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Termination Agreement - MEDIABAY INC - 4-14-2004

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Termination Agreement - MEDIABAY INC - 4-14-2004 Powered By Docstoc
					                                       TERMINATION AGREEMENT

AGREEMENT, dated as of the 8th day of March 2004, among XNH Consulting Services, Inc., a Florida
corporation ("XNH"), MediaBay, Inc., a Florida Corporation ("MediaBay" or the "Company"), and Norton
Herrick ("Herrick").

                                             WITNESSETH:

WHEREAS, XNH, Herrick and the Company entered into a Consulting Agreement dated May 1, 2003 (the
"Consulting Agreement"); and

WHEREAS, subject to the terms and conditions herein contained, the parties hereto wish to terminate the
Consulting Agreement effective as of December 31, 2003;

NOW, THEREFORE, in consideration of the covenants herein contained, the parties hereto hereby agree as
follows:

1. TERMINATION OF CONSULTING AGREEMENT. Effective as of December 31, 2003 ("Termination
Date"), and except as expressly set forth herein, the Consulting Agreement is terminated and is of no further force
or effect.

2. ADVISORY SERVICES. XNH will cause Herrick to provide advisory services to the Company, from time
to time upon request by MediaBay, as determined by XNH in its sole discretion, and in accordance with
Herrick's availability, by telephone, e-mail, or scheduled appointment. It is understood and agreed that while
providing advisory services, if any, to the Company hereunder, XNH and Herrick may engage in any business or
employment activities in any field either for his own account or for the account of others subject to the provisions
of
Section 3 below.

3. NONCOMPETITION COVENANT. Herrick and XNH agree that the Noncompetition Covenant in Section
3 of the Consulting Agreement will survive the termination of the Consulting Agreement for a period of three
years from the Termination Date.

4. NONDISCLOSURE OBLIGATION. Herrick and XNH agree that the Nondisclosure Covenant in Section 4
of the Consulting Agreement will survive the termination of the Consulting Agreement for a period of three years
from the Termination Date.

5. TERMINATION PAYMENT AND INSURANCE. In consideration for the advisory services that may be
provided by Herrick and XNH and the extensions of the noncompetition covenant and nondisclosure obligation
agreed to by Herrick and XNH, as set forth in Sections 2 through 4 of this Agreement, and as consideration for
the Company's termination of the Consulting Agreement, the Company agrees to pay to XNH a fee at the rate of
$7,500 per month for 16 months commencing on January 1, 2004. In addition, Herrick shall remain entitled to
receive insurance and employee benefits applicable to officers of the Company, to the extent permitted by any
benefit plan now or hereinafter in effect and, if health insurance benefits for Herrick are not permitted by any such
plan, the Company shall reimburse Herrick for COBRA coverage in an amount equal to what the cost of such
benefits would be under the Company's benefit plans.

                                                          1
6. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that during the term of this
Agreement, Herrick and XNH's relationship to MediaBay will be that of an independent contractor and that
neither this Agreement nor the services to be rendered hereunder shall for any purpose whatsoever or in any way
or manner create, expressly or by implication, any employer-employee relationship, partnership, joint venture or
other relationship with MediaBay other than that of independent parties contracting with each other solely for the
purpose of carrying out the provisions of the Agreement. XNH and Herrick shall have sole responsibility for the
payment of all federal, state and local income taxes and for Social Security and other similar taxes with respect to
any compensation provided by MediaBay hereunder. Neither XNH nor Herrick is authorized to bind MediaBay,
or to incur any obligation or liability on behalf of MediaBay, except as expressly authorized by MediaBay in
writing. XNH understands and agrees that the work to be performed, if any, is not covered under the
unemployment compensation laws and that the work to be performed is not intended to be covered by applicable
worker's compensation laws.

7. INDEMNIFICATION. The Company and Herrick acknowledge that the indemnification agreement dated as
of November 15, 2002 by and between the Company and Herrick shall remain in full force and effect and that
the Company shall indemnify XNH for any Claims (as defined in such indemnification agreement) against XNH to
the extent that Herrick is entitled to receive indemnification therefor.

8. MISCELLANEOUS.

8.1 NOTICES. All notices, requests, demands and other communications hereunder shall be in writing and shall
be deemed to have been duly given or made as of the date delivered or mailed if delivered personally or mailed
by registered or certified mail, postage prepaid, return receipt requested, to the parties at their respective
addresses set forth below:

If to the Company:


                                                MediaBay, Inc.
                                         2 Ridgedale Avenue - Suite 300
                                            Cedar Knolls, NJ 07927

                                              If to XNH or Herrick:
                                        c/o XNH Consulting Services, Inc.
                                           2295 Corporate Blvd. N.W.
                                                     Suite 222
                                             Boca Raton, FL 33431

8.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties hereto with respect
to the subject matter hereof, and supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter hereof.

                                                         2
8.3 CHOICE OF LAW/GOVERNING LAW. This Agreement shall be construed and enforced in accordance
with the internal laws of the State of New Jersey without reference to its conflicts of laws provisions.

8.4 AMENDMENT. This Agreement may only be modified by a written instrument, which is executed by each
of the parties hereto.

8.5 HEADINGS. The headings contained herein are for the sole purpose of convenience of reference, and shall
not in any way limit or affect the meaning or interpretation of any of the terms of this Agreement.

8.6 BINDING EFFECT; BENEFIT. This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their respective heirs, legal representatives, successors and assigns.

8.7 COUNTERPARTS AND FACSIMILE. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together will constitute one and the same
instrument. For purposes of this Agreement signatures received by facsimile shall have the same force and effect
as original signatures.

