$1,000,000,000 4.90% Senior Notes due 2034
$800,000,000 5.40% Senior Notes due 2054
Netflix, Inc.
Underwriting Agreement
July 30, 2024
Morgan Stanley & Co. LLC
Goldman Sachs & Co. LLC
J.P. Morgan Securities LLC
Wells Fargo Securities, LLC
As Representatives of the several Underwriters listed
in Schedule 1 hereto
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
Ladies and Gentlemen:
Netflix, Inc., a Delaware corporation (the “Company”),
proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representatives (the “Representatives”), $1,000,000,000 principal amount of its 4.90% Senior Notes due 2034 (the “2034 Notes”), and $800,000,000 principal amount of its 5.40% Senior Notes due 2054 (the “2054 Notes,” and together with the 2034 Notes,
the “Securities”). The Securities will be issued pursuant to an Indenture to be dated as of July 29, 2024 (the “Base Indenture”) between the Company, and Computershare Trust Company, National Association, as trustee (the “Trustee”),
as amended by a Supplemental Indenture to be dated as of August 1, 2024 (the “Supplemental Indenture” and together with the Base Indenture, the “Indenture”).
The Company hereby confirms its agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration statement on Form S-3 (File No. 333-281071), including a prospectus, relating to the Securities. Such
registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the “Registration Statement”;
and as used herein, the term “Preliminary Prospectus” means each prospectus included in such registration statement (and any amendments thereto) before effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the
Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in the form first used (or made available upon request of
purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. If the Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462 Registration Statement. Any reference in this agreement (this “Agreement”) to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be and any reference to “amend”, “amendment” or “supplement” with respect to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Exchange Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to 2:30 P.M New York Time on July 30, 2024, the time when sales of the Securities were first made (the “Time of Sale”), the Company had prepared the following information (collectively, the “Time
of Sale Information”): a Preliminary Prospectus dated July 30, 2024, and each “free-writing prospectus” (as defined pursuant to Rule 405 under
the Securities Act) listed on Annex A hereto.
2. Purchase and Sale of the Securities.
(a) The Company agrees to issue and sell the Securities to the several Underwriters as provided in this agreement (this “Agreement”), and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase
from the Company (i) the respective principal amount of 2034 Notes set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to 99.214% of the principal amount thereof plus accrued interest, if any, from August 1, 2024 to
the Closing Date (as defined below), and (ii) the respective principal amount of 2054 Notes set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to 99.040% of the principal amount thereof plus accrued interest, if any,
from August 1, 2024 to the Closing Date. The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
(b) The Company understands that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representatives is advisable, and initially to offer the Securities on the terms set forth in the Time of Sale Information. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an
Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made virtually at 9:00 A.M., New York City time, on August 1, 2024, or at such other time or place on the same or such other
date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date”.
(d) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives against delivery to
the nominee of The Depository Trust Company (“DTC”), for the account of the Underwriters, of one or more global notes representing the Securities
(collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note
will be made available for inspection by the Representatives not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(e) The Company acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the
offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the
Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters
and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the
Representatives or any Underwriter of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter, as the case may be, and
shall not be on behalf of the Company, as the case may be, or any other person.
3. Representations and Warranties of the Company. The Company represents and warrants to
each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided
that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below).
(b) Time of Sale Information. The Time
of Sale Information, at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made
in reliance upon and in conformity with Underwriter Information. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information
that is required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to
and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i) (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, including a Pricing Term Sheet substantially in the form of Annex B hereto, which constitute part of the Time of Sale
Information and (v) any electronic road show or other written communications, in each case, approved in writing in advance by the Representatives, such approval not to be unreasonably withheld. Each such Issuer Free Writing Prospectus complies in
all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus
accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, at the Time of Sale, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Company makes no
representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with Underwriter Information.
(d) Registration Statement and Prospectus.
The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the
Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has
been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related
to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”),
and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and
any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to (i) that part of the
Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with Underwriter Information.
(e) Incorporated Documents. The
documents incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission thereunder, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no representation is made as to
any statement or omission that shall have been superseded or modified in either (i) a document subsequently filed with the Commission and incorporated by reference in each of the Registration Statement, the Prospectus or the Time of Sale
Information or (ii) each of the Registration Statement, the Prospectus or the Time of Sale Information.
(f) Financial Statements. The financial statements and the related notes
thereto included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as of the dates indicated and the consolidated results of their operations and the consolidated changes in their cash
flows for the periods specified; except as set forth therein, such financial statements have been prepared in conformity with generally accepted accounting principles (“GAAP”)
applied on a consistent basis throughout the periods covered thereby; and the other financial information of the Company and its subsidiaries included or incorporated by reference in each of the Registration Statement, the Time of Sale Information
and the Prospectus has been derived from the accounting records of the Company and its subsidiaries and presents fairly in all material respects the information shown thereby. The interactive data in eXtensible Business Reporting Language included
or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines
applicable thereto.
(g) No Material Adverse Change. Except as disclosed in the Registration
Statement, Time of Sale Information and the Prospectus, since the date of the most recent financial statements of the Company included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the
Prospectus (i) there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business or properties of the Company and its subsidiaries, taken as a whole,
that is material and adverse and (ii) there has been no material adverse change in the capital stock (other than the issuance of the shares of common stock, options or restricted stock units to purchase or acquire shares of common stock granted
under, or contracts or commitments pursuant to, the Company’s previous or currently existing stock option, employee stock purchase and other similar officer, director or employee benefit plans or the issuance of the common stock upon the exercise
of outstanding options and warrants) or long-term indebtedness of the Company and its subsidiaries, taken as a whole.
(h) Organization and Good Standing. The Company and each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X promulgated under the Exchange Act, a “Significant Subsidiary”) of the Company has been duly organized and is validly existing and in good standing under the laws of its respective jurisdictions of organization, is duly qualified to do business
and is in good standing in each jurisdiction in which its respective ownership or lease of property or the conduct of its respective businesses as currently conducted requires such qualification, and has all power and authority necessary to own or
hold its respective properties and to conduct the businesses in which it is currently engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, have a
material adverse effect on the business, property or financial condition of the Company and its subsidiaries, taken as a whole or on the performance by the Company of its obligations under this Agreement, the Indenture and the Securities (a “Material Adverse Effect”).
(i) Capitalization. The Company has
the capitalization as set forth in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Capitalization.”
(j) The Indenture. The Company has the requisite power and authority to
execute and deliver the Indenture and perform its obligations thereunder; and all action required to be taken for the execution and delivery of the Indenture and the consummation of the transactions contemplated thereby by the Company has been duly
and validly taken by the Company on the date hereof. The Indenture has been duly authorized by the Company and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally
binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting
the enforcement of creditors’ rights generally or by equitable principles relating to enforceability including principles of good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or equity) (collectively,
the “Enforceability Exceptions”); and on the Closing Date the Indenture will conform in all material respects to the requirements of the Trust Indenture Act.
(k) The Securities. The Company has the requisite power and authority to
execute and deliver the Securities and perform its obligations thereunder; and all action required to be taken for the execution and delivery of the Securities and the consummation of the transactions contemplated thereby by the Company has been
duly and validly taken by the Company on the date hereof. The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be
duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the
benefits of the Indenture.
(l) Underwriting Agreement. The
Company has the requisite power and authority to execute and deliver this Agreement and perform its obligations hereunder; and all action required to be taken for the execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby by the Company has been duly and validly taken by the Company on the date hereof. This Agreement has been duly authorized, executed and delivered by the Company.
(m) Descriptions of the Transaction Documents. Each of this Agreement, the
Securities and the Indenture (collectively, the “Transaction Documents”) conforms in all material respects to the description thereof contained in each of
the Registration Statement, the Time of Sale Information and the Prospectus.
(n) No Conflicts. The execution, delivery and performance by the Company of
each of the Transaction Documents, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument binding upon the Company or any of its Significant Subsidiaries,
(ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any of its Significant Subsidiaries or (iii) assuming the accuracy of the representations and warranties of the
Underwriters contained herein and their compliance with their agreements contained herein, result in the violation of any applicable law or statute, order, rule or regulation of any court or arbitrator or governmental or regulatory authority having
jurisdiction over the Company or any of its Significant Subsidiaries or any of their properties, except in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(o) No Consents Required. Assuming the accuracy of the representations and
warranties of the Underwriters contained herein and their compliance with their agreements contained herein, no consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory
authority is required on the part of the Company for the execution, delivery and performance by the Company of each of the Transaction Documents, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents, except for (i) such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained, (ii) such consents, approvals, authorizations,
orders and registrations or qualifications as may be required under applicable state and foreign securities laws in connection with the purchase and distribution of the Securities by the Underwriters, (iii) such consents, approvals, authorizations,
orders and registrations or qualifications as are expressly contemplated by the Transaction Documents or (iv) in each case, where the failure to obtain such consents, approvals, authorizations, orders and registrations or qualifications,
individually or in the aggregate, would not have a Material Adverse Effect on the offering of the Securities.
(p) Legal Proceedings. Except as described in each of the Registration
Statement, the Time of Sale Information and the Prospectus, there are no legal, governmental or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (“Actions”) pending to which the Company or any of its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is, to the knowledge of the Company, the subject that,
individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; and to the Company’s knowledge, no such Actions are threatened or contemplated by any governmental or regulatory authority. There are no material
contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement and the Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Time of Sale Information and the Prospectus.
(q) Independent Accountants. Ernst & Young LLP, who has certified
certain financial statements of the Company and its subsidiaries, are independent public accountants with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company
Accounting Oversight Board (United States) and as required by the Securities Act.
(r) Intellectual Property. Except as would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect or as set forth in the Registration Statement, the Time of Sale Information and the Prospectus: (i) the Company and its Significant Subsidiaries owns, or is licensed to use, all
trademarks, trade names, copyrights, patents, software, domain names, trade secrets, know-how and other similar proprietary or intellectual property rights, including any registrations and applications for registration of, and all goodwill
associated with, the foregoing, material to or necessary to its business as currently conducted (collectively, “Intellectual Property”), and (ii) the
operation of such business or the use of any of the Intellectual Property rights by the Company and its Significant Subsidiaries does not infringe upon, misappropriate, or otherwise violate the intellectual property rights of any other Person.
(s) Investment Company Act. The
Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, will not be required
to register as an “investment company” or be an entity “controlled”
by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Investment Company Act”).
(t) Licenses and Permits. The Company and its Significant Subsidiaries
possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary to conduct their respective businesses, and neither the
Company nor any of its Significant Subsidiaries has received notice of any revocation or modification of any such license, certificate, permit or authorization except, in each case, with respect to any license, certificate, permit or authorization,
where any such failure to possess, revocation or modification would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(u) Disclosure Controls. The Company maintains an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by
the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that
such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company has carried out evaluations of the effectiveness of its disclosure controls and
procedures as required by Rule 13a-15 of the Exchange Act.
