<PAGE>
As filed with the Securities and Exchange Commission on February 9, 2000
Registration No. 333-78957
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
--------------
Amendment No. 4
to
Note Exchange Offer
on
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
TVN ENTERTAINMENT CORPORATION
(Exact name of Registrant as specified in its charter)
--------------
<TABLE>
<S> <C> <C>
Delaware 4841 95-4138203
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of
incorporation or Classification Code Number) Identification Number)
organization)
</TABLE>
2901 West Alameda Avenue, Seventh Floor
Burbank, California 91505
(818) 526-5000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
--------------
Stuart Z. Levin
Chief Executive Officer
TVN Entertainment Corporation
2901 West Alameda Avenue, Seventh Floor
Burbank, California 91505
(818) 526-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Robert P. Latta, Esq.
Roger E. George, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
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If any of the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance
with General Instruction G. check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as the Securities
Exchange Commission, acting pursuant to said Section 8(a), may determine.
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<PAGE>
EXPLANATORY NOTE
This Amendment No. 4 to the Registration Statement on Form S-4 is being
filed for the sole purpose of revising Exhibits 5.1 and 23.2 to the Registration
Statement.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
Article XI of our Amended and Restated Certificate of Incorporation provides
for the indemnification of our directors to the fullest extent permissible
under Delaware law.
Article VI of our Bylaws provides for the indemnification of our officers,
directors, employees and agents if such person acted in good faith and in a
manner reasonably believed to be in and not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding the
indemnified party had no reason to believe his conduct was unlawful.
Section 145 of the Delaware General Corporation Law permits us to include in
its charter documents, and in agreements between the corporation and its
directors and officers, provisions expanding the scope of indemnification
beyond that specifically provided by the current law.
We maintain liability insurance coverage for our directors and officers.
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1* Placement Agreement dated July 24, 1998 by and between TVN and
Morgan Stanley & Co. Incorporated.
3.1* Amended and Restated Certificate of Incorporation, as amended, of
TVN, as currently in effect.
3.2* Bylaws, as currently in effect.
4.1* Securityholder Agreement dated as of August 29, 1997 among TVN,
Princes Gate Investors II, L.P., Storie Partners, L.P., Wenonah
Development Corp., Jerome H. Turk and Carole Turk. Family Trust and
PG Investors II, Inc. as Agent.
4.2* Amendment to Securityholders Agreement dated as of December 19, 1997
among TVN, Princes Gate Investors II, L.P., Storie Partners, L.P.,
Wenonah Development Corp., Jerome H. Turk and Carole Turk Family
Trust and PG Investors II, Inc. as Agent.
4.3* Indenture dated as of July 29, 1998, by and between TVN and The Bank
of New York, including form of 14% Senior Discount Note Due 2008.
4.4* Warrant Agreement dated as of July 29, 1998 between TVN and The Bank
of New York.
4.5* Warrant registration rights agreement dated as of July 29, 1998
among TVN and Morgan Stanley & Co. Incorporated.
4.6* Specimen 14% Senior Discount Note Due 2008.
4.7* Notes registration rights agreement dated as of July 29, 1998
between TVN and Morgan Stanley & Co. Incorporated.
5.1 Opinion of Irell & Manella LLP.
10.1*+ Transponder Lease Agreement for Galaxy IIIR dated as of October 21,
1994 between Hughes Communications Galaxy, Inc. and TVN.
10.2* Galaxy IIIR Transponder Service Agreement dated October 21, 1994
between Hughes Communications Satellite Services, Inc. and TVN.
10.3*+ Transponder Lease Agreement for Galaxy IX dated as of November 29,
1995 between Hughes Communications Galaxy, Inc. and TVN and First
Amendment to Galaxy IX Transponder Lease Agreement dated May 10,
1996.
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
10.4* Galaxy IX Transponder Service Agreement dated November 29, 1995
between Hughes Communications Satellite Services, Inc. and TVN.
10.5* 1996 Stock Option Plan and related option agreement, as currently in
effect.
10.6*+ Service and License Agreement dated June 9, 1997 between National
Digital Television, Inc., doing business as Headend in the Sky(R)
("HITS") and TVN.
10.7* CSG Master Subscriber Management System Agreement dated June 30, 1997
between CSG Systems, Inc. and TVN.
10.8* Employment Agreement entered into between TVN and Stuart Z. Levin.
10.9* Employment Agreement entered into between TVN and James Ramo.