                                     [SIGNATURE PAGE FOLLOWS]

                                                        3
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto as of the date
first above written.

                                         MEDIABAY, INC.

                                 By:    /s/ John F. Levy
                                        ---------------------------
                                 Name: John F. Levy
                                 Title: Executive Vice President




                                   XNH Consulting Services, INC.

                                 By:    /s/ Norton Herrick
                                        ---------------------------
                                 Name: Norton Herrick
                                 Title: President

                                 /s/ Norton Herrick
                                 ----------------------------------
                                 Norton Herrick, individually




                                                   4
21.1 SUBSIDIARIES OF THE COMPANY

                NAME                STATE OF INCORPORATION           PARENT
                ----                ----------------------           ------
       Audio Book Club, Inc.             Delaware                 MediaBay,   Inc.
       ABC-COA Acquisition Corp.         Delaware             MediaBay.com,   Inc.
       AudiobookClub.com, Inc.           Delaware                 MediaBay,   Inc.
       ABC Investment Corp., Inc.        Delaware                 MediaBay,   Inc.
       MediaBay.com, Inc.                Delaware                 MediaBay,   Inc.
       MediaBay Publishing, Inc.         Delaware                 MediaBay,   Inc.
       MediaBay Services, Inc.           Delaware                 MediaBay,   Inc.
       RadioClassics, Inc.               Delaware                 MediaBay,   Inc.
       Radio Spirits, Inc.               Delaware                 MediaBay,   Inc.
       Video Yesteryear, Inc.            Delaware            Radio Spirits,   Inc.
INDEPENDENT AUDITORS' CONSENT

We consent to the incorporation in the Annual Report Form 10-K of Media Bay, Inc. for the year ended
December 31, 2003, and by reference in Registration Statements No. 333-74413, No. 333-83937, No. 333-
39918, No. 333-45362, No. 333-48752, and No. 333-62860 on Form S-3 and in Registration Statements No.
333-83935 and No. 333-41186 on Form S-8 of Media Bay, Inc. of our report dated March 19, 2004, except
as to Note 21, which is as of April 12, 2004 (which expresses an unqualified opinion and includes a going
concern explanatory paragraph.)

                                    /s/ Amper Politziner & Mattia

                                    Edison, New Jersey
                                    April 14, 2004
INDEPENDENT AUDITORS' CONSENT

We consent to the incorporation by reference in Registration Statements No. 333-74413, No. 333-83937, No.
333-39918, No. 333-45362, No. 333-48752, and No. 333-62860 on Form S-3 and in Registration
Statements No. 333-83935 and No. 333-41186 on Form S-8 of MediaBay, Inc. of our report dated April 15,
2003 (which report expresses an unqualified opinion and includes an explanatory paragraph relating to a change
in method of accounting for goodwill and intangible assets in 2002 as described in Note 3), appearing in the
Annual Report on Form 10-K of MediaBay, Inc. for the year ended December 31, 2003.

                                         /s/ Deloitte & Touche LLP

                                         Parsippany, New Jersey
                                         April 14, 2004
EXHIBIT 31.1

                                                  CERTIFICATION

I, Jeffrey Dittus, certify that:

1. I have reviewed this Form 10-K of MediaBay, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly
present in all material respects the financial condition, results of operations and cash flows of the registrant as of,
and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and
have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in
which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred
during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual
report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over
financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal
control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of
directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and
report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role
in the registrant's internal control over financial reporting.

           Date:       April 14, 2004
                                                                            /s/ Jeffrey Dittus
                                                                            ----------------------------
                                                                                Jeffrey Dittus
                                                                                Chief Executive Officer




                                                           S-1
EXHIBIT 31.2

                                                  CERTIFICATION

I, John F. Levy, certify that:

1. I have reviewed this Form 10-K of MediaBay, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly
present in all material respects the financial condition, results of operations and cash flows of the registrant as of,
and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and
have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in
which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred
during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual
report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over
financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal
control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of
directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and
report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role
in the registrant's internal control over financial reporting.

          Date:       April 14, 2004



                                                                                  /s/ John F. Levy
                                                                                  -----------------------
                                                                                  John F. Levy
                                                                                  Chief Financial Officer
Exhibit 32.1

                      CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350
                                 AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the filing of the Annual Report of MediaBay, Inc. (the "Company") on Form 10-K for the
period ended December 31, 2003 (the "Report"), I, Jeffrey Dittus, Chief Executive Officer of the Company,
certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002, that:

1. The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of
1934; and

2. The information contained in the Report fairly presents, in all material respects, the financial condition and
results of operations of the Company.

           /s/ Jeffrey Dittus
           -----------------------
           Jeffrey Dittus
           Chief Executive Officer                                                Date: April 14, 2004




A signed original of this written statement required by Section 906 has been provided to MediaBay, Inc. and will
be retained by MediaBay, Inc. and furnished to the Securities and Exchange Commission or its staff upon
request.
Exhibit 32.2

                      CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350
                                 AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the filing of the Annual Report of MediaBay, Inc. (the "Company") on Form 10-K for the
period ended December 31, 2003 (the "Report"), I, John F. Levy, Chief Financial Officer of the Company,
certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002, that:

1. The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of
1934; and

2. The information contained in the Report fairly presents, in all material respects, the financial condition and
results of operations of the Company.

          /s/ John F. Levy
          ----------------------
          John F. Levy
          Chief Financial Officer                                                 Date:   April 14, 2003




A signed original of this written statement required by Section 906 has been provided to MediaBay, Inc. and will
be retained by MediaBay, Inc. and furnished to the Securities and Exchange Commission or its staff upon
request.