when a change in
control or other action might be in the best interests of other shareholders.

                                      -7-
OUR  ABILITY  TO USE OUR NET  OPERATING  LOSSES  WILL BE LIMITED IN FUTURE
PERIODS, WHICH COULD INCREASE OUR TAX LIABILITY.

      Under  Section 382 of the Internal  Revenue Code of 1986,  utilization  of
prior net operating losses is limited after an ownership  change,  as defined in
Section  382,  to an  annual  amount  equal to the  value  of the  corporation's
outstanding stock immediately before the date of the ownership change multiplied
by the long-term tax exempt rate. In the event we achieve profitable operations,
any significant limitation on the utilization of net operating losses would have
the effect of increasing our tax liability and reducing after tax net income and
available  cash  reserves.  We are unable to determine the  availability  of net
operating   losses  since  this   availability   is  dependent  upon  profitable
operations, which we have not achieved in prior periods.

      OUR STOCK PRICE HAS BEEN AND COULD CONTINUE TO BE EXTREMELY VOLATILE.

      The market  price of our  common  stock has been  subject  to  significant
fluctuations  since our initial public  offering in October 1997. The securities
markets  have  experienced,   and  are  likely  to  experience  in  the  future,
significant  price and volume  fluctuations,  which could  adversely  affect the
market price of our common stock without regard to our operating performance. In
addition,  the trading price of our common stock could be subject to significant
fluctuations in response to:

      o     our ability to maintain listing of our common stock on NASDAQ;

      o     actual or anticipated variations in our quarterly operating results;

      o     announcements by us or other industry participants,

      o     factors affecting the market for spoken word content;

      o     changes in national or regional economic conditions;

      o     changes in securities  analysts'  estimates for us, our competitors'
            or our industry or our failure to meet such analysts'  expectations;
            and

      o     general market conditions.

      A LARGE  NUMBER OF SHARES OF OUR COMMON  STOCK COULD BE SOLD IN THE MARKET
IN THE NEAR FUTURE, WHICH COULD DEPRESS OUR STOCK PRICE.

      As of June 1, 2004, we had outstanding  approximately  18.5 million shares
of common stock. In addition,  a substantial portion of our shares are currently
freely trading without restriction under the Securities Act of 1933, having been
registered  for  resale  or held by their  holders  for over two  years  and are
eligible for sale under Rule 144(k). There are currently outstanding options and
warrants to purchase and debt  convertible into an aggregate of approximately 49
million shares of our common stock at an average exercise or conversion price of
$0.96 per share. A substantial  portion of these shares has been  registered for
resale.  To  the  extent  any  of our  warrants  or  options  are  exercised  or
convertible debt is converted, your percentage ownership will be diluted and our
stock price could be further  adversely  affected.  Moreover,  as the underlying
shares are sold,  the market  price could drop  significantly  if the holders of
these  restricted  shares sell them or if the market  perceives that the holders
intend to sell these shares.

      SPECIAL INFORMATION REGARDING FORWARD-LOOKING STATEMENTS

      Certain  statements  in  this  prospectus   constitute   "forward-looking"
statements within the meaning of the Private Securities Litigation Reform Act of
1995. All statements  other than statements of historical facts included in this
prospectus,  including,  without  limitation,  statements  regarding  our future
financial position,  business strategy,  budgets,  projected costs and plans and
objectives  of  our  management  for  future  operations,   are  forward-looking
statements. In addition,  forward-looking statements generally can be identified
by the use of  forward-looking  terminology  such as  "may,"  "will,"  "expect,"

                                      -8-
"Intent,"  "estimate,"  "anticipate,"  "believe,"  or "continue" or the negative
there of or variations thereon or similar terminology.  Although we believe that
the expectations reflected in such forward-looking statements are reasonable, we
cannot assure you that such expectations will prove to be correct. These forward
looking  statements  involve certain known and unknown risks,  uncertainties and
other factors which may cause our actual results, performance or achievements to
be materially  different from any results,  performances or achievements express
or implied by such  forward-looking  statements.  Important  factors  that could
cause  actual  results  to differ  materially  from our  expectations,  include,
without  limitation,  those  discussed  "the  Risk  Factors  section"  appearing
elsewhere  in this  prospectus.  Undue  reference  should not be placed on these
forward-looking statements, which speak only as of the date hereof. We undertake
no obligation to update any forward-looking statements.

                                 USE OF PROCEEDS

      We will not receive any proceeds  from any sales of shares of common stock
made from time to time  hereunder by the selling  shareholders.  Any proceeds we
receive from the exercise of options for cash will be used for working  capital.
We have agreed to bear the expenses in connection  with the  registration of the
common stock being offered hereby by the selling shareholders.

