EXHIBIT 10.1


                      NON-QUALIFIED STOCK OPTION AGREEMENT

                                 MEDIABAY, INC.



      AGREEMENT  made as of this  xxxxxxxxx xx, 20__ (the "Grant Date")  between
MediaBay, Inc. (the "Company"), a Florida corporation,  having a principal place
of business in Cedar Knolls, New Jersey, and _________ (the "Grantee")  residing
_____________________.

      WHEREAS, the Company desires to grant to the Grantee a Non-Qualified Stock
Option  to  purchase  xxx,xxx  shares of its  common  stock,  no par value  (the
"Shares"),  under and for the purposes of the 2004 Stock  Incentive  Plan of the
Company (the "Plan"), pursuant to the terms thereof;

      WHEREAS,  the  Company and the  Grantee  understand  and agree that unless
otherwise  defined herein any terms used herein have the same meanings as in the
Plan.

      NOW, THEREFORE,  in consideration of the mutual covenants  hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:

      1. Grant of Option. The Company hereby grants to the Grantee the right and
option (the  "Option")  to purchase  all or any part of an  aggregate of xxx,xxx
shares of its  common  stock,  no par  value,  on the terms and  conditions  and
subject  to all the  limitations  set forth  herein  and in the  Plan,  which is
incorporated herein by reference.  The Grantee acknowledges receipt of a copy of
the Plan.


                                      -1-
<PAGE>

      2. Purchase Price. The purchase price of the xxx,xxx of the Shares covered
by the Option shall be $xx.xx per share.

      3. Exercise of Option.  The Option granted  hereby shall vest  immediately
and be  exercisable  on the following  dates:

      o     as to forty percent (40%) of the Shares covered thereby on the date
            hereof;

      o     as to twenty percent (20%) of the Shares covered thereby on xx, 20__
            [one year from the date hereof];

      o     as to twenty percent (20%) of the Shares covered thereby on xx, 20__
            [two years from the date hereof]; and

      o     as to twenty percent (20%) of the Shares covered thereby on xx, 20__
            [three years from the date hereof].

      4. Term of Option.  The Option shall  terminate on ten (10) years from the
date  hereof  (i.e.,  xxxxxxxxx,  xx,  20__),  but shall be  subject  to earlier
termination as provided herein or in the Plan.

      If the Grantee  ceases to perform  services as an employee for the Company
for any reason  other than  death,  disability,  termination  of  services as an
employee  for  "Cause"  (as  defined in the Plan) or  voluntary  termination  of
services  as a employee,  the Option may be  exercised  within  ninety (90) days
after the date the  Grantee  ceases to provide  services  as an  employee to the
Company,  or within Ten (10) years from the date  hereof,  whichever is earlier,
but may not be  exercised  thereafter.  In  such  event,  the  Option  shall  be
exercisable  only to the extent that the right to purchase Shares under the Plan
has  accrued  and is in effect at the date of such  cessation  of services as an
employee.

      In the event the Grantee's  services as an employee are  terminated by the
Company for "Cause" (as defined in the Plan), or voluntarily by the Grantee, the
Grantee's right to exercise any  unexercised  portion of this Option shall cease
forthwith, and this Option shall thereupon terminate.


                                      -2-
<PAGE>

      In the event of Disability  of the Grantee (as  determined by the Board of
Directors  of the  Company  and as to the fact and date of which the  Grantee is
notified by the Board in writing),  the Option shall be  exercisable  within one
(1) year after the date of such Disability or, if earlier, within the originally
prescribed term of the Option. In such event, the Option shall be exercisable to
the extent that the right to purchase  the Shares  hereunder  has accrued on the
date the  Grantee  becomes  Disabled  and is in effect as of such  determination
date.

      In the event of the death of the Grantee while  performing  services as an
employee to the  Company or within  thirty  (30) days after the  termination  of
services as an employee (other than  termination for cause or without consent of
the Company),  the Option shall be exercisable to the extent exercisable but not
exercised  as of the  date  of  death  and in such  event,  the  Option  must be
exercised,  if at all,  within  three (3) months  after the date of death of the
Grantee or, if earlier, within the originally prescribed term of the Option.

      5. Non-Assignability.  The Option shall not be transferable by the Grantee
otherwise than by will or by the laws of descent and  distribution  and shall be
exercisable,  during the  Grantee's  lifetime,  only by the Grantee.  The Option
shall not be assigned,  pledged or hypothecated in any way (whether by operation
of law or  otherwise)  and shall not be  subject  to  execution,  attachment  or
similar process. Any attempted transfer,  assignment,  pledge,  hypothecation or
other disposition of the Option or of any rights granted  hereunder  contrary to
the  provisions  of this  Section  5, or the levy of any  attachment  or similar
process upon the Option or such right, shall be null and void.