(v) Accounting Controls. The Company maintains systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been
designed by, or under the supervision of, its principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with GAAP. The Company maintains internal accounting controls sufficient to provide reasonable assurance that (i) the maintenance of records is in reasonable detail that accurately and
fairly reflects the transactions and disposition of assets; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and receipts and expenditures are being made only in accordance with the
authorizations of management and directors; (iii) regarding prevention or timely detection of unauthorized acquisitions, the use or disposition of the Company’s assets that could have a material effect on financial statements; and (iv) interactive
data in eXtensbile Business Reporting Language included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus is prepared in accordance with the Commission’s rules and guidelines
applicable thereto. Except as disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus, there are no material weaknesses or significant deficiencies in the Company’s internal controls.
(w) No Unlawful Payments. Neither the Company nor any of its subsidiaries or
affiliates, nor any director, officer or employee of the Company or any of its subsidiaries nor, to the Company’s knowledge, any agent, affiliate, representative or other person associated with or acting on behalf of the Company or any of its
subsidiaries or affiliates has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization
of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official
capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any
applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable
anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other
unlawful or improper payment or benefit. The Company and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted, maintain and enforce, and will continue to maintain
and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws and with the representation and warranty contained herein.
(x) Compliance with Anti-Money Laundering
Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by
Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and
its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(y) No Conflicts with Sanctions Laws. (i) Neither the Company nor any of
its subsidiaries, nor any director, officer, or employee thereof, nor, to the Company’s knowledge, any agent, affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is:
|
(A)
|
the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations
Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor
|
|
(B)
|
located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the Crimea Region of
Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, and Syria);
|
(ii) The Company represents and covenants that it will not, directly or indirectly, use the proceeds of the offering of the Securities
hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) except as detailed in Schedule 2, to fund or facilitate any activities or business of or with any Person or in any country or
territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or otherwise).
(iii) Except as detailed in Schedule 2, for the past 10 years, the Company and its subsidiaries have not knowingly engaged in and are
not now knowingly engaged in any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(z) Cybersecurity; Data Protection. The Company’s and its subsidiaries’
information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”)
operate and perform in all material respects as required in connection with, the operation of the business of the Company and its subsidiaries as currently conducted, free and clear of all material defects, viruses, Trojan horses, time bombs, and
other malware. The Company and its subsidiaries currently have implemented and maintain commercially reasonable controls, policies, procedures, and safeguards designed to maintain and protect their material confidential information and the
integrity, substantial continuous operation, redundancy and security of all IT Systems and all personal, personally identifiable, sensitive, protected, financial or confidential data in their possession or operational control or that is otherwise
processed by or on behalf of the Company or its subsidiaries (“Company Data”), and to the knowledge of the Company, there have been no material outages,
breaches or unauthorized uses of or accesses to any of the IT Systems or Company Data. The Company and its subsidiaries have materially complied, and are presently in material compliance, with all applicable laws and statutes and all applicable
judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, and all of the Company’s and its subsidiaries’ internal policies and contractual obligations, relating to the security of IT Systems and
privacy and data security with regard to Company Data and to the protection of such IT Systems and Company Data from unauthorized use, access, misappropriation or modification (“Data Security Obligations”). Neither the Company nor any of its subsidiaries has received any notification of or complaint regarding, nor are they aware of any other facts that, individually or in the aggregate, would
reasonably indicate material non-compliance with, any Data Security Obligation. There is no material pending, or to the knowledge of the Company, threatened, action, suit or proceeding by or before any court or governmental agency, authority or
body alleging non-compliance with any Data Security Obligation. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, the Company and its subsidiaries have at all times taken steps
reasonably necessary in accordance with customary industry practices (including, without limitation, implementing and monitoring compliance with adequate measures with respect to technical and physical security) to protect Company Data against
unauthorized access, use, modification, disclosure, loss or other misuse.
(aa) Status under the Securities Act. The Company is not an ineligible issuer
and is a well-known seasoned issuer, in each case, as defined under the Securities Act, in each case, at the times specified in the Securities Act in connection with the offering of the Securities. The Company has paid the registration fee for
this offering pursuant to Rule 457 under the Securities Act.
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet referred to in Annex B hereto) to the extent required
by Rule 433 under the Securities Act; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City
time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i)
under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge, to each
Underwriter an electronic copy of (A) the Registration Statement as originally filed and each amendment thereto, in each case, including all exhibits and consents filed therewith and (B) the Prospectus (including all amendments and supplements
thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus.
(c) Amendments or Supplements; Issuer Free
Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus,
whether before or after the time that the Registration Statement becomes effective the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for
review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object; provided, however, that the Representatives shall not object to any such filing if the Company obtains advice of outside counsel that such filing is required under the rules and
regulations of the Securities Act or Exchange Act; provided further that the Company shall have the right to file with the Commission any report required to be filed by the Company under the Exchange Act (based on the advice of the Company’s
internal or external counsel) no later than the time period required by the Exchange Act.
(d) Notice to the Representatives. The Company will advise the
Representatives promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any
amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments
from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission or any other governmental or regulatory authority of any order suspending the
effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus, any Time of Sale Information or any Issuer Free Writing Prospectus or the initiation or threatening of any proceeding for
that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event or development within the Prospectus Delivery Period as a result of which the Prospectus, any of the Time of Sale Information or any Issuer Free
Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing when the Prospectus,
the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; and the Company will use commercially reasonable efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or
suspending the use of any Preliminary Prospectus, any of the Time of Sale Information, Issuer Free Writing Prospectus or the Prospectus, or suspending any such qualification of the Securities and, if any such order is issued, will use commercially
reasonable efforts to obtain as soon as possible the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i)
any event shall occur or condition shall exist as a result of which any of the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with applicable law, the Company will promptly notify the
Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of Sale Information as so amended or supplemented
(including such documents to be incorporated by reference therein) will not, in light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply with applicable law.
(f) Ongoing Compliance. If during the
Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with applicable law, the Company
will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented including such documents to be
incorporated by reference therein will not, in light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with applicable law.
(g) Blue Sky Compliance. The Company will qualify the Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions (including Canada) as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Securities by the
Underwriters; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any
such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(h) Earning Statement. The Company will make generally available to its
security holders and the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.
(i) Clear Market. During the period from the date hereof continuing to and
including the Closing Date, the Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company and having a tenor of more
than one year; provided that the foregoing shall not apply to the sale of Securities under this Agreement.
(j) Use of Proceeds. The Company will
apply the net proceeds from the sale of the Securities as described in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Use of proceeds”.
(k) DTC. The Company will use commercially reasonable efforts to assist the
Underwriters in arranging for the Securities to be eligible for clearance and settlement through DTC.
(l) No Stabilization. The Company will not take, directly or indirectly, any
action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(m) Record Retention. The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees
that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration
Statement and any press release issued by the Company) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant
to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved
by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Annex B hereto without the consent of the Company.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company if any such proceeding
against it is initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase Securities on the Closing Date as provided herein is subject to the performance by the Company in all material respects of its covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the
effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the
Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in
accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of
the Company contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct
on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B)
the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined under Section 3(a)(62) under the Exchange Act and (ii) no such organization shall
have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or any of its
subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No
event or condition of a type described in Section 3(g) hereof shall have occurred or shall exist, which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus
(excluding any amendment or supplement thereto) the effect of which in the reasonable judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the
manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as
of the Closing Date a certificate of an executive officer of the Company who has specific knowledge of the Company’s financial matters and is reasonably satisfactory to the Representatives (i) confirming that such officer has carefully reviewed the
Registration Statement, the Time of Sale Information and the Prospectus and, to the knowledge of such officer, the representations set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and
warranties of the Company in this Agreement are true and correct and that the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date,
Ernst & Young LLP shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by
reference in each of the Registration Statement, the Time of Sale Information and the Prospectus; provided that the letter delivered on the Closing Date
shall use a “cut-off” date no more than two business days prior to the Closing Date.
(g) Opinion and 10b-5 Statement of Counsel for the Company. Wilson Sonsini
Goodrich & Rosati, Professional Corporation, counsel for the Company, shall have furnished to the Representatives, at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Representatives.
(h) Opinion and 10b-5 Statement of Counsel for the Underwriters. The
Representatives shall have received on and as of the Closing Date an opinion and 10b-5 statement, addressed to the Underwriters, of Davis Polk & Wardwell LLP, counsel for the Underwriters, with respect to such matters as the Representatives may
reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(i) No Legal Impediment to Issuance.
No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(j) Good Standing. The Representatives shall have received on and as of the
Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing in such other jurisdictions as the Representatives may reasonably request, in each case, in writing or any standard
form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(k) DTC. The Securities shall be eligible for clearance and settlement
through DTC.
(l) Indenture and Securities. The
Indenture shall have been duly executed and delivered by a duly authorized officer of the Company, and the Trustee, and the Securities shall have been duly executed and delivered by a duly authorized officer of the Company and, immediately following the payment for the Securities pursuant to Section 2(b), duly authenticated by the Trustee.
(m) Additional Documents. On or prior
to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, reasonable and documented legal fees and other reasonable and documented expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees
and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus, or any Time of Sale Information, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case, except insofar as such losses, claims, damages or liabilities (including such legal fees and expenses) arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity with any Underwriter Information.
(b) Indemnification of the Company. Each Underwriter agrees, severally and
not jointly, to indemnify and hold harmless the Company and its directors and officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities (including, without limitation, reasonable legal fees and other reasonable expenses incurred
in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred) that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon
and in conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement
thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only such information consists of the following paragraphs in the Preliminary Prospectus and the Prospectus: the concession and
reallowance figures appearing in the third paragraph under the caption “Underwriting”; the information relating to making a market in the Securities in the seventh paragraph under the caption “Underwriting”; and the information related to
stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty bids contained in the eighth paragraph under the caption “Underwriting”. (the “Underwriter Information”).
(c) Notice and Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the
Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the reasonable and documented fees and expenses of such
counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and
agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the reasonable and documented fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such reasonable and documented fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors, officers and any control persons
of such Underwriter shall be designated in writing by the Representatives and any such separate firm for the Company and its directors and officers who signed the Registration Statement and any control persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) or
(b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by
the Company from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case, as set forth in the table on the cover of the Prospectus, bear to the aggregate
offering price of the Securities. The relative fault of the Company on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any reasonable and
documented legal or other reasonable and documented expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder and not
joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange or the Nasdaq
Global Select Market; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on the Nasdaq Global Select Market or The International Stock Exchange, as applicable; (iii) a general moratorium on commercial
banking activities shall have been declared by U.S. federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or
outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated
by this Agreement, the Time of Sale Information and the Prospectus.
10. Defaulting Underwriter.
(a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in
their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do
not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If
other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non‑defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Time of Sale Information and the Prospectus or in any other document or arrangement, and the Company agrees to
promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except
that the Company will continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not
the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of
the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of
reproducing and distributing each of the Transaction Documents; (iv) the reasonable fees and expenses of the Company’s counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses
of counsel for the Underwriters (provided that the costs under this clause (v) shall not exceed $10,000 in the aggregate)); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying
agent (including related fees and expenses of any counsel to such parties as may be agreed by the Company, the Trustee and any paying agent); (viii) all expenses and application fees incurred in connection with any filing with, and clearance of the
offering by, the Financial Industry Regulatory Authority, and the approval of the Securities for book-entry transfer by DTC; and (ix) all expenses incurred by the Company in connection with any “road show” presentation to potential investors. Except as provided in Section 7 and this Section 11, the Underwriters shall pay all of their own costs and expenses in connection with the transactions contemplated
hereby, including, without limitation, the fees and expenses of their counsel.