                          DESCRIPTION OF CAPITAL STOCK

GENERAL

      MediaBay is authorized to issue 150,000,000 shares of common stock, no par
value,  and 5,000,000  shares of preferred  stock, no par value, of which 75,000
shares are designated as Series A Convertible Preferred Stock, 10,000 shares are
designated  as Series B  Convertible  Preferred  Stock and  100,000  shares  are
designated as Series C Convertible  Preferred  Stock. As of July 26, 2004, there
were 18,463,624  shares of common stock  outstanding,  25,000 shares of Series A
Convertible  Preferred Stock  outstanding,  3,350 shares of Series B Convertible
Preferred Stock outstanding and 43,527 shares of Series C Convertible  Preferred
Stock outstanding.

COMMON STOCK

      The holders of our common  stock are entitled to one vote per share on all
matters  submitted  to a vote of the  shareholders,  including  the  election of
directors,  and,  subject to preferences that may be applicable to any preferred
stock  outstanding at the time, are entitled to receive  ratably  dividends,  if
any, as may be declared from time to time by the board of directors out of funds
legally  available  therefor.  In the event of  liquidation  or  dissolution  of
MediaBay,  the  holders  of common  stock are  entitled  to  receive  all assets
available for distribution to the shareholders after satisfaction of obligations
to creditors,  subject to any  preferential  rights of any preferred  stock then
outstanding.  The  holders  of our  common  stock  have no  preemptive  or other
subscription rights, and there are no conversion rights or redemption or sinking
fund provisions with respect to the common stock. All of the outstanding  shares
of common stock are, and the shares of common stock offered hereby upon issuance
and sale will be, fully paid and  non-assessable.  The rights,  preferences  and
privileges  of the  holders  of our  common  stock are  subject  to,  and may be
adversely affected by, the right of the holders of any shares of preferred stock
which our board of directors may designate in the future.

PREFERRED STOCK

      Authorized but  undesignated  shares of preferred stock may be issued from
time to time in one or more series upon authorization by our board of directors.
Our  board of  directors,  without  further  approval  of the  shareholders,  is
authorized  to fix the  dividend  rights and terms,  conversion  rights,  voting
rights, redemption rights and terms, liquidation preferences,  and other rights,
preferences,  privileges and restrictions applicable to each series of preferred
stock.  The  issuance  of  preferred  stock,  while  providing   flexibility  in
connection  with  possible  acquisitions  and  other  corporate  purposes  could

                                      -9-
adversely  affect the voting  power of the  holders of common  stock and make it
more  difficult  for a third  party  to gain  control  of  MediaBay  prevent  or
substantially delay a change of control, discourage bids for our common stock at
a premium or otherwise adversely affect the market price of our common stock.

      Series A Convertible Preferred Stock

      There are currently 25,000 shares of Series A Convertible  Preferred Stock
outstanding.  The stated value of the Series A  Convertible  Preferred  Stock is
$100.00 per share.

      Dividends.  Dividends  are payable on the Series A  Convertible  Preferred
Stock  quarterly,  in  arrears,  on each  March 31,  June 30,  September  30 and
December 30 at an annual rate of $9.00 per share.  Dividends  are payable at the
holder's option in (i) additional shares of Series A Convertible Preferred Stock
(ii) shares of common stock or (iii) cash; provided that if the holder elects to
receive a dividend  payment in cash,  the payment will accrue until  MediaBay is
permitted to be made under its existing credit facility.

      Conversion.  The Series A Convertible  Preferred Stock is convertible,  at
the option of the  holder,  into a number of shares of common  stock  equal to a
fraction, (i) the numerator of which is equal to the liquidation preference plus
accrued  and  unpaid  dividends   through  the  conversion  date  and  (ii)  the
denominator is the stock price which is currently $0.56, subject to adjustment.

      Liquidation.  In the event of a liquidation,  dissolution or winding up of
MediaBay,  the holders of Series A Convertible Preferred Stock shall be entitled
to receive  out of the assets of  MediaBay,  a sum in cash equal to $100.00  per
share before any amounts are paid to the holders of MediaBay common stock.