10.10* Employment Agreement entered into between TVN and Arthur Fields.
10.11* Employment Agreement entered into between TVN and Michael Wex.
10.12* Employment Agreement entered into between TVN and John McWilliams.
10.14* Employment Agreement entered into between Guthy-Renker Television
Network, Inc. and Gregory A. Thomas.
10.15* Assumption of and First Amendment to Employment Agreement between
GRTV Network, Inc. and Gregory A. Thomas.
10.16* Series B Preferred Stock Purchase Agreement dated June 30, 1999, by
and between New Media Network, Inc. and TVN together with all
exhibits thereto.
10.17* Agreement for Purchase and Sale of Assets effective January 18, 1999
by and among TVN, W&K Pharmacy, Inc., d/b/a PandaAmerica Corp. and
Martin D. Weiss, together with all exhibits thereto.
10.18* Asset Acquisition Agreement by and among TVN, GRTV Network, Inc., a
wholly-owned subsidiary of TVN, Guthy-Renker Corporation, and Guthy-
Renker Television Network, Inc., dated July 30, 1999, together with
all exhibits thereto.
10.19* Organization, Uplink and Post-Production Services Agreement dated May
28, 1999 by and between 4MC-Burbank, Inc. and TVN Entertainment
Corporation.
10.20* Employment Agreement entered into between TVN and Gregory Pasetta.
21.1* Subsidiaries of TVN.
23.1* Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Irell & Manella LLP (Included in Exhibit 5.1).
24.1* Power of Attorney.
25.1* Statement of Eligibility of Trustee.
27.1* Financial Data Schedules.
99.1* Form of Letter of Transmittal with respect to exchange offer.
99.2* Form of Notice of Guaranteed Delivery.
99.3* Form of Exchange Agent Agreement.
</TABLE>
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* Previously filed.
+ Confidential treatment has been requested for portions of these agreements.
Omitted portions have been filed separately with the Commission.
(b) Financial Statement Schedules
Schedules not listed above have been omitted because the information to be
set forth therein is not applicable or is shown in the financial statements or
Notes thereto.
Item 22. Undertaking
1. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons
pursuant to the foregoing
II-2
<PAGE>
provisions, or otherwise, we have been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than our payment of expenses
incurred or paid by one of our directors, officers or controlling persons 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, 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 such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
2. We hereby undertake to respond to requests for information that is
incorporated by reference into the Prospectus pursuant to Items 4, 10(b), 11 or
13 of this Form, within one business day of receipt of such request, and to
send the incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed subsequent to the
effective date of the Registration Statement through the date of responding to
the request.
3. We hereby undertake to supply by means of a post-effective amendment all
information concerning a transaction, and the company being acquired involved
therein, that was not the subject of and included in this Registration
Statement when it became effective.
4. We hereby undertake:
(a) 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 end 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 price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(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.
(b) 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.
(c) 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.
II-3
<PAGE>
(d) If we are a foreign private issuer, to file a post-effective
amendment to the registration statement to include any financial statements
required by (S)210.3-19 of this chapter at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided that we include in the prospectus, by means of a post-
effective amendment, financial statements required pursuant to this
paragraph (d) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statement. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or (S)210.3-19 of this chapter if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission by us pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in the Form F-3.
II-4
<PAGE>
Signatures
In accordance with the requirements of the Securities Act of 1933, we have
duly caused this Amendment No. 4 to Registration Statement to be signed on our
behalf by the undersigned, thereunto duly authorized, in the City of Burbank,
State of California on February 9, 2000.
TVN Entertainment Corporation
By: /s/ Stuart Z. Levin
-----------------------------------
Stuart Z. Levin
Chairman of the Board, Chief
Executive Officer (Principal
Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 4 to Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<C> <S> <C>
/s/ Stuart Z. Levin Chairman of the Board February 9, 2000
____________________________________ of Directors and Chief
Stuart Z. Levin Executive Officer
(Principal Executive
Officer)
* Senior Executive Vice February 9, 2000
____________________________________ President, General
Arthur Fields Counsel, Chief
Administrative
Officer, Director and
Secretary
/s/ John McWilliams Senior Vice President, February 9, 2000
____________________________________ Finance (Principal
John McWilliams Financial and
Accounting Officer)
* Director February 9, 2000
____________________________________
S. Robert Levine, M.D.
* Director February 9, 2000
____________________________________
Stephen R. Munger
* Director February 9, 2000
____________________________________
Martin A. Pasetta
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<C> <S> <C>
* Director February 9, 2000
____________________________________
David R. Powers
* Director February 9, 2000
____________________________________
Michael J. Ritter
* Director February 9, 2000
____________________________________
Jerome H. Turk
</TABLE>
/s/ Stuart Z. Levin
*By:___________________________
(Stuart Z. Levin)
ATTORNEY-IN-FACT
II-6
<PAGE>
Exhibit Index
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1* Placement Agreement dated July 24, 1998 by and between TVN and
Morgan Stanley & Co. Incorporated.
