EXHIBIT 10.4
                              EMPLOYMENT AGREEMENT

THIS AGREEMENT entered into as of the 10th day of November, 2001, by and between
MediaBay, Inc., a Florida corporation, with offices at 2 Ridgedale Avenue, Suite
300, Cedar Knolls, New Jersey 07927 (the "Company"),  and John F. Levy, residing
at 110 Oak Tree Pass, Westfield, New Jersey (the "Executive").

                              W I T N E S S E T H:

     WHEREAS,  the  Company is engaged in the spoken  audio  business  including
audiobooks, old-time radio shows and downloadable spoken audio products; and

     WHEREAS, the Company desires to continue to employ the Executive beyond the
expiration date of the current Employment  Agreement between the Company and the
Executive; and

     WHEREAS,  the  Executive is willing to commit  himself to continue to serve
and to establish a minimum  period  during  which he will  continue to serve the
Company on the terms and conditions herein provided.

     NOW,  THEREFORE,  in  consideration  of the  premises  and  the  respective
covenants  and  agreements of the parties  herein  contained and intending to be
legally bound hereby, the parties agree as follows:

     1. Recitals.  The Whereas clauses recited above are hereby  incorporated by
reference as though they were fully set forth herein.

     2.  Employment.  The Company  shall employ the  Executive and the Executive
shall serve the Company, on the terms and conditions set forth herein.

     3. Term.  The  employment  of the  Executive  by the Company as provided in
paragraph  2 shall  commence on  November  10, 2001 and end on the second  (2nd)
anniversary of such  commencement,  subject,  however,  to the other termination
provisions contained herein.

     4. Position and Duties.  The Executive  shall be employed by the Company as
an Executive Vice President and Chief Financial Officer. His power and authority
shall be and  remain  subject  to the  direction  and  control  of the  Board of
Directors and all officers  senior to him including but not limited to the Chief
Executive Officer,  Michael Herrick and Chairman,  Norton Herrick. The Executive
shall have  responsibility  for the  financial  oversight  of the  business  and
affairs of the Company,  including  without  limitation  responsibility  for all
filings with the  Securities  and  Exchange  Commission,  the  Internal  Revenue
Service and all other agencies (federal,  state or local) and/or stock exchanges
to which the Company must


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report, subject to appropriate review and approval of the Board of Directors and
senior officers and such further revisions as the Executive deems necessary. The
scope  of  his  duties  and  the  extent  of  his   responsibilities   shall  be
substantially  the  same as the  duties  and  responsibilities  of  other  chief
financial officers of public companies. The Executive shall be required to spend
his full time and attention,  without other outside business  interests,  in the
performance of his duties and the Company's business and affairs.

     5. Compensation and Related Matters.

          (a) Salary.  During the term of this Agreement,  the Company shall pay
     to the Executive,  as  compensation  for his services,  an annual salary of
     $180,000 in  bi-monthly  installments  during the first year of the term of
     this  Agreement;  and  $190,000  during the second year of the term of this
     Agreement. In addition, the Executive may receive a performance-based bonus
     to be  determined by the Chief  Executive  Officer in his sole and absolute
     discretion  with a  minimum  bonus  at the end of year  one,  provided  the
     Executive is still  employed by the Company at that time,  of  Twenty-Seven
     Thousand and 00/100 U.S.  Dollars  ($27,000.00)  and a minimum bonus at the
     end of year two, provided the Executive is still employed by the Company at
     that time, of Thirty Thousand and 00/100 U.S.  Dollars  ($30,000.00);  such
     bonuses  shall be paid  within  forty-five  (45) days after the end of each
     year.

          (b) Expenses. The Executive shall receive prompt reimbursement for all
     reasonable  travel  and  business  expenses  in  connection  with  services
     performed  hereunder in accordance with normal Company policy,  as the same
     may be determined from time to time.