      Voting Rights.  The holders of Series A Convertible  Preferred Stock shall
have the number of votes  equal to the number of shares of Series A  Convertible
Preferred  Stock held  multiplied  by a fraction,  the numerator of which is the
liquidation  preference and the  denominator  is $1.75,  and shall vote together
with the holders of common stock and Series C Convertible  Preferred  Stock as a
single  class  on all  matters  submitted  to the  stockholders  for a vote.  In
addition,  the affirmative  vote of the holders of a majority of the outstanding
shares of Series A  Convertible  Preferred  Stock is required  for,  among other
things,  the  creation,  authorization  or  issuance  of a series  or  shares of
preferred stock senior to, or on parity with, the Series A Convertible Preferred
Stock; a merger,  consolidation or business combination in which MediaBay is not
the surviving  entity and MediaBay's  shareholders do not hold a majority of the
capital  stock of the  surviving  entity;  MediaBay  to incur or permit to exist
indebtedness or liens;  the  declaration or payment of dividends;  redemption or
retirement  of any other  capital  stock;  distributions  to  shareholders;  and
certain sales, transfers and dispositions of assets.

      Series B Convertible Preferred Stock

      There are currently  3,350 shares of Series B Convertible  Preferred Stock
outstanding.  The stated value of the Series B  Convertible  Preferred  Stock is
$100.00 per share.

      Dividends.  Dividends  are payable on the Series B  Convertible  Preferred
Stock  quarterly,  in  arrears,  on each  March 31,  June 30,  September  30 and
December 30 at an annual rate of $9.00 per share.  Dividends  are payable at the
holder's option in (i) additional shares of Series B Convertible Preferred Stock
(ii) shares of common stock or (iii) cash; provided that the payment will accrue
until MediaBay is permitted to be made under its existing credit facility.

      Conversion.  The Series B Convertible  Preferred Stock is convertible,  at
the option of the  holder,  into a number of shares of common  stock  equal to a
fraction, (i) the numerator of which is equal to the liquidation preference plus

                                      -10-
accrued  and  unpaid  dividends   through  the  conversion  date  and  (ii)  the
denominator is the stock price which is currently $0.77, subject to adjustment.

      Liquidation.  In the event of a liquidation,  dissolution or winding up of
MediaBay,  the holders of Series B Convertible Preferred Stock shall be entitled
to receive  out of the assets of  MediaBay,  a sum in cash equal to $100.00  per
share before any amounts are paid to the holders of MediaBay common stock.

      Voting Rights.  The holders of Series B Convertible  Preferred Stock shall
have no voting rights,  except as required by law and except that the consent of
the Series B Convertible  Preferred  Stock,  voting  separately  as a class,  is
required for any  amendment,  alteration  or repeal of the terms of the Series B
Convertible  Preferred Stock which materially and adversely  affects the rights,
preferences and privileges of the Series B Convertible Preferred Stock.

      Series C Convertible Preferred Stock

      There are currently 100,000 shares of Series C Convertible Preferred Stock
outstanding.  The stated value of the Series C  Convertible  Preferred  Stock is
$100.00 per share.

      Dividends.  Dividends  are payable on the Series C  Convertible  Preferred
Stock  quarterly,  in  arrears,  on each  March 31,  June 30,  September  30 and
December 30 at an annual rate of $12.00 per share.  Dividends are payable at the
holder's option in (i) shares of common stock or (ii) cash; provided that if the
holder  elects to receive a dividend  payment in cash,  the payment  will accrue
until MediaBay is permitted to be made under its existing credit facility.

      Conversion.  The Series C Convertible  Preferred Stock is convertible,  at
the option of the  holder,  into a number of shares of common  stock  equal to a
fraction, (i) the numerator of which is equal to the liquidation preference plus
accrued  and  unpaid  dividends   through  the  conversion  date  and  (ii)  the
denominator is the stock price which is currently $0.78, subject to adjustment.

      Liquidation.  In the event of a liquidation,  dissolution or winding up of
MediaBay,  the holders of Series C Convertible Preferred Stock shall be entitled
to receive  out of the assets of  MediaBay,  a sum in cash equal to $100.00  per
share before any amounts are paid to the holders of MediaBay common stock.

      Voting Rights.  The holders of Series C Convertible  Preferred Stock shall
have the number of votes  equal to the number of shares of Series C  Convertible
Preferred  Stock held  multiplied  by a fraction,  the numerator of which is the
liquidation  preference and the  denominator  is $0.78,  and shall vote together
with the holders of common stock and Series A Convertible  Preferred  Stock as a
single  class  on all  matters  submitted  to the  stockholders  for a vote.  In
addition,  the affirmative  vote of the holders of a majority of the outstanding
shares of Series C  Convertible  Preferred  Stock is required  for,  among other
things,  the  creation,  authorization  or  issuance  of a series  or  shares of
preferred stock senior to, or on parity with, the Series C Convertible Preferred
Stock; a merger,  consolidation or business combination in which MediaBay is not
the surviving  entity and MediaBay's  shareholders do not hold a majority of the
capital  stock of the  surviving  entity;  MediaBay  to incur or permit to exist
indebtedness or liens;  the  declaration or payment of dividends;  redemption or
retirement  of any other  capital  stock;  distributions  to  shareholders;  and
certain sales, transfers and dispositions of assets.