3.1* Amended and Restated Certificate of Incorporation, as amended, of
TVN, as currently in effect.
3.2* Bylaws, as currently in effect.
4.1* Securityholder Agreement dated as of August 29, 1997 among TVN,
Princes Gate Investors II, L.P., Storie Partners, L.P., Wenonah
Development Corp., Jerome H. Turk and Carole Turk. Family Trust and
PG Investors II, Inc. as Agent.
4.2* Amendment to Securityholders Agreement dated as of December 19, 1997
among TVN, Princes Gate Investors II, L.P., Storie Partners, L.P.,
Wenonah Development Corp., Jerome H. Turk and Carole Turk Family
Trust and PG Investors II, Inc. as Agent.
4.3* Indenture dated as of July 29, 1998, by and between TVN and The Bank
of New York, including form of 14% Senior Discount Note Due 2008.
4.4* Warrant Agreement dated as of July 29, 1998 between TVN and The Bank
of New York.
4.5* Warrant registration rights agreement dated as of July 29, 1998
among TVN and Morgan Stanley & Co. Incorporated.
4.6* Specimen 14% Senior Discount Note Due 2008.
4.7* Notes registration rights agreement dated as of July 29, 1998
between TVN and Morgan Stanley & Co. Incorporated.
5.1 Opinion of Irell & Manella LLP.
10.1*+ Transponder Lease Agreement for Galaxy IIIR dated as of October 21,
1994 between Hughes Communications Galaxy, Inc. and TVN.
10.2* Galaxy IIIR Transponder Service Agreement dated October 21, 1994
between Hughes Communications Satellite Services, Inc. and TVN.
10.3*+ Transponder Lease Agreement for Galaxy IX dated as of November 29,
1995 between Hughes Communications Galaxy, Inc. and TVN and First
Amendment to Galaxy IX Transponder Lease Agreement dated May 10,
1996.
10.4* Galaxy IX Transponder Service Agreement dated November 29, 1995
between Hughes Communications Satellite Services, Inc. and TVN.
10.5* 1996 Stock Option Plan and related option agreement, as currently in
effect.
10.6*+ Service and License Agreement dated June 9, 1997 between National
Digital Television, Inc., doing business as Headend in the Sky(R)
("HITS") and TVN.
10.7* CSG Master Subscriber Management System Agreement dated June 30,
1997 between CSG Systems, Inc. and TVN.
10.8* Employment Agreement entered into between TVN and Stuart Z. Levin.
10.9* Employment Agreement entered into between TVN and James Ramo.
10.10* Employment Agreement entered into between TVN and Arthur Fields.
10.11* Employment Agreement entered into between TVN and Michael Wex.
10.12* Employment Agreement entered into between TVN and John McWilliams.
10.14* Employment Agreement entered into between Guthy-Renker Television
Network, Inc. and Gregory A. Thomas.
10.15* Assumption of and First Amendment to Employment Agreement between
GRTV Network, Inc. and Gregory A. Thomas.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
10.16* Series B Preferred Stock Purchase Agreement dated June 30, 1999, by
and between New Media Network, Inc. and TVN together with all
exhibits thereto.
10.17* Agreement for Purchase and Sale of Assets effective January 18, 1999
by and among TVN, W&K Pharmacy, Inc., d/b/a PandaAmerica Corp. and
Martin D. Weiss, together with all exhibits thereto.
10.18* Asset Acquisition Agreement by and among TVN, GRTV Network, Inc., a
wholly-owned subsidiary of TVN, Guthy-Renker Corporation, and Guthy-
Renker Television Network, Inc., dated July 30, 1999, together with
all exhibits thereto.
10.19* Organization, Uplink and Post-Production Services Agreement dated
May 28, 1999 by and between 4MC-Burbank, Inc. and TVN Entertainment
Corporation.
10.20* Employment Agreement entered into between TVN and Gregory Pasetta.