(b) If (i) this Agreement is terminated pursuant to Section 9 (other than as the result of an event of the type described in 9(i)), (ii) the Company for any reason fails to tender
the Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Company agrees to reimburse the Underwriters for all reasonable and documented
out-of-pocket costs and expenses (including the reasonable fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and to the benefit of the indemnified parties referred to in Section 7 hereof, and in each case, their respective successors. Nothing in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution, representations,
warranties (it being understood that such representations and warranties are made only as of the date hereof and as of the date of any certificate delivered pursuant to Section 6(e)) and agreements of the Company and the Underwriters contained in
this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and
effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act.
15. Compliance with USA Patriot Act. In accordance with the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the
name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
16. Miscellaneous.
(a) Authority of the Representatives. Any action by the Underwriters
hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o Goldman Sachs & Co. LLC, 200 West
Street, New York, New York 10282, Attention: Registration Department, (fax: (212) 902-9316), Email: [__]; c/o J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: Investment Grade Syndicate Desk, (fax: (212)
834-6081); c/o Morgan Stanley & Co. LLC, 1585 Broadway, 29th Floor, New York, New York 10036 Attention: Investment Banking Division (fax: (212) 507-8999); c/o Wells Fargo Securities, LLC, 550 South Tryon Street, 5th Floor, Charlotte, North
Carolina 28202, Attention: Transaction Management, email: [__]. Notices to the Company shall be given to it Netflix, Inc., 121 Albright Way, Los Gatos, California 95032 (fax: (408) 317-0414); Attention: Spencer Neumann with a copy to Wilson
Sonsini Goodrich Rosati, Professional Corporation, 650 Page Mill Road, Palo Alto, California 94304 (fax: (650) 493-6811); Attention: Erik Franks.
(c) Governing Law. This Agreement and any claim, controversy or dispute
arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(d) Submission to Jurisdiction. The
Company hereby submits to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. The Company waives any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. The Company agrees that final judgment in any such suit, action or proceeding brought in
such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which Company is subject by a suit upon such judgment.
(e) Waiver of Jury Trial. Each of the parties hereto hereby waives any right
to trial by jury in any suit or proceeding arising out of or relating to this Agreement.
(f) Recognition of the U.S. Special
Resolution Regimes.
(i) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special
Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if
this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(ii) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes
subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under
the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 16(f):
“BHC Act Affiliate” has the meaning assigned
to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
|
(i)
|
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
|
(ii)
|
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
|
(iii)
|
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default Right” has the meaning assigned to
that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each
of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
(g) Counterparts. This Agreement may be signed in one or more counterparts,
including by facsimile transmission, PDF or other electronic communication (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other
applicable law, e.g., www.docusign.com), each of which shall constitute an original and all of which together shall constitute one and the same agreement.
(h) Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(i) Headings. The headings herein are included for convenience of reference
only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
(j) UK Bail-in Legislation. Notwithstanding and to the exclusion of any
other term of this Agreement or any other agreements, arrangements, or understanding between the Underwriters and the Company, the Company acknowledges and accepts that a UK Bail-in Liability arising under this Agreement may be subject to the
exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts, and agrees to be bound by:
|
a.
|
the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of the
Underwriters to the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
|
|
i.
|
the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon;
|
|
ii.
|
the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the Underwriters or another person, and the issue to or conferral on the Issuer
of such shares, securities or obligations; |
|
iii.
|
the cancellation of the UK Bail-in Liability; and/or
|
|
iv.
|
the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and |
|
b.
|
the variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK
Bail-in Powers by the relevant UK resolution authority.
|
For the purpose of this Section 16(j),
“UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the
resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“UK Bail-in Powers” means the powers under the UK Bail-in Legislation to cancel, transfer or dilute shares issued by a person that is a
bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability
into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it to suspend any obligation in respect of that liability.
“UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.
|
(k)
|
UK MiFIR Product Governance. Each of the
Underwriters agrees that a determination will be made in relation to each issue about whether, for the purpose of 3.2.7R of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”), any Underwriter subscribing for any Securities is a manufacturer in respect of such Securities, but that, otherwise, neither the
Underwriters nor any of their respective affiliates will be a manufacturer for the purpose of the UK MiFIR Product Governance Rules.
|
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space
provided below.
| |
Very truly yours,
|
| |
|
|
| |
NETFLIX, INC.
|
| |
|
|
| |
By:
|
/s/ Jeffrey Karbowski
|
| |
Name:
|
Jeffrey Karbowski
|
| |
Title:
|
Chief Accounting Officer
|
|
Accepted: As of the date first written above
|
|
| |
|
|
|
For themselves and on behalf of the
several Underwriters listed
|
|
| |
|
|
| |
|
|
|
MORGAN STANLEY & CO. LLC
|
|
| |
|
|
|
By:
|
/s/ Michelle Wang
|
|
|
Name:
|
Michelle Wang
|
|
|
Title:
|
MD
|
|
| |
|
|
| |
|
|
|
GOLDMAN SACHS & CO. LLC
|
|
| |
|
|
|
By:
|
/s/ Jonathan K Zwart
|
|
|
Name:
|
Jonathan K Zwart
|
|
|
Title:
|
Managing Director
|
|
| |
|
|
| |
|
|
|
J.P. MORGAN SECURITIES LLC
|
|
| |
|
|
|
By:
|
/s/ Som Bhattacharyya
|
|
|
Name:
|
Som Bhattacharyya
|
|
|
Title:
|
Executive Director
|
|
| |
|
|
| |
|
|
|
WELLS FARGO SECURITIES, LLC
|
|
| |
|
|
|
By:
|
/s/ Carolyn Hurley
|
|
|
Name:
|
Carolyn Hurley
|
|
|
Title:
|
Managing Director
|
|
Schedule 1
|
Underwriter
|
Principal Amount of 2034 Notes
|
Principal Amount of 2054 Notes
|
| |
|
|
|
Morgan Stanley & Co. LLC
|
$200,000,000
|
$160,000,000
|
| |
|
|
|
Goldman Sachs & Co. LLC
|
$170,000,000
|
$136,000,000
|
| |
|
|
|
J.P. Morgan Securities LLC
|
$170,000,000
|
$136,000,000
|
| |
|
|
|
Wells Fargo Securities, LLC
|
$170,000,000
|
$136,000,000
|
| |
|
|
|
Citigroup Global Markets Inc.
|
$50,000,000
|
$40,000,000
|
| |
|
|
|
Santander US Capital Markets LLC
|
$50,000,000
|
$40,000,000
|
| |
|
|
|
SG Americas Securities, LLC
|
$50,000,000
|
$40,000,000
|
| |
|
|
|
ANZ Securities, Inc.
|
$20,000,000
|
$16,000,000
|
| |
|
|
|
BNP Paribas Securities Corp.
|
$20,000,000
|
$16,000,000
|
| |
|
|
|
BofA Securities, Inc.
|
$20,000,000
|
$16,000,000
|
| |
|
|
|
HSBC Securities (USA) Inc.
|
$20,000,000
|
$16,000,000
|
| |
|
|
|
RBC Capital Markets, LLC
|
$20,000,000
|
$16,000,000
|
| |
|
|
|
Standard Chartered Bank
|
$20,000,000
|
$16,000,000
|
| |
|
|
|
Drexel Hamilton, LLC
|
$5,000,000
|
$4,000,000
|
| |
|
|
|
Loop Capital Markets LLC
|
$5,000,000
|
$4,000,000
|
| |
|
|
|
R. Seelaus & Co., LLC
|
$5,000,000
|
$4,000,000
|
| |
|
|
|
Samuel A. Ramirez & Company, Inc.
|
$5,000,000
|
$4,000,000
|
| |
|
|
|
Total
|
$1,000,000,000
|
$800,000,000
|
Schedule 2
The Company’s streaming services are generally available worldwide, other than in the People’s Republic of China, Crimea, North Korea and Syria.
The Company held meetings in Cuba in April 2016.
In August of 2023, Netflix determined that an OFAC/UK sanctioned person holds a very minor interest in the 3.625% Senior Notes due 2027. This person was
identified in a timely manner by our paying agent and no payments have been made in violation of any sanctions. Interest payments to fulfill our obligation under the indenture are made pursuant to a specific license granted by OFAC to a blocked
account in the UK. These interest payments and the final principal payment will conclude in May of 2027.
Annex A
Time of Sale Information
|
•
|
Pricing Term Sheet, dated July 30, 2024, substantially in the form of Annex B.
|
Annex B
Pricing Term Sheet
Free Writing Prospectus
Filed Pursuant to Rule 433
Registration No. 333-281071
July 30, 2024
Netflix, Inc.
Pricing Term Sheet
|
Issuer:
|
|
Netflix, Inc.
|
|
Ratings:*
|
|
Baa1 / A (Moody’s / S&P)
|
|
Settlement Date:**
|
|
T+2; August 1, 2024
|
|
Joint Book-Running Managers:
|
|
Morgan Stanley & Co. LLC
Goldman Sachs & Co. LLC
J.P. Morgan Securities LLC
Wells Fargo Securities, LLC
Citigroup Global Markets Inc.
Santander US Capital Markets LLC
SG Americas Securities, LLC
|
|
Co-Managers:
|
|
ANZ Securities, Inc.
BNP Paribas Securities Corp.
BofA Securities, Inc.
HSBC Securities (USA) Inc.
RBC Capital Markets, LLC
Standard Chartered Bank***
Loop Capital Markets LLC
Drexel Hamilton, LLC
R. Seelaus & Co., LLC
Samuel A. Ramirez & Company, Inc.
|
4.90% Senior Notes due 2034
|
Title:
|
|
4.90% Senior Notes due 2034
|
|
Principal Amount:
|
|
$1,000,000,000
|
|
Coupon:
|
|
4.90%
|
|
Maturity Date:
|
|
August 15, 2034
|
|
Benchmark Treasury:
|
|
4.375% due May 15, 2034
|
|
Benchmark Treasury Price and Yield:
|
|
101-25+; 4.149%
|
|
Spread to Benchmark Treasury:
|
|
+ 80 basis points
|
|
Yield to Maturity:
|
|
4.949%
|
|
Price to Public:
|
|
99.614% of the principal amount
|
|
Interest Payment Dates:
|
|
Semi-annually on February 15 and August 15, commencing on February 15, 2025
|
|
Optional Redemption:
|
|
Prior to May 15, 2034 (three months prior to the maturity date of the 2034 notes) (the “2034 Notes Par Call Date”), the issuer may redeem the 2034 notes at its option, in whole or in part, at any time and from time to time, at a
redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the notes matured on the 2034 Notes Par Call Date) on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the date of redemption, and
(2) 100% of the principal amount of the notes to be redeemed
plus, in either case, accrued and unpaid interest thereon to the redemption date.