CLASSIFIED BOARD OF DIRECTORS

      Our by-laws  divide our board of  directors  into three  classes,  serving
staggered  three-year terms. The staggered terms of the classes of directors may
make it more difficult for a third party to gain control of our board or acquire
MediaBay and may discourage bids for our common stock at a premium. In addition,
our Articles of  Incorporation  provide that  shareholders  may not call special
meetings of  shareholders  unless they represent at least 25% of our outstanding
voting shares of stock.

                                      -11-
TRANSFER AGENT

      The transfer agent and registrar for our common stock is Continental Stock
Transfer & Trust Company, New York, New York.

           SHAREHOLDERS FOR WHICH SHARES ARE BEING REGISTERED FOR SALE

      The  following  table sets forth  information  as of July 26,  2004,  with
respect to the shareholders for which shares are being registered for sale:
Beneficial Ownership of    Shares Registered      Shares Beneficially          % of Shares
Shareholders for Which Shares       Shares of Common Stock,                           Owned Assuming the       Beneficially Owned
are Being Registered                    including Shares        for Sale Assuming      Sale of the Shares      Assuming the Sale of
for Sale                              Registered for Sale     Exercise of Options         Registered          the Shares Registered
------------------------------    -------------------------- ---------------------    --------------------  ------------------------
Richard Berman                                  107,500                50,000                82,500                    *
Jeffrey Dittus                                  700,000             1,500,000               200,000                    *
Paul Ehrlich                                     97,500                70,000                52,500                    *
John Levy                                       387,215               150,000               387,215                    *
Joseph Rosetti                                  107,500                50,000                77,500                    *
-----------------

*Less than 1%

Jeffrey Dittus is Chief Executive Officer and a director of MediaBay.  John Levy
is Chairman and Chief Financial Officer of MediaBay.  Howard Herrick is a former
officer and  director of  MediaBay.  Messrs.  Ehrlich,  Hershorn and Rosetti are
directors of MediaBay.

A total of 25,000 of the shares registered for sale assuming exercise of options
are not included in the shares  beneficially  owned by Mr.  Berman  because such
shares are not exercisable within 60 days of the date of this prospectus.

A total of  1,200,000 of the shares  registered  for sale  assuming  exercise of
options are not included in the shares  beneficially owned by Mr. Dittus because
such shares are not exercisable within 60 days of the date of this prospectus.

A total of 25,000 of the shares registered for sale assuming exercise of options
are not included in the shares  beneficially  owned by Mr. Mr.  Ehrlich  because
such shares are not exercisable within 60 days of the date of this prospectus.

The shares  registered for sale assuming exercise of options are not included in
the  shares  beneficially  owned  by  Mr.  Levy  because  such  shares  are  not
exercisable within 60 days of the date of this prospectus.

A total of 62,500 of the shares registered for sale assuming exercise of options
are not included in the shares  beneficially  owned by Mr. Rosetti  because such
shares are not exercisable within 60 days of the date of this prospectus.

                                      -12-
PLAN OF DISTRIBUTION

      MediaBay is registering the shares on behalf of the selling  shareholders.
As used herein,  selling shareholders includes donees,  transferees and pledgees
selling shares received from a named selling  shareholder after the date of this
prospectus.  We  have  agreed  to bear  the  expenses  in  connection  with  the
registration  of the  shares  offered  and  sold  by the  selling  shareholders.
Brokerage  commissions and similar selling expenses, if any, attributable to the
sale of shares will be borne by the selling shareholder.  Sales of shares may be
affected  by the selling  shareholder  from time to time in one or more types of
transactions,  which may  include  block  transactions,  on the Nasdaq  National
Market,  in  the  over-the-counter  market,  in  negotiated  transactions,  or a
combination of these methods of sale, at market prices prevailing at the time of
sale, or at negotiated prices. These transactions may or may not involve brokers
or dealers.  The selling shareholders have advised us that they have not entered
into any agreements,  understandings  or arrangements  with any  underwriters or
broker-dealers regarding the sale of their securities.