          (c)  Insurance  and Employee  Benefits.  The  Executive  shall receive
     employee  benefits  applicable  to all  officers of the Company  except the
     executive will not receive medical  insurance  unless his wife is no longer
     employed at a position which provides  family  coverage.  In addition,  the
     Executive  shall be reimbursed for reasonable  costs  associated with up to
     twenty-four  (24) hours of  continuing  education  courses  with respect to
     topics germane to his duties,  including  reasonable  local travel costs to
     attend such courses and reasonable fees for such courses. In addition,  the
     Company will  reimburse  the  Executive for his dues to the AICPA and ISCPA
     and the Executive can continue to use during the Term the portable computer
     and cellular phone already provided to him by the Company.

          (d) Vacation.  The Executive  shall receive,  prorata during each full
     year of his  employment,  three (3) weeks paid  vacation  approved  one (1)
     month in advance.  The  Executive  will make every  effort to schedule  the
     vacation time at a time most  convenient for the Company,  with the Company
     recognizing   that  the  Executive's   flexibility  is  limited  by  school
     calendars.  Notwithstanding  the  foregoing,  the  Executive  shall  not be
     entitled to vacation  during the three (3) week period prior to the date on
     which  the  Company's  Annual  Report  on Form  10-KSB  (or  Form  10-K) or
     Quarterly  Report on Form  10-QSB (or Form 10-Q) are  required  to be filed
     with the Securities  and Exchange  Commission.  In addition,  the Executive
     will  receive  normal  Company  holidays,  plus  two (2)  days off for Rosh
     Hashanah and one (1) day off for Yom Kippur unless such holy days fall on a
     weekend.


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          (e) Stock  Options.  The Executive is hereby  granted stock options to
     acquire  Fifty  Thousand  (50,000)  shares of Common  Stock in the  Company
     pursuant to and in accordance with the Company's Stock Option Plan. Options
     with respect to Seventeen Thousand (17,000) shares shall vest on January 2,
     2002 at a price per share equal to One Dollar ($1.00); options with respect
     to Seventeen  Thousand  (17,000) shares will vest on November 10, 2002 at a
     price per share equal to One Dollar Fifty Cents ($1.50),  provided that the
     Executive  is still  employed by the Company at that time and options  with
     respect to Sixteen Thousand  (16,000) shares will vest on November 10, 2003
     at a price  per  share  equal to Two  Dollars  ($2.00),  provided  that the
     Executive is still employed by the Company at that time.  Such options will
     be on the terms and  conditions  as more  specifically  provided for in the
     Company's Stock Option Plan.

     6. Termination by the Company. The Executive's  employment hereunder may be
terminated by the Company  without any breach of this  Agreement  only under the
circumstances described below.

          (a) Death. The Executive's  employment  hereunder shall terminate upon
     his death.

          (b) Disability.  If, as a result of the Executive's  incapacity due to
     physical or mental illness, as determined by a physician mutually chosen by
     the  Executive and the Company,  the Executive  shall have been absent from
     his duties  hereunder for a consecutive  period of forty-five (45) days and
     after  notice of  termination  is given (which may be given before or after
     the end of such 45 day  period  but  which  will in no event  be  effective
     until,  at the  earliest,  the day  following  the  forty-fifth  day of the
     period) shall not have returned to the performance of his duties hereunder,
     as that concept is  contemplated  in this  Agreement,  within ten (10) days
     after the notice of  termination  is given,  the Company may  terminate the
     Executive's employment hereunder.

          (c) Cause. The Company may terminate the Executive's  employment under
     this Agreement at any time for cause.  For purposes of this Agreement,  the
     term  "cause"  shall  include  one or more of the  following:  (i)  willful
     misconduct,  (ii) continued failure by the Executive to perform his duties,
     as contemplated in this Agreement,  as Chief Financial  Officer (other than
     through disability as defined in paragraph 6(b),  above),  (iii) conviction
     of a crime or alcohol or drug abuse, or (iv) the Executive's breach of this
     Agreement.  The termination shall be evidenced by written notice thereof to
     the Executive.

