FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Netflix, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 77-0467272
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(State of incorporation or organization) (IRS Employer Identification No.)
970 University Avenue, Los Gatos, California 95032
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(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
None
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If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [_]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form relates (if
applicable): 333-83878
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $0.001 par value per share
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Item 1. Description of Registrant's Securities to be Registered
The following description is only a summary and is subject to and
qualified in its entirety by the Registrant's certificate of incorporation and
bylaws, which are incorporated by reference into this registration statement,
and by the applicable provisions of Delaware law.
Common Stock
Holders of the Registrant's common stock, $0.001 par value per share,
are entitled to one vote per share on all matters to be voted upon by the
stockholders. Subject to the preferences that may be applicable to any
outstanding shares of preferred stock, common stockholders are entitled to
receive ratably such dividends, if any, as may be declared from time to time by
the board of directors of the Registrant out of funds legally available for that
purpose. In the event of a liquidation, dissolution or winding up of the
Registrant, the common stockholders are entitled to share ratably in all assets
remaining after payment of liabilities, subject to prior distribution rights of
any shares of preferred stock then outstanding. Common stockholders have no
preemptive or conversion rights or other subscription rights. There are no
redemption or sinking fund provisions applicable to the common stock.
Preferred Stock
The board of directors of the Registrant is authorized, without any
action by the stockholders, to designate and issue preferred stock in one or
more series and to designate the powers, preferences and rights of each series,
which may be greater than the rights of the common stock. It is not possible to
state the actual effect of the issuance of any shares of preferred stock upon
the rights of holders of the common stock until the board of directors of the
Registrant determines the specific rights of the holders of such preferred
stock. However, the effects might include, among other things:
o impairing the dividend rights of the common stock;
o diluting the voting power of the common stock;
o impairing the liquidation rights of the common stock; and
o delaying or preventing a change in control of the Registrant
without further action by the stockholders.
Anti-Takeover Provisions
Certain provisions of Delaware law and our certificate of
incorporation and bylaws could make the following more difficult:
o the acquisition of the Registrant by means of a tender offer;
o acquisition of control of the Registrant by means of a proxy
contest or otherwise; and
o the removal of the Registrant's incumbent officers and directors.
These provisions, summarized below, are expected to discourage certain
types of coercive takeover practices and inadequate takeover bids, and are
designed to encourage persons seeking to acquire control of the Registrant to
negotiate with the board of directors. The Registrant believes that the
benefits of increased protection against an unfriendly or unsolicited proposal
to acquire or restructure the Registrant outweigh the disadvantages of
discouraging such proposals. Among other things, negotiation of such proposals
could result in an improvement of their terms.
Delaware Anti-Takeover Law. The Registrant is subject to Section 203
of the Delaware General Corporation Law, an anti-takeover law. In general,
Section 203 prohibits a publicly held Delaware corporation from engaging in a
"business combination" with an "interested stockholder" for a period of three
years following the date the person became an interested stockholder, unless the
business combination or the transaction is approved by the board of directors of
the Registrant in a prescribed manner. Generally, a "business combination"
includes a merger, asset or stock sale, or other transaction resulting in a
financial benefit to the interested stockholder. Generally, an "interested
stockholder" is a person who, together with affiliates and associates, owns or,
within three years prior to the determination of interested stockholder status,
did own, 15% or more of a corporation's voting stock. The applicability of this
provision to the Registrant may have an anti-takeover effect with respect to
transactions not approved in advance by the board of directors, including
discouraging attempts that might result in a premium over the market price for
the shares of common stock held by stockholders.
Election and Removal of Directors. The Registrant's board of directors
is divided into three classes of directors, each serving staggered three-year
terms. As a result, only a portion of the board of directors will be elected
each year. To implement the classified structure, the term of one of the
directors will expire at the 2003 annual meeting of stockholders, the term of
two of the other directors will expire at the 2004 annual meeting of
stockholders and the term of the remaining two directors will expire at the 2005
annual meeting of stockholders. Directors elected at any annual meeting of
stockholders will serve three-year terms, unless such director resigns or is
otherwise removed from the board of directors in accordance with the
Registrant's certificate of incorporation and Delaware law. The Registrant's
certificate of incorporation provides that a director can only be removed from
the board of directors for cause and only by the affirmative vote of
stockholders holding two-thirds of the outstanding voting power of all classes
of stock entitled to vote in an election of directors, voting together as a
single class. The board of directors has the exclusive right to increase or
decrease the size of the board and to fill vacancies on the board. These
provisions may tend to discourage a third party from making a tender offer or
otherwise attempting to obtain control of the Registrant because they generally
make it more difficult for stockholders to replace a majority of the directors.
