Exhibit 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NETFLIX, INC.
a Delaware corporation
Netflix, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "General Corporation Law") hereby
certifies as follows:
1. That this corporation was originally incorporated on August 29, 1997
under the name Kibble, Inc., pursuant to the General Corporation Law.
2. Pursuant to Sections 242 and 228 of the General Corporation Law of
the State of Delaware, the amendments and restatement herein set forth have been
duly approved by the Board of Directors and stockholders of NetFlix.com, Inc.
3. Pursuant to Section 245 of the General Corporation Law, this Amended
and Restated Certificate of Incorporation (this "Certificate") restates and
integrates and further amends the provisions of the Amended and Restated
Certificate of Incorporation of this corporation.
4. The text of the Amended and Restated Certificate of Incorporation is
hereby amended and restated in its entirety as follows:
ARTICLE I
---------
The name of this corporation is Netflix, Inc. (the "corporation").
ARTICLE II
----------
The address of the registered office of the corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, Delaware 19801. The name of its registered
agent at such address is The Corporation Trust Company.
ARTICLE III
-----------
The nature of the business or purposes to be conducted by the
corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware, as the same
exists or may hereafter be amended.
ARTICLE IV
----------
The corporation is authorized to issue two classes of stock, to be
designated, respectively, "Common Stock" and "Preferred Stock". The total number
of shares which the corporation shall have authority to issue is 160,000,000
consisting of 150,000,000 shares of Common Stock, par value $0.001 per share,
and 10,000,000 shares of Preferred Stock, par value $0.001 per share.
The Board of Directors of the corporation (the "Board") is authorized,
subject to any limitations prescribed by law, to provide for the issuance of
shares of Preferred Stock in series, and to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences, and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof.
Each outstanding share of Common Stock shall entitle the holder thereof to
one vote on each matter properly submitted to the stockholders of the
corporation for their vote; provided, however, that, except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any
amendment to this Certificate of Incorporation (including any certificate of
designation of Preferred Stock relating to any series of Preferred Stock) that
relates solely to the terms of one or more outstanding series of Preferred Stock
if the holders of such affected series are entitled, either separately or
together as a class with the holders of one or more other such series, to vote
thereon by law or pursuant to this Certificate of Incorporation (including any
certificate of designation of Preferred Stock relating to any series of
Preferred Stock).
ARTICLE V
---------
The following provisions are inserted for the management of the business
and the conduct of the affairs of the corporation, and for further definition,
limitation and regulation of the powers of the corporation and of its directors
and stockholders:
A. The business and affairs of the corporation shall be managed by or
under the direction of the Board. In addition to the powers and authority
expressly conferred upon them by statute or by this Certificate of Incorporation
or the Bylaws of the corporation, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the corporation.
B. The directors of the corporation need not be elected by written
ballot unless the Bylaws so provide.
C. Any action required or permitted to be taken by the stockholders of
the corporation must be effected at a duly called annual or special meeting of
stockholders of the corporation and may not be effected by any consent in
writing by such stockholders.
D. Special meetings of stockholders of the corporation may be called
only by the Chairman of the Board, the Chief Executive Officer, the President or
by the Board acting pursuant to a resolution adopted by a majority of the Whole
Board, and any power of stockholders to call a special meeting is specifically
denied. Only such business shall be considered at a special meeting of
stockholders as shall have been stated in the notice for such meeting. For
purposes of this Certificate of Incorporation, the term "Whole Board" shall mean
the total number of authorized directors of the corporation whether or not there
exist any vacancies in previously authorized directorships.
-2-
ARTICLE VI
----------
A. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, the number of
directors shall be fixed from time to time exclusively by the Board pursuant to
a resolution duly adopted by a majority of the Board. The directors, other than
those who may be elected by the holders of any series of Preferred Stock under
specified circumstances, shall be classified, with respect to the time for which
they severally hold office, into three classes, as nearly equal in number as
possible, one class to be originally elected for a term expiring at the annual
meeting of stockholders to be held in 2003, another class to be originally
elected for a term expiring at the annual meeting of stockholders to be held in
2004, and another class to be originally elected for a term expiring at the
annual meeting of stockholders to be held in 2005, with each class to hold
office until its successor is duly elected and qualified. At each succeeding
annual meeting of stockholders, directors elected to succeed those directors
whose terms expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election.
B. Subject to the rights of the holders of any series of Preferred
Stock then outstanding and unless the Board otherwise determines, newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies in the Board resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall, unless otherwise
provided by law or by resolution of the Board, be filled only by a majority vote
of the directors then in office, whether or not less than a quorum, and
directors so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of office of the class to which they have been
chosen expires. No reduction in the authorized number of directors shall have
the effect of removing any director before such director's term of office
expires.
C. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the corporation shall be given in the manner provided in the
Bylaws of the corporation.
D. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, unless otherwise restricted by statue, by the
Certificate of Incorporation or the Bylaws of the corporation, any director, or
all of the directors, may be removed from the Board, but only for cause and only
by the affirmative vote of the holders of at least 66 2/3% of the voting power
of all of the then outstanding shares of capital stock of the corporation then
entitled to vote at the election of directors, voting together as a single
class.
ARTICLE VI
----------
The Board is expressly empowered to adopt, amend or repeal any of the
Bylaws of the Corporation. Any adoption, amendment or repeal of the Bylaws of
the corporation by the Board shall require the approval of a majority of the
Whole Board. The stockholders shall also have power to adopt, amend or repeal
the Bylaws of the corporation; provided, however, that, in addition to any vote
of the holders of any class or series of stock of the corporation required by
law or by this Certificate of Incorporation, the affirmative vote of the holders
of at least 66 2/3% of the voting power of the then outstanding shares of voting
stock entitled to vote generally in the election of
-3-
directors, voting together as a single class, shall be required to adopt, amend
or repeal all or any portion of Article II, Section 3.2, Section 3.3, Section
3.4, Section 3.15, Article VI or Article IX of the Bylaws of the corporation.
ARTICLE VII
-----------
A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (a) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the General Corporation Law of
Delaware, or (d) for any transaction from which the director derived an improper
personal benefit. If the General Corporation Law of Delaware is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the corporation
shall be eliminated or limited to the fullest extent permitted by the General
Corporation Law of Delaware as so amended.
The corporation shall indemnify to the fullest extent permitted by law any
person made or threatened to be made a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that he,
she, his or her testator or intestate is or was a director, officer, employee or
agent of the corporation (or any predecessor thereof), or serves or served at
any other corporation, partnership, joint venture, trust or other enterprise as
a director, officer, employee or agent at the request of the corporation (or any
predecessor).
Any amendment, repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a director of the corporation
existing at the time of such amendment, repeal or modification.
ARTICLE VIII
------------
The corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner prescribed by the
laws of the State of Delaware and all rights conferred upon stockholders are
granted subject to this reservation; provided, however, that, notwithstanding
any other provision of this Certificate of Incorporation, or any provision of
law that might otherwise permit a lesser vote or no vote, but in addition to any
vote of the holders of any class or series of the stock of this corporation
required by law or by this Certificate of Incorporation, the affirmative vote of
the holders of at least 66 2/3% of the voting power of the then outstanding
shares of voting stock entitled to vote generally in the election of directors,
voting together as a single class, shall be required to amend or repeal this
Article IX, Article V, Article VI, Article VII or Article VIII.
-4-
IN WITNESS WHEREOF, Netflix, Inc. has caused this Amended and Restated
Certificate of Incorporation to be executed by its President and Chief Executive
Officer this ______________, 2002.
NETFLIX, INC.
___________________________________
Reed Hastings
President and Chief Executive
Officer
-5-