On or after the 2034 Notes Par Call Date, the issuer may redeem the notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the notes being redeemed plus accrued and
unpaid interest thereon to the redemption date.
|
|
Change of Control Put:
|
|
101% of the principal amount plus accrued and unpaid interest
|
|
CUSIP / ISIN:
|
|
64110LAZ9 / US64110LAZ94
|
5.40% Senior Notes due 2054
|
Title:
|
|
5.40% Senior Notes due 2054
|
|
Principal Amount:
|
|
$800,000,000
|
|
Coupon:
|
|
5.40%
|
|
Maturity Date:
|
|
August 15, 2054
|
|
Benchmark Treasury:
|
|
4.250% due February 15, 2054
|
|
Benchmark Treasury Price and Yield:
|
|
97-10; 4.414%
|
|
Spread to Benchmark Treasury:
|
|
+ 100 basis points
|
|
Yield to Maturity:
|
|
5.414%
|
|
Price to Public:
|
|
99.790% of the principal amount
|
|
Interest Payment Dates:
|
|
Semi-annually on February 15 and August 15, commencing on February 15, 2025
|
|
Optional Redemption:
|
|
Prior to February 15, 2054 (six months prior to the maturity date of the 2054 notes) (the “2054 Notes Par Call Date”), the issuer may redeem the 2054 notes at its option, in whole or in part, at any time and from time to time, at a
redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the notes matured on the 2054 Notes Par Call Date) on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the date of redemption, and
(2) 100% of the principal amount of the notes to be redeemed
plus, in either case, accrued and unpaid interest thereon to the redemption date.
On or after the 2054 Notes Par Call Date, the issuer may redeem the notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the notes being redeemed plus accrued and
unpaid interest thereon to the redemption date.
|
|
Change of Control Put:
|
|
101% of the principal amount plus accrued and unpaid interest
|
|
CUSIP / ISIN:
|
|
64110LBA3 / US64110LBA35
|
*The security ratings above are not a recommendation to buy, sell or hold the securities offered hereby. The ratings may be subject to revision or withdrawal at any time by the assigning rating organization, and each rating should be evaluated
independently of any other rating.
**Under Rule 15c6-1 of the Securities Exchange Act of 1934, as amended, trades in the secondary market are required to settle in one business day, unless the parties to a trade expressly agree otherwise. Accordingly, purchasers who wish to
trade notes prior to the first business day preceding the settlement date will be required, by virtue of the fact that the notes initially will settle in T+2, to specify alternative settlement arrangements to prevent a failed settlement.
Purchasers who wish to trade the notes prior to one business day before delivery should consult their advisors in this regard.
***Standard Chartered Bank will not effect any offers or sales of any notes in the United States unless it is through one or more U.S. registered broker-dealers as permitted by the regulations of FINRA.
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration
statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, the issuer,
any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Morgan Stanley & Co. LLC toll-free at 1-866-718-1649; Goldman Sachs & Co. LLC toll-free at 1-866-471-2526;
J.P. Morgan Securities LLC collect at 1-212-834-4533; or Wells Fargo Securities, LLC at 1-800-645-3751.
3
Exhibit 4.2
NETFLIX, INC.
as Issuer
AND
Computershare Trust Company, National Association,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 1, 2024
$1,000,000,000 of 4.90% Senior Notes due 2034
$800,000,000 of 5.40% Senior Notes due 2054
THIS FIRST SUPPLEMENTAL INDENTURE (the “Supplemental
Indenture”) is dated as of August 1, 2024 between NETFLIX, INC., a Delaware corporation (the “Company”), and COMPUTERSHARE TRUST
COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely in its capacity as trustee hereunder (together with its successors and assigns, the “Trustee”).
RECITALS
A.
The Company and the Trustee executed and delivered an Indenture, dated as
of July 29, 2024, (the “Base Indenture” and, as supplemented by the Supplemental Indenture, the “Indenture”), to provide for the issuance by the Company from time to time of unsubordinated debt securities evidencing its unsecured indebtedness (“Securities”).
B.
Pursuant to a Board Resolution, the Company has authorized the issuance
of $1,000,000,000 principal amount of 4.90% Senior Notes due 2034 (the “2034 Notes”) and $800,000,000 principal amount of 5.40% Senior Notes
due 2054 (the “2054 Notes,” and together with the 2034 Notes, the “Notes”).
C.
The entry into this Supplemental Indenture by the parties hereto is in
all respects authorized by the provisions of the Base Indenture.
D.
The Company desires to enter into this Supplemental Indenture to
establish the terms of the Notes in accordance with Section 2.2 of the Base Indenture and to establish the form of the Notes in accordance with Section 2.3 of the Base Indenture.
E.
All things necessary to make this Supplemental Indenture a valid and
legally binding agreement according to its terms have been done.
NOW, THEREFORE, for and in consideration of the foregoing premises, the Company and the Trustee mutually covenant and agree for the equal
and proportionate benefit of the respective holders from time to time of the Notes as follows:
ARTICLE I
Section 1.1
Terms of the Notes.
The following terms relate to the Notes:
(a)
The 2034 Notes shall constitute a series of Securities having the title “4.90% Senior Notes due 2034”
and the 2054 Notes shall constitute a separate series of Securities having the title “5.40% Senior Notes due 2054”.
(b)
The aggregate principal amount of the 2034 Notes (the “Initial 2034 Notes”) that may be initially authenticated and delivered under the Indenture shall be $1,000,000,000, and the aggregate principal amount of the 2054 Notes (the “Initial 2054 Notes”) that may be initially authenticated and delivered under the Indenture shall be $800,000,000. The Company may from time to
time, without the consent of the holders of Notes, issue additional 2034 Notes (in any such case, “Additional 2034 Notes”) or additional 2054
Notes (in any such case, “Additional 2054 Notes”) having the same ranking and the same interest rate, maturity and other terms as the Initial
2034 Notes or the Initial 2054 Notes, as the case may be. Any Additional 2034 Notes and the Initial 2034 Notes, and any Additional 2054 Notes and the Initial 2054 Notes, as the case may be, shall each constitute a single series under the
Indenture and all references to the 2034 Notes shall include the Initial 2034 Notes and any Additional 2034 Notes, and all references to the 2054 Notes shall include the Initial 2054 Notes and any Additional 2054 Notes, unless the context
otherwise requires; provided that unless such Additional 2034 Notes or Additional 2054 Notes are issued pursuant to a “qualified reopening” of the Initial 2034 Notes or the Initial 2054 Notes, respectively, or are otherwise treated as part of the
same “issue” of debt instruments as the Initial 2034 Notes or the Initial 2054 Notes, respectively, or are issued with no more than a de minimis amount of original discount, in each case, for U.S. federal income tax purposes, the Additional 2034
Notes or Additional 2054 Notes, as applicable, shall have a separate CUSIP number or, in connection with any physical notes, no CUSIP number. The aggregate principal amount of the Additional 2034 Notes and Additional 2054 Notes shall be
unlimited.
(c)
The entire outstanding principal of the 2034 Notes shall be payable on August 15, 2034, and the
entire outstanding principal of the 2054 Notes shall be payable on August 15, 2054.
(d)
The rate at which the 2034 Notes shall bear interest shall be 4.90% per year and the rate at which the
2054 Notes shall bear interest shall be 5.40% per year. The date from which interest shall accrue on the Notes shall be the most recent Interest Payment Date to which interest has been paid or provided for or, if no interest has been paid, from
August 1, 2024. The Interest Payment Dates for the Notes shall be February 15 and August 15 of each year, beginning February 15, 2025. Interest shall be payable on each Interest Payment Date to the holders of record at the close of business on
the February 1 and August 1 prior to each Interest Payment Date (a “regular record date”). The basis upon which interest shall be calculated
shall be that of a 360-day year consisting of twelve 30-day months.
(e)
The Notes shall be issuable in whole in the form of one or more registered Global Securities, and the
Depository for such Global Securities shall be The Depository Trust Company, New York, New York. The 2034 Notes shall be substantially in the form attached hereto as Exhibit A and the 2054 Notes shall be substantially in the form attached hereto
as Exhibit B, the terms of which are herein incorporated by reference. The Notes shall be issuable in denominations of $2,000 or any integral multiple of $1,000 in excess thereof.
(f)
The Notes may be redeemed at the option of the Company prior to the maturity date, as provided in
Section 1.3 hereof.
(g)
The Notes will not have the benefit of any sinking fund.
(h)
Except as provided herein, the holders of the Notes shall have no special rights in addition to those
provided in the Base Indenture upon the occurrence of any particular events.
(i)
The Notes will be general unsecured and unsubordinated obligations of the Company and will be ranked
equally among themselves.
(j)
The Notes are not convertible into shares of common stock or other securities of the Company.
(k)
The restrictive covenants set forth in Section 1.4, Section 1.5 and 1.6 hereof shall be applicable to
the Notes.
Section 1.2
Additional Defined Terms.
As used herein, the following defined terms shall have the following meanings with respect to the Notes only:
“Aggregate Lien Amount” means as
of the date of determination, the lesser of (a) the then outstanding aggregate principal amount of the Company and the Company’s Domestic Restricted Subsidiaries’ Indebtedness incurred after the Issue Date and secured by Liens not permitted under
the first paragraph under Section 1.5 and (b) the fair market value of the assets subject to the Liens referred to in clause (a), as determined in good faith by a Financial Officer of us.
“Board of Directors” means the
Company’s Board of Directors or any committee thereof duly authorized to act on behalf of its Board of Directors.
“Capital Stock” means, with
respect to any Person, any and all shares of stock of a corporation, partnership interests or other equivalent interests (however designated, whether voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the
profits and losses, and a distribution of assets, after liabilities, of such Person.
“Change of Control” means:
(1)
The Company become aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act,
proxy, vote, written notice or otherwise) that any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), is or
has become the “beneficial owner” (as such term is used in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of the Company’s Voting Stock; provided, however, that for purposes of this clause (1) such person or group shall be
deemed to have “beneficial ownership” of all shares that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time, directly or indirectly; and provided, further, that a
transaction will not be deemed to involve a Change of Control under this clause (1) if (a) the Company becomes a direct or indirect wholly owned subsidiary of another Person, and (b)(i) the direct or indirect holders of the Voting Stock of
such Person immediately following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (ii) immediately following that transaction no “person” or “group” (other than
a Person satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company; or
(2)
The Company sells, conveys, transfers or leases (either in one transaction or a series of related transactions) all
or substantially all assets of the Company and its Subsidiaries’ taken as a whole to, or merges or consolidates with, a Person (other than the Company or any of its Subsidiaries), other than any such merger or consolidation where the shares of
the Company’s Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person or parent entity thereof immediately after giving effect to
such transaction.
“Change of Control Triggering Event”
means the occurrence of a Change of Control that is accompanied or followed by a downgrade of the Company’s Debt Ratings within the Ratings Decline Period for such Change of Control by each of Moody’s and S&P (or, in the event Moody’s or
S&P or both shall cease rating the Debt Rating of the Company (for reasons outside the Company’s control) and the Company shall select any other nationally recognized rating agency, the equivalent of such ratings by such other nationally
recognized rating agency) to a level that is lower than an Investment Grade Rating by each of such rating agencies.
“Consolidated Subsidiaries” means,
as of any date of determination and with respect to any Person, those Subsidiaries of that Person whose financial data is, in accordance with GAAP, reflected in that Person’s consolidated financial statements.
“Consolidated Total Assets” means,
as of the date of any determination thereof, total assets of the Company and its Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date.