                                      -3-
<PAGE>

      6. Exercise of Option and Issue of Shares.  The Option may be exercised in
whole or in part (to the extent that it is  exercisable  in accordance  with its
terms) by giving written notice to the Company,  together with the tender of the
Option price.  Such written notice shall be signed by the person  exercising the
Option,  shall  state the number of Shares  with  respect to which the Option is
being  exercised,  shall  contain any  warranty  required by Section 7 below and
shall  otherwise  comply with the terms and conditions of this Agreement and the
Plan. Except as specifically set forth herein, the holder  acknowledges that any
income or other  taxes due from him with  respect  to this  Option or the Shares
issuable pursuant to this Option shall be the  responsibility of the holder. The
holder of this Option  shall have rights as a  shareholder  only with respect to
any Shares  covered by the Option after due exercise of the Option and tender of
the  full  exercise  price  for the  Shares  being  purchased  pursuant  to such
exercise.

      7. Purchase for Investment;  Restrictions on Transfer. Unless the offering
and sale of the Shares to be issued upon the  particular  exercise of the Option
shall have been effectively  registered under the Securities Act of 1933, as now
in force or hereafter  amended,  or any successor  legislation (the "Act"),  the
Company  shall be under  no  obligation  to issue  the  Shares  covered  by such
exercise unless and until the following conditions have been fulfilled:

      (a) The person(s) who exercise the Option shall warrant to the Company, at
the time of such exercise, that such person(s) are acquiring such Shares for his
or her own  account,  for  investment  and not  with a view  to,  or for sale in
connection  with,  the  distribution  of any such  Shares,  in which  event  the
person(s)  acquiring  such  Shares  shall  be  bound  by the  provisions  of the
following  legend  which shall be endorsed  upon the  certificate(s)  evidencing
their option Shares issued pursuant to such exercise:


                                      -4-
<PAGE>

            "The shares represented by this certificate have not been registered
            under the  Securities  Act of 1933,  as amended  (the  "Act").  Such
            shares may not be sold,  transferred or otherwise disposed of unless
            they have first been  registered  under the Act or,  unless,  in the
            opinion of  counsel  satisfactory  to the  Company's  counsel,  such
            registration is not required."

            (b) The Company  shall have  received an opinion of its counsel that
the Shares may be issued upon such  particular  exercise in compliance  with the
Act without  registration  thereunder.  Without  limiting the  generality of the
foregoing,  the Company may delay issuance of the Shares until completion of any
action or obtaining of any consent,  which the Company deems necessary under any
applicable  law (including  without  limitation  state  securities or "blue sky"
laws).

            (c) The Grantee agrees that in the event of a public offering of the
Company's securities, the Grantee will not sell, contract to sell, sell or grant
any  option,  right,  warrant  or option to  purchase,  purchase  any  option or
contract to sell, pledge, hypothecate or otherwise transfer or dispose of (each,
a "Transfer")  any of the Shares during the Lock-Up  Period (as defined  below).
The  "Lock-Up  Period"  means  the  period  commencing  on  the  date  that  the
registration statement relating to an underwritten public offering is filed with
the Securities and Exchange Commission (the "SEC") and ending on the date agreed
to by the  Underwriter  of such  offering  and the Company  with  respect to the
Shares, but in no event later than 120 days following the date such registration
statement is declared  effective by the SEC. The Grantee  acknowledges that upon
exercise of this Option,  the Company will instruct its transfer  agent to place
an appropriate  legend on the certificate  representing the Shares.  The Grantee
agrees to execute a lock-up  agreement as aforesaid  with the Company and/or any
such underwriter, if requested.


                                      -5-
<PAGE>

      8.  Notices.  Any  notices  required  or  permitted  by the  terms of this
Agreement or the Plan shall be given by  registered  or certified  mail,  return
receipt requested, addressed as follows:

                  To the Company:   MediaBay, Inc.
                                    2 Ridgedale Avenue
                                    Cedar Knolls, New Jersey 07927

                  To the Grantee:   {Grantee}
                                    {Grantee Address}
                                    {Grantee City, State  zip}

or to such other  address or  addresses  of which  notice in the same manner has
previously  been given.  Any such notice shall be deemed to have been given when
mailed in  accordance  with the  foregoing  provisions.  Either party hereto may
change the address of which  notices shall be given by providing the other party
hereto with written notice of such change.

      9.  Governing  Law.  This  Agreement  shall be  construed  and enforced in
accordance with the law of the State of Florida.

      10. Benefit of Agreement.  This Agreement  shall be for the benefit of and
shall be binding upon the heirs, executors, administrators and successors of the
parties hereto.

      IN WITNESS  WHEREOF,  the Company has caused this Agreement to be executed
by its duly authorized  officer,  and the Grantee has hereunto set his hand, all
as of the day and year first above written.

                                                     MEDIABAY, INC.


                                                     By:________________________
                                                     Name:______________________
                                                     Title:_____________________

                                                     ___________________________
                                                     {Name}, Grantee


                                      -6-