      The  selling  shareholders  may  effect  transactions  by  selling  shares
directly to purchasers,  through agents  designated  from time to time, or to or
through   broker-dealers,   which  may  act  as  agents  or  principals.   These
broker-dealers may receive  compensation in the form of discounts,  concessions,
or commissions from the selling  shareholder and/or the purchasers of shares for
whom broker-dealers may act as agents or to whom they sell as principal, or both
(which  compensation  as to a  particular  broker-dealer  might be in  excess of
customary commissions).

      The selling  shareholders  and any  broker-dealers  that act in connection
with the sale of  shares  of common  stock  might be deemed to be  underwriters,
within  the  meaning  of  Section  2(a)(11)  of  the  Securities  Act,  and  any
commissions  received  by  broker-dealers  and any  profit on the  resale of the
shares  sold  by  them  while  acting  as  principals  might  be  deemed  to  be
underwriting  discounts or  commissions  under the  Securities  Act. The selling
shareholders  may agree to indemnify  any agent,  dealer or  broker-dealer  that
participates  in  transactions  involving  sales of the  shares of common  stock
against certain liabilities,  including liabilities arising under the Securities
Act.

      Because the selling shareholders may be deemed to be underwriters,  within
the meaning of Section  2(a)(11) of the Securities Act, the selling  shareholder
will be subject to the prospectus  delivery  requirements of the Securities Act,
which may include  delivery through the facilities of the Nasdaq National Market
pursuant to Rule 153 under the Securities Act.

      The selling shareholders also may resell all or a portion of the shares of
common  stock in open market  transactions  in reliance  upon Rule 144 under the
Securities Act,  provided they meet the criteria and conform to the requirements
of this rule.

                                 INDEMNIFICATION

      Our Articles of Incorporation  and By-Laws provide that we shall indemnify
our  directors  and  officers to the  fullest  extent  permitted  by the Florida
Business  Corporation  Act. The Florida  Business  Corporation Act provides that
none of our  directors  or  officers  shall be  personally  liable  to us or our
shareholders  for  damages  for  breach  of any  duty  owed to  MediaBay  or our
shareholders,  except for  liability for (i) acts or omissions not in good faith
or which involve intentional  misconduct or a knowing violation of law, (ii) any
unlawful  payment of a dividend or unlawful  stock  repurchase  or redemption in
violation of the Florida  Business  Corporation  Act, (iii) any transaction from
which the director  received an improper personal benefit or (iv) a violation of
a criminal law.

                                      -13-
We  have  entered  into  indemnification   agreements  with  some  of  our
employees,   officers  and  consultants.   Under  the  terms  of  the  indemnity
agreements,  we have agreed to indemnify,  to the fullest extent permitted under
applicable  law,  against any amounts which the employee,  officer or consultant
may become legally obligated to pay in connection with any claim arising from or
out of the  employee,  officer or  consultant  acting,  in  connection  with any
services performed by or on behalf of us and related expenses. Provided however,
that the employee,  officer or consultant  shall reimburse us for the amounts if
the  individual  is  found,  as  finally  judicially  determined  by a court  of
competent jurisdiction, not to have been entitled to indemnification.

      Insofar as  indemnification  for liabilities  arising under the Securities
Act may be  permitted  for  our  directors,  officers  and  controlling  persons
pursuant to the foregoing provisions, or otherwise, we have been advised that in
the  opinion  of the SEC  this  indemnification  is  against  public  policy  as
expressed in the Securities Act and is, therefore,  unenforceable.  In the event
that a claim for  indemnification  against  these  liabilities,  other  than the
payment by us of expenses incurred or paid by a director, officer or controlling
person of us in the  successful  defense of any action,  suit or  proceeding  is
asserted by the director,  officer or controlling  person in connection with the
securities being  registered,  we will, unless in the opinion of its counsel the
matter  has  been  settled  by  controlling  precedent,  submit  to a  court  of
appropriate  jurisdiction the question whether  indemnification by it is against
public  policy as  expressed in the  Securities  Act and will be governed by the
final adjudication of the issue.

                                  LEGAL MATTERS

      The legality of the shares of common stock offered  hereby was passed upon
for MediaBay, Inc. by Blank Rome LLP, New York, New York.

                                     EXPERTS

      The financial  statements and the related financial statement schedule for
the year-ended  December 31, 2003  incorporated  in this prospectus by reference
from MediaBay, Inc.'s Annual Report on Form 10-K for the year ended December 31,
2003 have been  audited by Amper  Politzner & Mattia,  P.C.,  as stated in their
report, which is incorporated herein by reference, and have been so incorporated
in reliance  upon the report of such firm given upon their  authority as experts
in accounting and auditing.