“Content” means rights to
audio/visual content, and any rights in assets related to the acquisition, development, production or licensing of such content, and the products and proceeds thereof.
“Content Acquisition Transaction”
means any purchase (which includes the development, production, licensing of Content or other arrangement for the acquisition of Content, including through the acquisition of one or more entities whose primary assets are Content) of any Content by
the Company or any of its subsidiaries.
“Content Disposition Transaction”
means any disposition (which includes the sale, licensing, exploitation, distribution or other arrangement for the disposition) of any Content or any rights or assets related thereto, including any transaction (including a borrowing) for purposes
of monetizing receivables or other rights to payment arising from any such disposition.
“Content Project Subsidiary” means
a Subsidiary formed for the purpose of purchasing (which includes the development, production or licensing of Content or other arrangement for the acquisition of Content, including through the acquisition of one or more entities whose primary
assets are Content) or disposing (which includes the sale, licensing, exploitation, distribution or other arrangement for the disposition) of Content, provided
that the assets of such Subsidiary are limited to (A) Content with respect to Related Projects, (B) assets and rights arising from any disposition (which includes the sale, licensing, exploitation, distribution or other arrangement for the
disposition) of any such Content, (C) cash and cash equivalents, (D) equity of a Subsidiary that is a Content Project Subsidiary with respect to a Related Project, and (E) other assets and rights related to or reasonably necessary or useful for the
purpose of engaging in any such acquisition or disposition of such Content.
“Debt Rating” means, as of the
date of determination, the rating as determined by either S&P or Moody’s of the Company’s non-credit enhanced, senior unsecured long-term debt.
“Domestic Restricted Subsidiary”
means, with respect to any Person, any Subsidiary of such Person that is organized or existing under the laws of the United States, any state thereof or the District of Columbia, other than any such Subsidiary that is owned (directly or indirectly)
by a Foreign Subsidiary of such Person.
“Equity Interests” means all
Capital Stock and all warrants or options with respect to, or other rights to purchase, Capital Stock, but excluding Indebtedness convertible into or exchangeable for equity.
“Existing Senior Notes” means the
Company’s 5.875% Senior Notes due 2025, 3.000% Senior Notes due 2025, 3.625% Senior Notes due 2025, 4.375% Senior Notes due 2026, 3.625% Senior Notes due 2027, 4.875% Senior Notes due 2028, 5.875% Senior Notes due 2028, 4.625% Senior Notes due
2029, 6.375% Senior Notes due 2029, 3.875% Senior Notes due 2029, 5.375% Senior Notes due 2029, 3.625% Senior Notes due 2030 and 4.875% Senior Notes due 2030.
“Finance Lease” means, as applied
to any Person, any lease of any property, whether real, personal or mixed, of such Person as lessee is required to be classified and accounted for as a finance lease in accordance with GAAP.
“Financial Officer” means any of
the chief financial officer, principal accounting officer, vice president of finance, treasurer or corporate controller or most senior financial officer of us.
“Foreign Subsidiary” means with
respect to any Person, any Subsidiary of such Person other than one that is organized or existing under the laws of the United States, any state thereof or the District of Columbia.
“GAAP” means generally accepted
accounting principles in the United States set forth in the statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting
profession in the United States, which are in effect as of the date of determination; provided that, except as otherwise specifically provided, all calculations made for purposes of determining compliance with the terms of the provisions of the
indenture shall utilize GAAP as in effect on the Issue Date.
“Guarantee” means any obligation,
contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. For
the avoidance of doubt, an agreement or arrangement or series of related agreements or arrangements providing for or in connection with the purchase of assets, securities, services or rights (including, without limitation, a Content Acquisition
Transaction) that is entered into in connection with the Company’s business or any Subsidiary of it (including any consent or acknowledgement of assignment, including any assignment of payment obligations and related obligations, and related
waivers) shall not constitute a Guarantee, provided payment obligations provided for under such agreements or arrangements are limited to payments for assets, securities, services and rights (including Content) and other ancillary payment
obligations customary in such transactions. The term “Guarantee” used as a verb has a corresponding meaning.
“Indebtedness” of any specified
Person means any obligation for borrowed money. For the avoidance of doubt, Indebtedness with respect to any Person only includes indebtedness for the repayment of money provided to such Person, and does not include any other kind of indebtedness
or obligation notwithstanding that such other indebtedness or obligation may be evidenced by a note, bond, debenture or other similar instrument, may be in the nature of a financing transaction, or may be an obligation that under GAAP is classified
as “debt” or another type of liability, whether required to be reflected on the balance sheet of such Person or otherwise.
“Interest Payment Date” means
February 15 and August 15.
“Investment” by any Person means
any direct or indirect loan, advance (or other extension of credit) or capital contribution to (by means of any transfer of cash or other property or assets to another Person or any other payments for property or services for the account or use of
another Person) another Person, including, without limitation, the following: (1) the purchase or acquisition of any Capital Stock or other evidence of beneficial ownership in another Person; and (2) the purchase, acquisition or Guarantee of the
Indebtedness or other liability of another Person.
“Investment Grade Rating” means a
rating by Moody’s equal to or higher than Baa3 (or the equivalent under a successor rating category of Moody’s) or a rating by S&P equal to or higher than BBB- (or the equivalent under any successor rating category of S&P).
“Issue Date” means the date of
original issuance of the notes under this Indenture.
“Joint Venture” means, with
respect to any Person, any partnership, corporation or other entity in which up to and including 50% of the Equity Interests is owned, directly or indirectly, by such Person and/or one or more of its Subsidiaries.
“Lien” means any lien, security
interest, mortgage, charge or similar encumbrance; provided, however, that in no event shall an operating lease or a nonexclusive license be deemed to constitute a Lien.
“Measurement Period” means, at any
date of determination, the Company’s most recently completed four fiscal quarters for which financial statements have been or are required to be filed with the SEC.
“Moody’s” means Moody’s Investors
Service, Inc. and any successor to its rating agency business.
“Optional Redemption Date” when
used with respect to any Note to be redeemed at the Company’s option, means the date fixed for such redemption by or pursuant to Section 1.3 of this Supplemental Indenture.
“Par Call Date” means (i) with
respect to the 2034 Notes, May 15, 2034 (three months prior to the maturity date of the 2034 Notes), and (ii) with respect to the 2054 Notes, February 15, 2054 (six months prior to the maturity date of the 2054 Notes).
“Permitted Liens” means:
(1)
Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or
construction (which term includes, for avoidance of doubt, development, creation and production) of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all
renewals, extensions, refinancings, replacements or refundings of such obligations;
(2)
(a) Liens given to secure the payment of the purchase price or other acquisition, installation or construction
(which term includes, for avoidance of doubt, development, creation and production) costs incurred in connection with the acquisition (including acquisition through merger or consolidation) of any Principal Property, including Finance Lease
transactions in connection with any such acquisition and including any purchase money Liens, and (b) Liens existing on any Principal Property at the time of acquisition (including acquisition through merger or consolidation) thereof or at the
time of acquisition by the Company or any Domestic Restricted Subsidiary of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach;
provided that with respect to clause (a), the Liens shall be given within 12 months after such acquisition and shall attach solely to the Principal Property acquired or purchased and any improvements then or thereafter placed thereon and any
proceeds thereof, accessions thereto and insurance proceeds thereof;
(3)
Liens in favor of the Company or a Domestic Restricted Subsidiary;
(4)
Liens on any Principal Property in favor of the United States of America or any state thereof or any political
subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such Principal Property;
(5)
Liens imposed by law, such as carriers’, warehousemen’s and mechanic’s Liens and other similar Liens arising in the
ordinary course of business, Liens in connection with legal proceedings and Liens arising solely by virtue of any statutory, common law or contractual provision relating to banker’s Liens, rights of set-off or similar rights and remedies as to
securities accounts, deposit accounts or other funds maintained with a creditor depository institution;
(6)
Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or
subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;
(7)
Liens to secure the performance of bids, trade or commercial contracts, government contracts, purchase, construction,
sales and servicing contracts (including utility contracts), leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business,
deposits as security for contested taxes, import or customs duties, liabilities to insurance carriers or for the payment of rent, and Liens to secure letters of credit, Guarantees, bonds or other sureties given in connection with the foregoing
obligations or in connection with workers’ compensation, unemployment insurance or other types of social security or similar laws and regulations;
(8)
licenses and sublicenses of intellectual property of the Company and its Domestic Restricted Subsidiaries and
leases and subleases of property granted to others not in any way interfering in any material respect with the business of the Company and its Subsidiaries;
(9)
Liens upon specific items of inventory or other goods, documents of title and proceeds of any Person securing such
Person’s obligation in respect of letters of credit or banker’s acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(10)
Liens on stock, partnership or other equity interests in any Joint Venture of the Company or any Domestic
Restricted Subsidiaries or in any Domestic Restricted Subsidiary that owns an equity interest in a Joint Venture to secure Indebtedness contributed or advanced solely to that Joint Venture; provided that, in each case, the Indebtedness secured
by such Lien is not secured by a Lien on any other property of the Company or any Domestic Restricted Subsidiary;
(11)
Liens and deposits securing netting services, business credit card programs, overdraft protection and other
treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(12)
Liens on, and consisting of, deposits made by the Company to discharge or defease the Notes and the Indenture or any
other Indebtedness, including the Existing Senior Notes and Revolving Credit Agreement;
(13)
Liens on insurance policies and the proceeds thereof incurred in connection with the financing of insurance
premiums;
(14)
easements, rights of way, covenants, restrictions, minor encroachments, protrusions, municipal and zoning and
building ordinances and similar charges, encumbrances, title defects or other irregularities, governmental restrictions on the use of property or conduct of business, and other similar charges and encumbrances and Liens in favor of governmental
authorities and public utilities, that do not materially interfere with the ordinary course of business of the Company and its Subsidiaries, taken as a whole;
(15)
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods and Liens deemed to exist in connection with Investments in repurchase agreements;
(16)
Liens on (a) assets of a Content Project Subsidiary in connection with (x) Content Acquisition Transactions by such
Subsidiary and other Content Acquisition Transactions with respect to Related Projects by one or more Content Project Subsidiaries, and (y) Content Disposition Transactions by such Subsidiary or other Content Disposition Transactions with
respect to Related Projects by one or more Content Project Subsidiaries, and (b) assets in connection with such transactions, provided, in the case of the Company only, such Liens attach solely to the Content acquired in such transaction, the
rights arising as a result of the disposition of such Content or rights therein (including receivables and other rights to payment arising from such transaction), other assets related to such Content or such rights and, in each case, the
products and proceeds thereof; or
(17)
any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or
replacements), in whole or in part, of any Lien referred to in the preceding bullet points, inclusive.
For the avoidance of doubt, the inclusion of specific Liens in the definition of “Permitted Liens” shall not create any implication that
the obligations secured by such Liens constitute Indebtedness.
“Person” means any individual,
corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Principal Property” means, with
respect to any Person, all of such Person’s interests in any kind of property or asset (including the Capital Stock in and other securities of any other Person), except such as the Board of Directors by resolution determines in good faith (taking
into account, among other things, the materiality of such property to the business, financial condition and earnings of the Company and its Consolidated Subsidiaries taken as a whole) not to be material to the business of the Company and its
Consolidated Subsidiaries, taken as a whole.