Stockholder Meetings. Under the Registrant's certificate of
incorporation, only the board of directors, if a resolution is adopted by at
least a majority of the total number of authorized directors, the chairman of
the board, the chief executive officer and the president of the Registrant may
call a special meeting of stockholders.
Requirements for Advance Notification of Stockholder Nominations and
Proposals. The Registrant's bylaws contain advance notice procedures with
respect to stockholder proposals and the nomination of candidates for election
as directors, other than nominations made by or at the direction of the board of
directors or a committee of the board of directors.
Elimination of Stockholder Action by Written Consent. The Registrant's
certificate of incorporation eliminates the right of stockholders to act by
written consent without a meeting. This provision will make it more difficult
for stockholders to take action opposed by the board of directors.
No Cumulative Voting. The Registrant's certificate of incorporation
does not provide for cumulative voting in the election of directors, which,
under Delaware law, precludes stockholders from
cumulating their votes in the election of directors, frustrating the ability of
minority stockholders to obtain representation on the board of directors.
Undesignated Preferred Stock. The authorization of undesignated
preferred stock makes it possible for the board of directors, without
stockholder approval, to issue preferred stock with voting or other rights or
preferences that could impede the success of any attempt to obtain control of
the Registrant. These and other provisions may have the effect of deferring
hostile takeovers or delaying changes in the control or management of the
Registrant.
Amendment of Provisions in the Certificate of Incorporation. The
certificate of incorporation requires the affirmative vote of the holders of at
least two-thirds of the outstanding voting power of the Registrant's stock to
amend or repeal any provision of the certificate of incorporation concerning
the:
o absence of the necessity of the directors to be elected by
written ballot;
o management of the business of the Registrant by the board of
directors;
o absence of the authority of stockholders to act by written
consent;
o authority to call a special meeting of stockholders;
o number of directors and structure of the board of directors;
o removal of directors and the filling of vacancies on the board of
directors;
o authority of the bylaws to govern advance notice provisions with
respect to nominations by stockholders for the election of
directors and other business to be brought before any meeting of
stockholders;
o the method of amending and authority to amend the bylaws and
certificate of incorporation of the Registrant;
o personal liability of directors to the Registrant and the
stockholders;
o indemnification of the directors, officers, employees and agents
of the Registrant;
o authority or vote required to amend or repeal the section of the
certificate of incorporation providing for the right to amend or
repeal provisions of the certificate of incorporation.
Amendment of Provisions in the Bylaws. The certificate of
incorporation requires the affirmative vote of the holders of at least
two-thirds of the outstanding voting power of the Registrant's stock to amend
any provision of the bylaws concerning:
o meetings of or actions taken by stockholders;
o number of directors and their term of office;
o election and qualification of directors;
o removal of directors and the filling of vacancies on the board of
directors;
o indemnification of the directors, officers, employees and agents
of the Registrant; and
o amendments to the bylaws.
Item 2. Exhibits
The following exhibits are filed as a part of this registration
statement:
2.1(1) Amended and Restated Certificate of Incorporation, to be effective upon
consummation of the Registrant's initial public offering of shares of
its common stock pursuant to the S-1 Registration Statement.
2.2(2) Amended and Restated Bylaws of the Registrant, to be effective upon
consummation of the Registrant's initial public offering of shares of
its common stock pursuant to the S-1 Registration Statement.
2.3(3) Form of common stock certificate.
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(1) Incorporated by reference to Exhibit 3.2 to the Registrant's registration
statement on Form S-1 (333-83878).
(2) Incorporated by reference to Exhibit 3.4 to the Registrant's registration
statement on Form S-1 (333-83878).
(3) Incorporated by reference to Exhibit 4.1 to the Registrant's registration
statement on Form S-1 (333-83878).
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereto duly authorized.
Date: May 6, 2002 NETFLIX, INC.
By: /s/ Reed Hastings
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Reed Hastings
Chief Executive Officer
EXHIBIT INDEX
Exhibit
Number Description
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2.1(1) Amended and Restated Certificate of Incorporation, to be effective upon
consummation of the Registrant's initial public offering
2.2(2) Amended and Restated Bylaws of the Registrant, to be effective upon
consummation of the Registrant's initial public offering
2.3(3) Form of common stock certificate
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(1) Incorporated by reference to Exhibit 3.2 to the Registrant's registration
statement on Form S-1 (333-83878).
(2) Incorporated by reference to Exhibit 3.4 to the Registrant's registration
statement on Form S-1 (333-83878).
(3) Incorporated by reference to Exhibit 4.1 to the Registrant's registration
statement on Form S-1 (333-83878).