      The financial  statements and the related financial statement schedule for
the years ended December 31, 2001 and 2002  incorporated  in this  prospectus by
reference  from  MediaBay,  Inc.'s Annual Report on Form 10-K for the year ended
December  31, 2003 have been  audited by  Deloitte & Touche LLP, an  independent
registered  public  accounting  firm,  as  stated  in  their  report,  which  is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their  authority as experts in accounting and
auditing.

                                      -14-
WHERE YOU CAN FIND INFORMATION

      MediaBay has filed with the SEC, a Registration  Statement with respect to
the securities  offered by this prospectus.  This  prospectus,  filed as part of
such Registration  Statement,  does not contain all of the information set forth
in, or annexed as exhibits  to, the  Registration  Statement,  portions of which
have been omitted in accordance  with the rules and  regulations of the SEC. For
further  information  with respect to MediaBay and this  offering,  reference is
made to the Registration  Statement,  including exhibits filed therewith,  which
may be read and  copied  at the SEC at Room  1024,  Judiciary  Plaza,  450 Fifth
Street,  N.W.,  Washington,  D.C. 20549, and at its regional  offices:  500 West
Madison  Street,  Suite 1400,  Chicago,  Illinois  60661-2511  and 7 World Trade
Center,  13th Floor,  New York,  New York 10048.  You can obtain copies of these
materials at prescribed  rates from the Public  Reference Room of the SEC at 450
Fifth Street,  N.W.,  Washington,  D.C. 20549. You may obtain information on the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Our
electronic  filings made through the SEC's  electronic data gathering,  analysis
and retrieval system are publicly available through the SEC's worldwide web site
(http://www.sec.gov).

                                      -15-
================================================================================

      We have not  authorized  any dealer,  sales  person or any other person to
give any information or to represent  anything not contained in this prospectus.
You must not rely on any  unauthorized  information.  This  prospectus  does not
offer to sell or buy any securities in any jurisdiction where it is unlawful.

                                TABLE OF CONTENTS

                                      Page

Incorporation of Certain Documents

  by Reference...............................................................  2
The Company..................................................................  3
Risk Factors.................................................................  4
Special Information Regarding ...............................................
  Forward-looking Information................................................  8
Use of Proceeds..............................................................  9
Description of Capital Stock.................................................  9
Shareholders for Which Shares ...............................................
  are Being Registered for Sale.............................................. 12
Plan of Distribution......................................................... 13
Indemnification.............................................................. 13
Legal Matters................................................................ 14
Experts...................................................................... 14
Where You Can Find Information................................................15

                                1,820,000 SHARES

                                  COMMON STOCK

                                 MEDIABAY, INC.

                                 --------------

                                   PROSPECTUS

                                 --------------

                                  JULY 26, 2004

================================================================================
PART II

               INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

          Item 3.  Incorporation of Documents by Reference.

          The following  documents  previously  filed by the Registrant with the
Securities  and Exchange  Commission  (the  "Commission")  are  incorporated  by
reference in this Registration Statement:

     1.   Annual Report on Form 10-K for the year ended December 31, 2003;

     2.   Quarterly Report on Form 10-Q for the period ended March 31, 2004;

     3.   Current Report on Form 8-K filed with the SEC on January 30, 2004;

     4.   Current Report on Form 8-K filed with the SEC on April 1, 2004;

     5.   Current Report on Form 8-K filed with the SEC on April 12, 2004;

     6.   Current Report on Form 8-K filed with the SEC on April 30, 2004;

     7.   Current Report on Form 8-K filed with the SEC on May 26, 2004; and

     8.   The  description  of  the  Company's  common  stock  contained  in its
          Registration  Statement on Form 8-A dated November 12, 1999,  together
          with any  amendment or report filed with the  Securities  and Exchange
          Commission for the purpose of updating such description.

      All documents  subsequently  filed by the Registrant  pursuant to Sections
13(a),  13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold,  shall
be deemed to be incorporated by reference in this Registration  Statement and to
be a part  hereof  from the  respective  date of filing of such  documents.  Any
statement  contained in a document  incorporated by reference herein is modified
or superseded for all purposes to the extent that a statement  contained in this
Registration  Statement or in any other  subsequently  filed  document  which is
incorporated by reference modifies or replaces such statement.

      Any  reference  herein  shall be deemed to be modified or  superseded  for
purposes of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document which also is incorporated or
deemed to be  incorporated  by  reference  herein  modifies or  supersedes  such
statement.  Any such  statement so modified or  superseded  shall not be deemed,
except as so modified or superseded,  to constitute a part of this  Registration
Statement.