“Ratings Decline Period” means,
with respect to any Change of Control, the period that (1) begins on the earlier of (a) the date of the first public announcement of the occurrence of such Change of Control or of the Company’s intention or a stockholder of the Company, as
applicable, to effect such Change of Control or (b) the occurrence of such Change of Control and (2) ends on the 60th calendar day following consummation of such Change of Control; provided, however, that such period shall be extended for so long
as the Company’s Debt Rating, as noted by the applicable rating agency, is under publicly announced consideration for downgrade by the applicable rating agency.
“Related Projects” means (i) a
specified project or a series of projects (e.g., a television series and subsequent seasons of such series), (ii) a project and any derivative works related to such project, and (iii) a group of projects pursuant to a commercial agreement or other
arrangement (including a development, production or licensing agreement or arrangement) that provides for or includes such group of projects (e.g., a “slate”).
“Revolving Credit Agreement” means
that certain Senior Unsecured Revolving Credit Agreement, dated as of April 12, 2024, by and among the Company, as borrower, the lenders party thereto, and JPMorgan Chase Bank, N.A., as administrative agent.
“Subsidiary” of a Person means a
corporation, partnership, limited liability company or other similar entity a majority of whose Voting Stock is owned by such Person or a Subsidiary of such Person. Unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of us.
“S&P” means S&P Global
Ratings (a division of S&P Global Inc.) and any successor to its rating agency business.
“Treasury Rate” means, with
respect to any Optional Redemption Date, the yield determined by the Company in accordance with the following two paragraphs:
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government
securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Optional Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in
the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government
securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal
to the period from the Optional Redemption Date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the
Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the applicable Par Call Date on a straight-line
basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single
Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or
years, as applicable, of such Treasury constant maturity from the Optional Redemption Date.
If on the third business day preceding the Optional Redemption Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on
the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Optional Redemption Date of the United States Treasury security maturing on, or with a maturity
that is closest to, the applicable Par Call Date, as applicable. If there is no United States Treasury security maturing on the applicable Par Call Date but there are two or more United States Treasury securities with a maturity date equally
distant from the applicable Par Call Date, one with a maturity date preceding the applicable Par Call Date and one with a maturity date following the applicable Par Call Date, the Company shall select the United States Treasury security with a
maturity date preceding the applicable Par Call Date. If there are two or more United States Treasury securities maturing on the applicable Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding
sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury
securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of
the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“Voting Stock” of a Person means
all classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees
thereof.
Section 1.3
Optional Redemption.
(a)
The provisions of Article III of the Base Indenture, as amended by the provisions of this Supplemental Indenture,
shall apply to the Notes with respect to this Section 1.3.
(b)
Prior to the applicable Par Call Date, the Notes shall be redeemable, in whole or in part, at any time and from time
to time, at the Company’s option, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1)
(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to
the Optional Redemption Date (assuming the Notes matured on the applicable Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus (i) 15 basis points in the case of the 2034
Notes or (ii) 15 basis points in the case of the 2054 Notes, less (b) interest accrued to the Optional Redemption Date, and
(2)
100% of the principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest
thereon to the Optional Redemption Date.
(c)
On or after the applicable Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from
time to time, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to the Optional Redemption Date.
(d)
The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for
all purposes, absent manifest error. The Trustee shall have no obligation to determine or verify any determination of the redemption price.
(e)
Notice of any redemption shall be mailed or electronically delivered (or otherwise transmitted in accordance with
the Depositary’s procedures) at least 10 days but not more than 60 days before the Optional Redemption Date to each holder of Notes to be redeemed.
(f)
In the case of a partial redemption, selection of the Notes for redemption shall be made pro rata, by lot or by such
other method as the Trustee deems appropriate and fair; provided that in the case of Global Securities, the selection of notes for redemption shall be made in accordance with the Depository’s applicable procedures. No Notes of a principal amount
of $2,000 or less shall be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note shall state the portion of the principal amount of the Note to be redeemed. A new Note in a principal
amount equal to the unredeemed portion of the Note shall be issued in the name of the holder of the Note upon surrender for cancellation of the original note. For so long as the Notes are held by DTC (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the depositary.
Unless the Company defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the
notes or portions thereof called for redemption.
Section 1.4
Change of Control.
The following additional covenant shall apply with respect to the Notes so long as any of the Notes remain outstanding:
(a) Change of Control
Triggering Event.
(1)
If a Change of Control Triggering Event occurs with respect to the Notes, unless the Company shall have exercised
its option to redeem the Notes in full, as set forth in Section 1.3 of this Supplemental Indenture, or the Company shall have defeased the Notes or have satisfied and discharged the Notes, as set forth in Article VIII of the Base Indenture, the
Company shall make an offer (the “Change of Control Offer”) to each holder of the Notes to repurchase any and all of such holder’s Notes at a
repurchase price in cash equal to 101% of the aggregate principal amount of Notes to be repurchased (such principal amount to be equal to $2,000 or an integral multiple of $1,000 in excess of $2,000), plus accrued and unpaid interest, if any,
on the Notes to be repurchased up to, but excluding, the date of repurchase (the “Change of Control Payment”). Within 30 days following any
Change of Control Triggering Event, the Company shall give written notice to the Trustee and holders of the Notes describing the transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase the
Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given (the “Change of Control Payment Date”), pursuant to the procedures required by the Notes and described in such notice.
(2)
Notwithstanding the foregoing, installments of interest on the applicable series of Notes whose Stated Maturity is on
or prior to the Change of Control Payment Date shall be payable on the applicable Interest Payment Date to the holders of such Notes registered as such at the close of business on the applicable record date pursuant to the Notes and the
Indenture.
(3)
On the Change of Control Payment Date, the Company shall, to the extent lawful:
(i)
accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(ii)
deposit with the Trustee or a paying agent an amount equal to the Change of Control Payment in respect of all Notes
or portions of Notes properly tendered; and
(iii)
deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers’ Certificate
stating (1) the aggregate principal amount of Notes or portions of Notes being repurchased, (2) that all conditions precedent contained herein to make a Change of Control Offer have been complied with and (3) that the Change of Control Offer
has been made in compliance with the Indenture.
(4)
The Company shall comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any
such securities laws or regulations conflict with the Change of Control Offer provisions of this Section 1.4, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations
under this Section 1.4 by virtue of any such conflict.
Section 1.5
Limitation on Liens.
The following additional covenant shall apply with respect to the Notes so long as any of the Notes remain outstanding:
(a)
The Company will not, and will not permit any of its Domestic Restricted Subsidiaries to enter into, create, incur or
assume any Lien on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no
longer secured by such Lien, except:
(1)
Liens existing as of the Issue Date;
(2)
Liens granted after the Issue Date created in favor of the holders of such Notes;
(3)
Liens created in substitution of, or as replacements for, any Liens described in clauses (1) and (2) above; provided that based on a good faith determination of one of the Company’s Financial Officers, the Principal Property encumbered under any such
substitute or replacement Lien is substantially similar in nature to the Principal Property encumbered by the otherwise permitted Lien which is being replaced; and
(4)
Permitted Liens.
Notwithstanding the foregoing, the Company or any Domestic Restricted Subsidiary may, without equally and ratably securing the Notes, create or incur Liens
which would otherwise be subject to the restrictions set forth in the preceding paragraph, if after giving effect thereto, the Aggregate Lien Amount does not exceed an amount equal to the greater of (a) $7.0 billion, and (b) 15.0% of the Company’s
Consolidated Total Assets for the Measurement Period immediately preceding the date of the creation or incurrence of the Lien. The Company or any Domestic Restricted Subsidiary also may, without equally and ratably securing the Notes, create or
incur Liens that extend, renew, substitute or replace (including successive extensions, renewals, substitutions or replacements), in whole or in part, any Lien permitted pursuant to the preceding sentence.
Section 1.6
Consolidation, Merger and Sale of Assets.
The following additional covenant shall apply with respect to the Notes so long as any of the Notes remain outstanding:
(a)
The Company will not consolidate with or merge with or into, or convey, sell, transfer or lease all or
substantially all of its and its Subsidiaries’ properties and assets (determined on a consolidated basis), taken as a whole, to, any Person, in a single transaction or in a series of related transactions, unless:
(1)
either (a) the Company is the Person formed by or surviving any such consolidation or merger (the Person formed by
or surviving a consolidation or merger, the “continuing Person”) or (b) the Person (if other than us) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, all
or substantially all of its or its Subsidiaries’ properties and assets (determined on a consolidated basis), taken as a whole (the “Successor
Company”), is an entity organized under the laws of the United States of America, any state thereof or the District of Columbia;
(2)
if the Company is not the continuing Person, the Successor Company expressly assumes the Company’s obligations with
respect to the Notes and the Indenture pursuant to a supplemental indenture;
(3)
immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse
of time or both, would become an Event of Default, shall have occurred and be continuing; and
(4)
If the Company is not the continuing Person, the Company or the Successor Company has delivered to the Trustee an
Officer’s Certificate and Opinion of Counsel, stating that such consolidation, merger, conveyance, sale, transfer or lease, and if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with
this Section 1.6 and that all conditions precedent herein provided for relating to such transaction have been satisfied.
Upon any transaction or series of related transactions to which the foregoing requirements apply and are effected in accordance with such requirements, the
Successor Company shall succeed to, and be substituted for the Company, and may exercise every right and power of the Company’s under the Indenture with the same effect as if such Successor Company had been named as the Company therein; and when a
Successor Company duly assumes all of the Company’s obligations and covenants pursuant to the Indenture and the Notes, except in the case of a lease, the predecessor Person shall be relieved of all such obligations.
Section 1.7
Events of Default.
(a)
With respect to the Notes, in lieu of the defined term in the Base Indenture, “Event of Default” means any one or more of the following events that has occurred and is continuing:
(1)
default in the payment of the principal or any premium on any Note when due (whether at maturity, upon
acceleration, redemption or otherwise);
(2)
default for 30 days in the payment of interest on any Note when due;
(3)
failure by the Company to observe or perform any term of the Indenture (other than those referred to in (1) or (2)
above) for a period of 90 days after the Company receives a notice of default stating that the Company is in breach. The notice must be sent by either the Trustee or holders of 25% of the principal amount of the Notes of the affected series;
(4)
the entry by a court having competent jurisdiction of:
(A)
an order for relief in respect of the Company as debtor in an involuntary proceeding under any applicable Bankruptcy
Law and such order shall remain unstayed and in effect for a period of 60 consecutive days; or
(B)
a final and non-appealable order appointing a Custodian of the Company, or ordering the winding up or liquidation of
the affairs of the Company, and such order shall remain unstayed and in effect for a period of 60 consecutive days; or
(5)
the commencement by the Company of a voluntary proceeding under any applicable Bankruptcy Law or the consent by the
Company as debtor to the entry of a decree or order for relief in an involuntary proceeding under any applicable Bankruptcy Law, or the filing by the Company as debtor of a consent to an order for relief in any involuntary proceeding under any
Bankruptcy Law, or to the appointment of a Custodian or the making by the Company of an assignment for the benefit of creditors.