          (d) Without Cause.  In addition to any other rights the Company has to
     terminate the Executive's employment under this Agreement, the Company may,
     at any  time,  by a vote  of not  less  than  sixty  percent  (60%)  of the
     directors then in office (excluding the vote of the Executive if he is also
     a


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     director),  terminate  the  Executive  without cause upon ninety (90) days'
     prior written  notice to the Executive  setting forth the reasons,  if any,
     for the  termination.  For purposes of this  Agreement,  the term  "without
     cause"  shall mean  termination  by the Company on any  grounds  other than
     those set forth in paragraphs  6(a), (b) or (c) hereof.  It shall also be a
     termination  without  cause,  at  the  election  of the  Executive,  if the
     Executive is asked to work at a business  location of the Company  which is
     more than fifty (50) miles from Westfield, New Jersey.  Notwithstanding the
     foregoing,  it is understood that travel in connection with the performance
     of Executive's duties shall not be deemed to be termination without cause.

          (e) Severance  Pay. In the event that the Company has  terminated  the
     Executive's  employment under this Agreement (i) "without cause" or (ii) in
     the event  there is a "Change of  Control"  (as  defined  below),  then the
     Executive will be entitled to receive severance pay of One Hundred Thousand
     Dollars  ($100,000)  paid in twelve equal payments of $8,333.33  commencing
     thirty (30) days from such termination of the Executive's employment.

          (f) Change of Control.  For purposes of this  Agreement,  a "Change of
     Control"  shall be deemed  to  occur,  unless  previously  consented  to in
     writing  by the  Executive,  and  only  if  the  Executive  is not  offered
     continued  employment,  upon (i) the actual  acquisition  of fifty  percent
     (50%) or more of the voting  securities  of the  Company by any  company or
     entity or affiliated group of companies or entities (other than pursuant to
     a bona fide  underwriting  agreement  relating to a public  distribution of
     securities  of the  Company),  (ii) the  completion of a tender or exchange
     offer for more than fifty  percent  (50%) of the voting  securities  of the
     Company  by any  company  or entity or  affiliated  group of  companies  or
     entities not affiliated with the Executive, (iii) the completion of a proxy
     contest  against the management for the election of a majority of the Board
     of Directors of the Company if the group conducting the proxy contest owns,
     has or gains the power to vote at least fifty  percent  (50%) of the voting
     securities of the Company,  or (iv) a merger or  consolidation in which the
     Company is not the surviving  entity or a sale of or  substantially  all of
     the assets of the Company.

          (g) Change of Control Compensation.  In the event of a completion of a
     tender or exchange  offer for more than fifty  percent  (50%) of the voting
     securities of the Company by any company or entity or  affiliated  group of
     companies or entities not affiliated with the Executive, the stock options,
     described in paragraph  5(e),  shall  immediately  be  exercisable  and any
     unvested shall immediately vest.

          (h) The Executive  shall not be required to mitigate the amount of any
     payment  provided for in this  paragraph 6 by seeking  other  employment or
     otherwise  nor  shall  the  amount  of any  payment  provided  for in  this
     paragraph 6 be reduced by any  compensation  earned by the Executive as the
     result of employment by another  employer or business or by profits  earned
     by the  Executive  from any other  source at any time  before and after the
     date of  termination.  The  amounts  payable  to the  Executive  under this


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     Agreement  shall not be treated as damages,  but as severance  pay to which
     the Executive is entitled by reason of his employment and the circumstances
     contemplated by this Agreement.

          (i) The severance pay which the Executive  will be entitled to receive
     as a result of the  termination  of his  employment  under this  Agreement,
     shall be the Executive's exclusive remedy in the event of such termination.

     7.  Non-Competition  and  Confidentiality  Covenant.  The Executive  hereby
covenants  and agrees  that he will not serve as an  officer  of or perform  any
functions for any other  company  during the term of his  employment  under this
Agreement,  except that the  Executive  shall be  permitted  to serve as a board
member of the Israel  Histradrut  Group  Foundation,  a  not-for-profit  entity,
provided  serving as a board member for such entity does not interfere  with the
performance of the Executive's duties under this Agreement. In addition,  during
the  term of  this  Agreement  and for a  period  of two (2)  years  immediately
following  the  termination  of his  employment,  whether  said  termination  is
occasioned by the Company,  the Executive or a mutual  agreement of the parties,
the Executive shall not, for himself or on behalf of any other person,  persons,
firm,  partnership,  corporation  or  company,  engage  or  participate  in  any
activities  which are in direct or indirect  conflict  with the interests of the
Company  or solicit or attempt to  solicit  the  business  or  patronage  of any
person, firm, corporation,  company or partnership,  which had previously been a
customer  of the  Company,  for the  purpose of selling  products  and  services
similar to those provided by the Company.