          Item 4. Description of Securities.

          Not applicable.

          Item 5. Interests of Named Experts and Counsel.

          Not applicable

          Item 6. Indemnification of Directors and Officers.

      The  Florida  Business   Corporation  Act  (the  "Florida  Act")  contains
provisions entitling the Registrant's  directors and officers to indemnification
from  judgments,   settlements,   penalties,   fines,  and  reasonable  expenses
(including  attorney's  fees) as the result of an action or  proceeding in which
they may be  involved  by reason of having  been a  director  or  officer of the
Registrant.  In its Articles of  Incorporation,  the  Registrant  has included a
provision that limits,  to the fullest extent now or hereafter  permitted by the
Florida Act, the personal  liability of its  directors to the  Registrant or its

                                      II-2
shareholders  for  monetary  damages  arising  from a breach of their  fiduciary
duties  as  directors.  Under the  Florida  Act as  currently  in  effect,  this
provision limits a director's  liability  except where such director  breaches a
duty.

         The Registrant's Articles of Incorporation and By-Laws provide that the
Registrant  shall  indemnify,  and upon request shall  advance  expenses to, its
directors and officers to the fullest  extent  permitted by the Florida Act. The
Florida Act  provides  that no director  or officer of the  Registrant  shall be
personally  liable to the Registrant or its  shareholders for damages for breach
of any duty owed to the Registrant or its shareholders, except for liability for
(i) acts or omissions not in good faith or which involve intentional  misconduct
or a knowing  violation  of law,  (ii) any  unlawful  payment of a  dividend  or
unlawful  stock  repurchase or redemption in violation of the Florida Act, (iii)
any transaction from which the director received an improper personal benefit or
(iv) a  violation  of a  criminal  law.  This  provision  does not  prevent  the
Registrant  or  its  shareholders  from  seeking  equitable  remedies,  such  as
injunctive  relief or  rescission.  If  equitable  remedies  are found not to be
available to shareholders in any particular case,  shareholders may not have any
effective  remedy against actions taken by directors that constitute  negligence
or gross negligence.

         The Registrant has entered into indemnification agreements with certain
employees,  officers  and  consultants.  Pursuant to the terms of the  indemnity
agreements,  the  Registrant  has agreed to  indemnify,  to the  fullest  extent
permitted under applicable law, against any amounts which the employee,  officer
or consultant may become legally  obligated to pay in connection  with any claim
arising from or out of the employee, officer or consultant acting, in connection
with any  services  performed  by or on behalf  of the  Registrant  and  certain
expenses  related  thereto.  Provided  however,  that the  employee,  officer or
consultant  shall  reimburse  the  Registrant  for  such  amounts  if  the  such
individual is found,  as finally  judicially  determined by a court of competent
jurisdiction, not to have been entitled to such indemnification.

         Insofar as indemnification for liabilities arising under the Securities
Act may be  permitted to  directors,  officers  and  controlling  persons of the
Registrant  pursuant to any charter provision,  by-law,  contract,  arrangement,
statute or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange  Commission (the "Commission")  such  indemnification is
against  public  policy as expressed in the  Securities  Act and is,  therefore,
unenforceable.

          Item 7. Exemption from Registration Claimed.

          Not Applicable.

          Item 8. Exhibits.

Exhibit No.  Description
-----------  -----------
      5      Opinion of Blank Rome LLP

     23.1    Consent of Amper Politzner & Mottia, P.C.

     23.2    Consent of Deloitte & Touche LLP

     23.3    Consent of Blank Rome Tenzer Greenblatt LLP (included in Exhibit 5)

     24      Power  of  Attorney  (included  on Page  II-5  of this Registration
             Statement)

                                      II-3
Item 9. Undertakings.

          The undersigned Registrant hereby undertakes:

          (1)  To file,  during  any  period in which  offers or sales are being
made, a post-effective amendment to this Registration Statement:

               (i)  To include any  prospectus  required by Section  10(a)(3) of
                    the Securities Act of 1933;

               (ii) To reflect  in the  prospectus  any facts or events  arising
                    after the effective date of the  Registration  Statement (or
                    the most recent  post-effective  amendment  thereof)  which,
                    individually  or in the  aggregate,  represent a fundamental
                    change  in the  information  set  forth in the  Registration
                    Statement.  Notwithstanding  the foregoing,  any increase or
                    decrease  in  volume  of  securities  offered  (if the total
                    dollar  value of  securities  offered  would not exceed that
                    which was registered) and any deviation from the low or high
                    and of the estimated maximum offering range may be reflected
                    in the form of prospectus filed with the Commission pursuant
                    to Rule 424(b) if, in the  aggregate,  the changes in volume
                    and prices  represent no more than 20 percent  change in the
                    maximum   aggregate   offering   price   set  forth  in  the
                    "Calculation  of  Registration  Fee" table in the  effective
                    registration statement; and