ARTICLE II
MISCELLANEOUS
Section 2.1
Definitions.
Capitalized terms used but not defined in this Supplemental Indenture shall have the meanings ascribed thereto in the Base Indenture.
Section 2.2
Confirmation of Indenture.
The Base Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified and confirmed, and the Base
Indenture, this Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.
Section 2.3
Concerning the Trustee.
In carrying out the Trustee’s responsibilities hereunder, the Trustee shall have all of the rights, protections, immunities and
indemnities which it possesses under the Indenture. The recitals contained herein and in the Notes, except the Trustee’s certificate of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of the Notes or the proceeds
thereof.
Section 2.4
Governing Law.
This Supplemental Indenture and the Notes shall be deemed to be a contract made under the internal laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
Section 2.5
Separability.
In case any provision in this Supplemental Indenture shall for any reason be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 2.6
Counterparts.
This Supplemental Indenture may be executed in any number of counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as
to the parties hereto and may be used in lieu of the original Supplemental Indenture and signature pages for all purposes.
Nothing in this Supplemental Indenture, express or implied, shall give to any Person other than the parties hereto and their successors
or assigns, and the holders of the Notes, any benefit or legal or equitable rights, remedy or claim under this Supplemental Indenture or the Base Indenture.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed all as of the day and year first above
written.
| |
NETFLIX, INC.
|
| |
By:
|
/s/ Jeffrey Karbowski
|
| |
|
Name: Jeffrey Karbowski
|
| |
|
Title: Chief Accounting Officer
|
|
COMPUTERSHARE TRUST COMPANY,
NATIONAL ASSOCIATION
|
|
as Trustee
|
| |
By:
|
/s/ Eric Schlemmer
|
| |
|
Name: Eric Schlemmer
|
| |
|
Title: Vice President
|
[Signature Page to Supplemental Indenture]
EXHIBIT A
FORM OF 4.90% SENIOR NOTES DUE 2034
[Insert the Global Security legend, if applicable]
4.90% SENIOR NOTES DUE 2034
|
No. [ ]
CUSIP No. 64110LAZ9
|
$[ ]
|
NETFLIX, INC.
promises to pay to [ ] or registered assigns, the principal sum of [ ] Dollars (as may be adjusted by the increased or decreased as reflected on the
Schedule of Increases or Decreases in the Global Security attached hereto) on August 15, 2034.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Each holder of this Security (as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described
herein, and authorizes and directs the Trustee described herein on such holder’s behalf to be bound by such provisions. Each holder of this Security hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture
and waives reliance by such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Trustee. The provisions of this Security are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be signed in accordance with Section 2.3 of the Base Indenture.
|
|
| |
NETFLIX, INC.
|
| |
By:
|
|
| |
|
Name:
|
| |
|
Title:
|
CERTIFICATE OF AUTHENTICATION
This is one of the 4.90% Senior Notes due 2034 issued by Netflix, Inc. of the series designated therein referred to in the within-
mentioned Indenture.
|
|
| |
COMPUTERSHARE TRUST COMPANY,
NATIONAL ASSOCIATION
|
| |
as Trustee
|
| |
By:
|
|
| |
|
Authorized Signatory
|
Netflix, Inc.
4.90% Senior Notes due 2034
This security is one of a duly authorized series of debt securities of Netflix, Inc., a Delaware corporation (the “Company”), issued or to be issued in one
or more series under and pursuant to an Indenture for the Company’s unsubordinated debt securities, dated as of July 29, 2024 (the “Base Indenture”), duly executed and delivered by and between the Company and Computershare Trust Company, National
Association (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of August 1, 2024 (the “Supplemental Indenture”), by and between the Company and the Trustee. The Base Indenture as supplemented and amended by the
Supplemental Indenture is referred to herein as the “Indenture.” By the terms of the Base Indenture, the debt securities issuable thereunder are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects
as provided in the Base Indenture. This security is one of the series designated on the face hereof (individually, a “Security,” and collectively, the “Securities”), and reference is hereby made to the Indenture for a description of the rights,
limitations of rights, obligations, duties, immunities and indemnities of the Trustee, the Company and the holders of the Securities (the “Securityholders”). Capitalized terms used herein and not otherwise defined shall have the meanings given
them in the Base Indenture or the Supplemental Indenture, as applicable.
1.
Interest. The Company promises to pay interest on the principal amount of this Security at an annual rate of 4.90%. The Company will pay interest semi-annually on February 15 and August 15 of each year (each such
day, an “Interest Payment Date”). If any Interest Payment Date, redemption date or maturity date of this Security is not a Business Day, then payment of interest or principal (and premium, if any) shall be made on the next succeeding Business
Day with the same force and effect as if made on the date such payment was due, and no interest shall accrue for the period after such date to the date of such payment on the next succeeding Business Day. Interest on the Securities will accrue
from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid, from the date of issuance; provided that, if there is no existing Default in the payment of interest, and if this Security is
authenticated between a regular record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; and provided, further, that the first Interest
Payment Date shall be February 15, 2025. Interest will be calculated on the basis of a 360-day year of twelve 30-day months.
2.
Method of Payment. The Company will pay interest on the Securities (except defaulted interest), if any, to the persons in whose name such Securities are registered at the close of business on the regular record
date referred to on the facing page of this Security for such interest installment. In the event that the Securities or a portion thereof are called for redemption or there is a Change of Control Offer, and the Optional Redemption Date or the
Change of Control Payment Date, as applicable, is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Securities will instead be paid upon presentation and
surrender of such Securities as provided in the Indenture.
The principal of and the interest on the Securities shall be payable in the coin or currency of the United States of America that at the time is legal
tender for public and private debt, at the office or agency of the Company maintained for that purpose in accordance with the Indenture.
3.
Paying Agent and Security Registrar. Initially, the Trustee will act as paying agent and security registrar. The Company may change or appoint any paying agent or security registrar without notice to any Securityholder.
The Company or any of their subsidiaries may act in any such capacity.
4.
Indenture. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (“TIA”) as in effect on the date the Indenture is
qualified. The Securities are subject to all such terms, and Securityholders are referred to the Indenture and TIA for a statement of such terms. The Securities are unsecured general obligations of the Company and constitute the series
designated on the face hereof as the “4.90% Senior Notes due 2034”, initially limited to $1,000,000,000 in aggregate principal amount. The Company will furnish to any Securityholder upon written request and without charge a copy of the Base
Indenture and the Supplemental Indenture. Requests may be made to: Netflix, Inc. 121 Albright Way, Los Gatos, California, 95032. In the event of any conflict between the terms of the Indenture and this Note, the terms of the Indenture shall
govern.
5.
Redemption. The Securities may be redeemed at the option of the Company prior to the maturity date, as provided in Section 1.3 of the Supplemental Indenture.
The Company shall not be required to make sinking fund payments with respect to the Securities.
6.
Change of Control Triggering Event. Upon the occurrence of a Change of Control Triggering Event, unless the Company has exercised its right to redeem this Security in full or the Company has defeased this Security
or satisfied and discharged this Security, the holder of this Security will have the right to require that the Company purchase all or a portion, (such principal amount to be equal to $2,000 or any integral multiple of $1,000 in excess of
$2,000), of this Security at a purchase price equal to 101% of the principal amount repurchased plus accrued and unpaid interest, if any, on the amount to be repurchased to the date of purchase. Within 30 days following any Change of Control
Triggering Event, the Company shall send, by first class mail, a notice to each Holder, in accordance with Section 1.4(a)(1) of the Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control
Offer.
7.
Denominations, Transfer, Exchange. The Securities are in registered form without coupons in the denominations of $2,000 or any integral multiple of $1,000 in excess thereof. The transfer of Securities may be registered
and Securities may be exchanged as provided in the Indenture. The Securities may be presented for exchange or for registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company
or the security registrar) at the office of the security registrar or at the office of any transfer agent designated by the Company for such purpose. No service charge will be made for any registration of transfer or exchange, but a
Securityholder may be required to pay any applicable taxes or other governmental charges. If the Securities are to be redeemed, the Company will not be required to: (i) issue, register the transfer of, or exchange any Security during a period
beginning at the opening of business 15 days before the day of mailing of a notice of redemption of less than all of the outstanding Securities of the same series and ending at the close of business on the day of such mailing; (ii) register the
transfer of or exchange any Security of any series or portions thereof selected for redemption, in whole or in part, except the unredeemed portion of any such Security being redeemed in part; nor (iii) register the transfer of or exchange of a
Security of any series between the applicable record date and the next succeeding Interest Payment Date.
8.
Persons Deemed Owners. The registered Securityholder may be treated as its owner for all purposes.
9.
Repayment to the Company. Subject to applicable escheatment laws, any funds or governmental obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of,
premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for at least one year after the date upon which the principal of, premium, if any, or interest on
such Securities shall have respectively become due and payable, shall, upon request of the Company, be repaid to the Company, or (if then held by the Company) shall be discharged from such trust. After return to the Company, holders entitled
to the money or securities must look to the Company, as applicable, for payment as unsecured general creditors.
10.
Amendments, Supplements and Waivers. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the
holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the holders of a majority in principal amount of the Securities at the time outstanding of each series to
be affected. The Indenture also contains provisions permitting the holders of a majority in principal amount of the Securities of each series at the time outstanding, on behalf of the holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
11.
Defaults and Remedies. If an Event of Default with respect to the securities of a series issued pursuant to the Supplemental Indenture occurs and is continuing, the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities of such series then outstanding, by notice in writing to the Company (and to the Trustee if notice is given by such holders), may declare the unpaid principal of, premium, if any, and accrued interest, if any,
due and payable immediately. Subject to the terms of the Indenture, if an Event of Default under the Indenture shall occur and be continuing, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at
the request or direction of any of the holders, unless such holders have offered the Trustee indemnity satisfactory to it. Upon satisfaction of certain conditions set forth in the Indenture, the holders of a majority in principal amount of the
outstanding Securities of such series issued pursuant to the Supplemental Indenture will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series.
12.
Trustee, Paying Agent and Security Registrar May Hold Securities. The Trustee, subject to certain limitations imposed by the TIA, or any paying agent or security registrar, in its individual or any other capacity, may
become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, paying agent or security registrar.
13.
No Recourse Against Others. No recourse under or upon any obligation, covenant or agreement of the Indenture, or of any Security, or for any claim based thereon or otherwise in respect hereof or thereof, shall be had
against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that the Indenture and the obligations issued hereunder and thereunder are solely
corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any predecessor or successor corporation, or
any of them, because of the creation of the indebtedness authorized by the Indenture, or under or by reason of the obligations, covenants or agreements contained in the Indenture or in the Securities or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness authorized by the Indenture, or under or by reason of the obligations, covenants or agreements contained in the Indenture or in the Securities or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the acceptance of the Securities.
14.
Discharge of Indenture. The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.
15.
Authentication. This Security shall not be valid until the Trustee signs the certificate of authentication attached to the other side of this Security.
16.
Abbreviations. Customary abbreviations may be used in the name of a Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
17.
Governing Law. The Base Indenture, the Supplemental Indenture and this Security shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in
accordance with the laws of said State.