     Furthermore, the Executive acknowledges and agrees that: all mailing lists;
customer,  member and prospect  names;  license or  arrangement;  front-end  and
back-end marketing performance; financial statements; operating system, database
and other computer software,  specific to the Company; and all information which
is known by the  Executive  to be  subject  to a  confidentiality  agreement  or
obligation of confidentiality,  even without a confidentiality agreement between
the Company and another person or party, shall be maintained by the Executive in
a confidential  manner and the Executive  agrees that the Executive will not use
such information to the detriment of the Company or disclose such information to
any third  party,  except as may be necessary  in the course of  performing  the
Executive's  job  responsibilities.  The  Executive  further  agrees  that these
obligations of  confidentiality  with respect to such information shall continue
after the  Executive  ceases to be employed by the  Company.  Disclosure  of the
aforementioned  information  shall  not be  prohibited  if  such  disclosure  is
directly pursuant to a valid and existing order of a court or other governmental
body or  agency  within  the  United  States;  provided,  however,  that (i) the
Executive  shall  first  have  given  prompt  notice to the  Company of any such
possible or prospective  order (or  proceeding  pursuant to which any such order
may result), (ii) the Company shall have been afforded a reasonable  opportunity
to review such disclosure and to prevent or limit any such disclosure, and (iii)
the Executive  shall,  if requested by the Company and at the Company's cost and


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expense,  use his best efforts to prevent or limit any such  disclosure by means
of a protective order or a request for confidential treatment.

     The Executive further acknowledges that the Executive will not disclose any
information  with respect to the  Company,  its  operations  or its officers and
directors,  whether or not such information is confidential,  to Stephen Swid or
any entity or company in which  Stephen Swid has an  ownership  interest or is a
director,  officer  or  employee  or to any  attorneys,  accountants,  agents or
representatives  of  Stephen  Swid  or any of the  aforementioned  companies  or
entities.

     8.  Indemnification.  To the maximum extent  permitted  under the corporate
laws  of  the  State  of  Florida  or,  if  more  favorable,   the  Articles  of
Incorporation  and/or  By-Laws  of the  Company as in effect on the date of this
Agreement,  (a) the  Executive  shall be  indemnified  and held  harmless by the
Company, as provided under such corporate laws or such Articles of Incorporation
and/or  By-Laws,  as  applicable,  for any  and all  actions  taken  or  matters
undertaken,  directly  or  indirectly,  in the  performance  of his  duties  and
responsibilities  under this  Agreement  or  otherwise on behalf of the Company,
provided the  Executive  did not act wantonly or  recklessly  or was not grossly
negligent or engaged in willful misconduct, and (b) without limiting clause (a),
the Company shall indemnify and hold harmless the Executive from and against (i)
any claim, loss,  liability,  obligation,  damage, cost, expense,  action, suit,
proceeding or cause of action (collectively, "Claims") arising from or out of or
relating to the Executive's acting as an officer, director, employee or agent of
the  Company  or any of its  affiliates  or in any  other  capacity,  including,
without limitation, any fiduciary capacity, in which the Executive serves at the
request  of the  Company,  and  (ii)  any cost or  expense  (including,  without
limitation,  fees  and  disbursements  of  counsel)  (collectively,  "Expenses")
incurred  by the  Executive  in  connection  with the  defense or  investigation
thereof.  If any Claim is asserted or other matter  arises with respect to which
the   Executive   believes   in  good  faith  the   Executive   is  entitled  to
indemnification as contemplated  hereby, the Company shall, at its election,  to
be determined in its sole and absolute discretion,  either assume the defense or
investigation  of such  Claim or  matter  or pay the  Expenses  incurred  by the
Executive  in  connection  with the  defense or  investigation  of such Claim or
matter,  provided  that the  Executive  shall  reimburse  the  Company  for such
amounts,  plus  simple  interest  thereon at the then  current  Prime Rate as in
effect from time to time,  compounded annually, if the Executive shall be found,
as finally judicially  determined by a court of competent  jurisdiction,  not to
have been entitled to indemnification hereunder.