               (iii)To include  any  material  information  with  respect to the
                    plan  of  distribution  not  previously   disclosed  in  the
                    Registration  Statement  or  any  material  change  to  such
                    information in the Registration Statement;

     provided,  however,  that paragraphs (1)(i) and (1)(ii) do not apply if the
     information required to be included in a post-effective  amendment by those
     paragraphs is contained in periodic  reports filed with or furnished to the
     Commission  by the  Registrant  pursuant  to  Section  13 or  15(d)  of the
     Securities  Exchange Act of 1934 that are  incorporated by reference in the
     Registration Statement.

          (2) That,  for the  purpose of  determining  any  liability  under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such  securities at that time shall be deemed to be the initial bona
fide offering thereof.

          (3)  To  remove  from   registration  by  means  of  a  post-effective
amendment  any of the  securities  being  registered  which remain unsold at the
termination of the offering.

     The  undersigned   Registrant  hereby  undertakes  that,  for  purposes  of
determining  any liability  under the Securities Act of 1933, each filing of the
Registrant's  annual  report  pursuant to Section  13(a) or Section 15(d) of the
Securities  Exchange  Act of 1934  (and  where  applicable,  each  filing  of an
employee  benefit  plan's  annual  report  pursuant  to  Section  15(d)  of  the
Securities  Exchange  Act of 1934)  that is  incorporated  by  reference  in the
Registration  Statement  shall  be  deemed  to be a new  registration  statement
relating to the securities offered therein,  and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.

     Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors,  officers and controlling  persons of the
Registrant pursuant to the foregoing  provisions,  or otherwise,  the Registrant
has been advised that in the opinion of the Securities  and Exchange  Commission
such  indemnification  is against  public policy as expressed in the Act and is,
therefore,  unenforceable. In the event that a claim for indemnification against
such liabilities  (other than the payment by the Registrant of expenses incurred
or paid by a director,  officer or  controlling  person of the Registrant in the
successful  defense of any  action,  suit or  proceeding)  is  asserted  by such
director,  officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been  settled by  controlling  precedent,  submit to a court of  appropriate
jurisdiction the question whether such  indemnification  by it is against public
policy as expressed  in such Act and will be governed by the final  adjudication
of such issue.

                                      II-4
SIGNATURES

     Pursuant to the  requirements of the Securities Act of 1933, the Registrant
certifies  that it has  reasonable  grounds to believe  that it meets all of the
requirements  for  filing  on Form S-8 and has  duly  caused  this  Registration
Statement  to be  signed  on its  behalf  by  the  undersigned,  thereunto  duly
authorized, in Cedar Knolls, New Jersey, on this 26 day of July 2004.

                                        MEDIABAY, INC.

                                        By: /s/ John Levy
                                            -----------------------------------
                                            John Levy, Chairman and
                                            Chief Financial Officer

      Each person whose signature  appeart s below  authorizes each of John Levy
and Jeffrey  Dittus,  or either of them as his true and lawful  attorney-in-fact
with full  power of  substitution  to  execute in the name and on behalf of each
such person, individually and in each capacity stated below, and to file any and
all  amendments  to  this   Registration   Statement,   including  any  and  all
post-effective amendments thereto.

      Pursuant  to  the  requirements  of  the  Securities  Act  of  1933,  this
Registration  Statement was signed by the following person in the capacities and
on the dates stated.
Signature                           Title                                                Date
    ---------                           -----                                                ----
/s/ Jeffrey Dittus        Director and Chief Executive Officer                      July 26, 2004
    ----------------------    (Principal Executive Officer)
    Jeffrey Dittus

    /s/ John Levy             Chairman and Chief Financial Officer (Principal
    ----------------------    Financial and Accounting Officer)                         July 26, 2004
    John Levy

    /s/ Richard Berman        Director                                                  July 26, 2004
    ----------------------
    Richard Berman

    /s/ Paul Ehrlich          Director                                                  July 26, 2004
    ----------------------
    Paul Ehrlich

                              Director

    Joseph R. Rosetti

                              Director

    Paul Neuwirth

    /s/ Stephen Yarvis        Director                                                  July 26, 2004
    ----------------------
    Stephen Yarvis
II-5