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security to
|
|
|
(Insert assignee’s soc. sec. or tax I.D. no.)
|
|
|
|
|
|
|
|
|
|
(Print or type assignee’s name, address and zip code)
|
and irrevocably appoint agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date:
| |
|
|
|
| |
|
|
Your Signature:
|
| |
|
|
|
| |
|
|
(Sign exactly as your name appears on the face of this Security)
|
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 1.4(a) of the Supplemental Indenture, check the
box:
☐
1.4(a) Change of Control Triggering Event
If you want to elect to have only part of this Security purchased by the Company pursuant to Section 1.4(a) of the Supplemental
Indenture, state the amount: $ .
Date:
| |
|
| |
Your Signature:
|
|
| |
(Sign exactly as your name appears on the other side of the Security)
Tax I.D. number
|
|
Signature Guarantee:
|
|
|
|
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)
|
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
|
Date of
Exchange
|
|
Amount of decrease in principal amount of this Global Security
|
|
Amount of increase in principal amount of this Global Security
|
|
Principal amount of this Global Security following such decrease or increase
|
|
Signature of authorized signatory of Trustee or Securities Custodian
|
EXHIBIT B
FORM OF 5.40% SENIOR NOTES DUE 2054
[Insert the Global Security legend, if applicable]
5.40% SENIOR NOTES DUE 2054
|
No. [ ]
CUSIP No. 64110LBA3
|
$[ ]
|
NETFLIX, INC.
promises to pay to [ ] or registered assigns, the principal sum of [ ] Dollars (as may be adjusted by the increased or decreased as reflected on the
Schedule of Increases or Decreases in the Global Security attached hereto) on August 15, 2054.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Each holder of this Security (as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described
herein, and authorizes and directs the Trustee described herein on such holder’s behalf to be bound by such provisions. Each holder of this Security hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture
and waives reliance by such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Trustee. The provisions of this Security are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be signed in accordance with Section 2.3 of the Base Indenture.
CERTIFICATE OF AUTHENTICATION
This is one of the 5.40% Senior Notes due 2054 issued by Netflix, Inc. of the series designated therein referred to in the within-
mentioned Indenture.
|
|
| |
COMPUTERSHARE TRUST COMPANY,
NATIONAL ASSOCIATION
|
| |
as Trustee
|
| |
By:
|
|
| |
|
Authorized Signatory
|
Netflix, Inc.
5.40% Senior Notes due 2054
This security is one of a duly authorized series of debt securities of Netflix, Inc., a Delaware corporation (the “Company”), issued or to be issued in one
or more series under and pursuant to an Indenture for the Company’s unsubordinated debt securities, dated as of July 29, 2024 (the “Base Indenture”), duly executed and delivered by and between the Company and Computershare Trust Company, National
Association (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of August 1, 2024 (the “Supplemental Indenture”), by and between the Company and the Trustee. The Base Indenture as supplemented and amended by the
Supplemental Indenture is referred to herein as the “Indenture.” By the terms of the Base Indenture, the debt securities issuable thereunder are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects
as provided in the Base Indenture. This security is one of the series designated on the face hereof (individually, a “Security,” and collectively, the “Securities”), and reference is hereby made to the Indenture for a description of the rights,
limitations of rights, obligations, duties, immunities and indemnities of the Trustee, the Company and the holders of the Securities (the “Securityholders”). Capitalized terms used herein and not otherwise defined shall have the meanings given
them in the Base Indenture or the Supplemental Indenture, as applicable.
1.
Interest. The Company promises to pay interest on
the principal amount of this Security at an annual rate of 5.40%. The Company will pay interest semi-annually on February 15 and August 15 of each year (each such day, an “Interest Payment Date”). If any Interest Payment Date, redemption date or
maturity date of this Security is not a Business Day, then payment of interest or principal (and premium, if any) shall be made on the next succeeding Business Day with the same force and effect as if made on the date such payment was due, and no
interest shall accrue for the period after such date to the date of such payment on the next succeeding Business Day. Interest on the Securities will accrue from the most recent date to which interest has been paid or duly provided for or, if no
interest has been paid, from the date of issuance; provided that, if there is no existing Default in the payment of interest, and if this Security is authenticated between a regular record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; and provided, further, that the first Interest Payment Date shall be February 15, 2025. Interest will be calculated on the basis of a 360-day year of
twelve 30-day months.
2.
Method of Payment. The Company will pay interest on
the Securities (except defaulted interest), if any, to the persons in whose name such Securities are registered at the close of business on the regular record date referred to on the facing page of this Security for such interest installment. In
the event that the Securities or a portion thereof are called for redemption or there is a Change of Control Offer, and the Optional Redemption Date or the Change of Control Payment Date, as applicable, is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Securities will instead be paid upon presentation and surrender of such Securities as provided in the Indenture.
The principal of and the interest on the Securities shall be payable in the coin or currency of the United States of America that at the time is legal
tender for public and private debt, at the office or agency of the Company maintained for that purpose in accordance with the Indenture.
3.
Paying Agent and Security Registrar. Initially, the
Trustee will act as paying agent and security registrar. The Company may change or appoint any paying agent or security registrar without notice to any Securityholder. The Company or any of their subsidiaries may act in any such capacity.
4.
Indenture. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (“TIA”) as in effect on the date the Indenture is qualified. The Securities are subject to all such terms, and Securityholders are
referred to the Indenture and TIA for a statement of such terms. The Securities are unsecured general obligations of the Company and constitute the series designated on the face hereof as the “5.40% Senior Notes due 2054”, initially limited to
$800,000,000 in aggregate principal amount. The Company will furnish to any Securityholder upon written request and without charge a copy of the Base Indenture and the Supplemental Indenture. Requests may be made to: Netflix, Inc. 121 Albright
Way, Los Gatos, California, 95032. In the event of any conflict between the terms of the Indenture and this Note, the terms of the Indenture shall govern.
5.
Redemption. The Securities may be redeemed at the option
of the Company prior to the maturity date, as provided in Section 1.3 of the Supplemental Indenture.
The Company shall not be required to make sinking fund payments with respect to the Securities.
6.
Change of Control Triggering Event. Upon the
occurrence of a Change of Control Triggering Event, unless the Company has exercised its right to redeem this Security in full or the Company has defeased this Security or satisfied and discharged this Security, the holder of this Security will
have the right to require that the Company purchase all or a portion, (such principal amount to be equal to $2,000 or any integral multiple of $1,000 in excess of $2,000), of this Security at a purchase price equal to 101% of the principal amount
repurchased plus accrued and unpaid interest, if any, on the amount to be repurchased to the date of purchase. Within 30 days following any Change of Control Triggering Event, the Company shall send, by first class mail, a notice to each Holder,
in accordance with Section 1.4(a)(1) of the Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer.
7.
Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in the denominations of $2,000 or any integral multiple of $1,000 in excess thereof. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Securities may
be presented for exchange or for registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company or the security registrar) at the office of the security registrar or at the office
of any transfer agent designated by the Company for such purpose. No service charge will be made for any registration of transfer or exchange, but a Securityholder may be required to pay any applicable taxes or other governmental charges. If
the Securities are to be redeemed, the Company will not be required to: (i) issue, register the transfer of, or exchange any Security during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption
of less than all of the outstanding Securities of the same series and ending at the close of business on the day of such mailing; (ii) register the transfer of or exchange any Security of any series or portions thereof selected for redemption, in
whole or in part, except the unredeemed portion of any such Security being redeemed in part; nor (iii) register the transfer of or exchange of a Security of any series between the applicable record date and the next succeeding Interest Payment
Date.
8.
Persons Deemed Owners. The registered Securityholder may
be treated as its owner for all purposes.
9.
Repayment to the Company. Subject to applicable
escheatment laws, any funds or governmental obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of, premium, if any, or interest on the Securities of a particular series that
are not applied but remain unclaimed by the holders of such Securities for at least one year after the date upon which the principal of, premium, if any, or interest on such Securities shall have respectively become due and payable, shall, upon
request of the Company, be repaid to the Company, or (if then held by the Company) shall be discharged from such trust. After return to the Company, holders entitled to the money or securities must look to the Company, as applicable, for payment
as unsecured general creditors.
10.
Amendments, Supplements and Waivers. The Indenture
permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the holders of the Securities of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the holders of a majority in principal amount of the Securities at the time outstanding of each series to be affected. The Indenture also contains provisions permitting the holders of a
majority in principal amount of the Securities of each series at the time outstanding, on behalf of the holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
11.
Defaults and Remedies. If an Event of Default with
respect to the securities of a series issued pursuant to the Supplemental Indenture occurs and is continuing, the Trustee or the holders of not less than 25% in aggregate principal amount of the Securities of such series then outstanding, by
notice in writing to the Company (and to the Trustee if notice is given by such holders), may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and payable immediately. Subject to the terms of the Indenture, if
an Event of Default under the Indenture shall occur and be continuing, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the holders, unless such holders have
offered the Trustee indemnity satisfactory to it. Upon satisfaction of certain conditions set forth in the Indenture, the holders of a majority in principal amount of the outstanding Securities of such series issued pursuant to the Supplemental
Indenture will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series.
12.
Trustee, Paying Agent and Security Registrar May Hold Securities.
The Trustee, subject to certain limitations imposed by the TIA, or any paying agent or security registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not
Trustee, paying agent or security registrar.
13.
No Recourse Against Others. No recourse under or upon any
obligation, covenant or agreement of the Indenture, or of any Security, or for any claim based thereon or otherwise in respect hereof or thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that the Indenture and the obligations issued hereunder and thereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or
shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness authorized by the Indenture, or under
or by reason of the obligations, covenants or agreements contained in the Indenture or in the Securities or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director as such, because of the creation of the indebtedness authorized by the Indenture, or under or by reason of the
obligations, covenants or agreements contained in the Indenture or in the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the acceptance of the Securities.
14.
Discharge of Indenture. The Indenture contains certain
provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.
15.
Authentication. This Security shall not be valid until
the Trustee signs the certificate of authentication attached to the other side of this Security.
16.
Abbreviations. Customary abbreviations may be used in the
name of a Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform
Gifts to Minors Act).
17.
Governing Law. The Base Indenture, the Supplemental
Indenture and this Security shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State.
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security to
|
|
|
(Insert assignee’s soc. sec. or tax I.D. no.)
|
|
|
|
|
|
|
|
|
|
(Print or type assignee’s name, address and zip code)
|
and irrevocably appoint agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date:
| |
|
| |
Your Signature:
|
| |
|
| |
(Sign exactly as your name appears on the face of this Security)
|
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 1.4(a) of the Supplemental Indenture, check the
box:
☐
1.4(a) Change of Control Triggering Event
If you want to elect to have only part of this Security purchased by the Company pursuant to Section 1.4(a) of the Supplemental
Indenture, state the amount: $ ____.
Date:
| |
|
| |
Your Signature:
|
|
| |
(Sign exactly as your name appears on the other side of the Security)
Tax I.D. number
|
|
Signature Guarantee:
|
|
|
|
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)
|
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
|
Date of Exchange
|
|
Amount of decrease in principal amount of this Global Security
|
|
Amount of increase in principal amount of this Global Security
|
|
Principal amount of this Global Security following such decrease or increase
|
|
Signature of authorized signatory of Trustee or Securities Custodian
|