     9.  Binding  Agreement.  This  Agreement  and all  rights of the  Executive
hereunder  shall inure to the benefit of and be enforceable  by the  Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees,  divisees  and  legatees.  In  addition,  this  Agreement  and the


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obligations and rights of the Company  hereunder shall be binding on any person,
firm or corporation which is a successor-in-interest to the Company.

     10. Notice.  For the purpose of this  Agreement,  notices,  demands and all
other  communications  provided  for in this  Agreement  shall be in writing and
shall be deemed to have been duly given when delivered personally, or by private
overnight  courier  or  mail  service,  postage  prepaid  or  (unless  otherwise
specified)  mailed by United States registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:

If to the Executive:     To the address at the head of this Agreement

If to the Company:       MediaBay, Inc.
                         2 Ridgedale Avenue, Suite 300
                         Cedar Knolls, New Jersey 07927


or to such other  address as the  parties  may furnish to each other in writing.
Copies of all  notices,  demands  and  communications  shall be sent to the home
addresses of all members of the Board of Directors of the Company.

     11. Miscellaneous.

          (a) No  provision  of  this  Agreement  may  be  modified,  waived  or
     discharged  unless such waiver,  modification  or discharge is agreed to in
     writing  signed  by  the  parties  hereto,  provided,  however,  that  this
     Agreement  may be modified,  waived or  discharged  by mutual  agreement in
     writing.

          (b) No delay,  waiver,  omission or forbearance (whether by conduct or
     otherwise)  by any party hereto at any time to exercise any right,  option,
     duty or power arising out of breach or default by the other party of any of
     the terms,  conditions or  provisions of this  Agreement to be performed by
     such other  party  shall  constitute  a waiver by such party or a waiver of
     such  party's  rights to enforce any right,  option or power as against the
     other party or as to subsequent  breach or default by such other party, and
     no  explicit  waiver  shall  constitute  a waiver of similar or  dissimilar
     terms,  provisions  or  conditions  at the  same  time or at any  prior  or
     subsequent time.

     12. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Florida  and any action  brought by either  party  shall be
commenced in the courts of the State of Florida.  The  Executive and the Company
hereby  irrevocably  and  unconditionally  consent  to submit  to the  exclusive
jurisdiction  of the  courts of the State of Florida  and the  United  States of
America located in Palm Beach


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County,  Florida for any and all actions, suits or proceedings arising out of or
resulting from or relating to this Agreement and the  transactions  contemplated
hereby and the parties  agree not to commence  any  action,  suit or  proceeding
relating  thereto  except in such courts.  The parties  hereby  irrevocably  and
unconditionally  waive any  objection to the laying of venue of any such action,
suit or proceeding  arising out of, resulting from or relating to this Agreement
or the  transactions  contemplated  hereby in such  courts  and  hereby  further
irrevocably  and  unconditionally  waive  and agree not to plead or claim in any
such court that such action,  suit or  proceeding  brought in any such court has
been brought in an inconvenient forum.

     13.  Validity.  The  invalidity  or  unenforceability  of any  provision or
provisions of this Agreement shall not affect the validity or  enforceability of
any other  provision  of this  Agreement,  which shall  remain in full force and
effect.

     14.   Counterparts.   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.

     15. Entire Agreement.  This Agreement contains the entire  understanding of
the Company and the  Executive  with respect to his  employment  by the Company.
This  Agreement  supersedes  all prior  agreements  and  understandings  whether
written  or oral  between  the  Executive  and the  Company,  and  there  are no
restrictions,  agreements,  promises,  warranties or covenants  other than those
stated in this Agreement.

     IN WITNESS  WHEREOF,  the parties have executed this  Agreement on the date
shown below effective as of the date first written above.

                                        "COMPANY"

Date Signed:_________________, 2002     MEDIABAY, INC., a Florida corporation

                                        By:
                                           -------------------------------------
                                        Printed Name:
                                                     ---------------------------
                                        Title:
                                              ----------------------------------


                                        "EXECUTIVE"

Date Signed:_________________, 2001
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                                        Printed Name:
                                                     ---------------------------