21.1* Subsidiaries of TVN.
23.1* Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Irell & Manella LLP (Included in Exhibit 5.1).
24.1* Power of Attorney.
25.1* Statement of Eligibility of Trustee.
27.1* Financial Data Schedules.
99.1* Form of Letter of Transmittal with respect to exchange offer.
99.2* Form of Notice of Guaranteed Delivery.
99.3* Form of Exchange Agent Agreement.
</TABLE>
- --------
* Previously filed.
+ Confidential treatment has been requested for portions of these agreements.
Omitted portions have been filed separately with the Commission.
<PAGE>
EXHIBIT 5.1
[IRELL & MANELLA LLP LETTERHEAD]
February 9, 2000
TVN Entertainment Corporation
2901 Alameda Avenue
Seventh Floor
Burbank, California 91505
Re: New 14% Senior Notes Due 2008
Covered by Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as bond counsel to TVN Entertainment Corporation, a Delaware
corporation (the "Company"), in connection with the filing by the Company with
the Securities and Exchange Commission (the "Commission") of a registration
statement on Form S-4 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"). The Registration Statement relates to
the proposed issuance by the Company of $200 million in aggregate principal
amount of its 14% Senior Notes due 2008 (the "New Notes") in connection with the
proposed exchange of $1,000 principal amount of the New Notes for each $1,000
principal amount of its outstanding 14% Senior Notes due 2008 (the "Old Notes").
The Old Notes are, and the New Notes will upon issuance be, covered by that
certain indenture dated July 29, 1998 (the "Indenture") by and between the
Company and The Bank of New York, as trustee (the "Trustee"). This opinion
letter is delivered in accordance with the requirements of Item 601(b)(5) of
Regulation S-K under the Securities Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of: (i) the Registration
Statement, in the form filed with the Commission; (ii) the charter documents of
the Company, as currently in effect; (iii) the Indenture; (iv) the form of the
New Notes; and (v) resolutions of the Board of Directors of the Company relating
to, among other things, the issuance and exchange of the New Notes for the Old
Notes and the filing of the Registration Statement. We also have examined such
other documents as we have deemed necessary or appropriate as a basis for the
opinions set forth below.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents. As to certain facts
material to this opinion, we have relied without independent verification upon
oral or written statements and factual representations of officers and other
representatives of the Company and others.
<PAGE>
TVN Entertainment Corporation
February 9, 2000
Page 2
Based upon the foregoing, and subject to the assumptions and limitations
set forth herein, we are of the opinion that, when (i) the Registration
Statement, as finally amended (including all necessary post-effective
amendments, if any), shall have become effective under the Securities Act and
(ii) the New Notes are duly executed, attested, issued and delivered by duly
authorized officers of the Company, and authenticated by the Trustee, all in
accordance with the terms of the Indenture and the prospectus contained in the
Registration Statement, against surrender and cancellation of a like principal
amount of Old Notes, the New Notes issued by the Company will be legally issued,
and the New Notes will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent conveyance and other laws
relating to or affecting creditors' rights generally and (ii) general principles
of equity, whether such enforcement is considered in a proceeding in equity or
at law.
We observe that the Indenture and the New Notes purport to be governed by
the laws of the State of New York, without regard to the principles of conflicts
thereof, and our opinion is accordingly limited to such laws.
We have relied on the Form T-1 and the certificates delivered by the
Trustee as to the qualifications, authority, legal power and eligibility of the
Trustee to act as trustee under the Indenture and to perform in accordance with
the terms of the Indenture its duties thereunder.
This opinion is given in respect of the Indenture and the New Notes only,
and we express no opinion as to the legality, validity or binding effect of any
related document, instrument or agreement or any other matter beyond the matters
expressly set forth herein. This opinion speaks only as of the date hereof.
This opinion is intended to be filed as an exhibit to the Registration
Statement for the benefit of the investors acquiring the New Notes to be issued
pursuant thereto and may not be otherwise used or relied upon and may not be
otherwise disclosed, quoted, filed with a governmental agency or otherwise
referred to without our prior written consent. However, we consent to the use
of our name under the caption "Legal Matters" in the Registration Statement and
prospectus and any amendments thereto. In giving such consent, we do not admit
that we are experts within the meaning of the Securities Act or the rules and
regulations thereunder or that this consent is required by Section 7 of the
Securities Act.
Very truly yours,
/s/ Irell & Manella LLP
IRELL & MANELLA LLP
MSJ/JCK/KI
