Netflix Inc 8-K, filed Dec 8, 2023
Netflix Inc (NFLX)
8-K
2023-12-08
For: 2023-12-06
View Original
Added on
April 02, 2026
About this 8-K
Netflix Inc filed this 8-K on December 8, 2023, reporting on events of December 6, 2023.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
__________________________________
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
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(Exact name of registrant as specified in its charter)
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| (State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) | ||||||||||||
| (Address of principal executive offices) | (Zip Code) | |||||||||||||
(408 ) 540-3700
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
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Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
The Compensation Committee of the Board of Directors (the “Committee”) of Netflix, Inc. (the “Company”) approved the 2024 executive compensation program for the Company’s co-Chief Executive Officers, Ted Sarandos and Greg Peters; Executive Chairman, Reed Hastings; Chief Financial Officer, Spencer Neumann; and Chief Legal Officer, David Hyman, who are the Company’s executive officers as defined under Securities Exchange Act of 1934 Rule 3b-7 (the “Executive Officers”). The 2024 executive compensation program reflects several key changes for the Executive Officers, compared with 2023.
•Eliminated Executive Officers’ Ability to Allocate Compensation Between Cash and Stock Options: Historically, Executive Officers have been permitted to allocate compensation to cash salary and stock options. The Committee determined to eliminate this program feature to address shareholder concerns that executives could choose all cash compensation.
•Set Fixed Base Salaries for the Executive Officers: The Committee established annual base salaries at $3 million for the co-Chief Executive Officers, $100,000 for the Executive Chairman, and $1.5 million for the other Executive Officers.
•Expanded Participation in Annual Bonus Program to all Executive Officers: The Committee expanded participation in the annual performance-based cash bonus program (the “Bonus Program”) under the Company’s Amended and Restated Performance Bonus Plan (the “Bonus Plan”) to all Executive Officers, with a target bonus of 200% of the Executive Officer’s annual base salary. Awards under the Bonus Plan will only be earned after achievement of specified performance goals. Any actual amounts that may be earned under the Bonus Plan may differ from the Target Bonuses set forth below, based on the terms of the Bonus Plan and actual performance against the performance goals. See the Bonus Plan filed with the U.S. Securities and Exchange Commission as Exhibit 10.1 to Form 8-K on December 9, 2022, the terms of which are incorporated by reference herein.
•Determined to Grant RSUs and PSUs in lieu of Stock Options to Executive Officers: For the 2024 executive compensation program for Executive Officers, the Committee approved grants of an equally-weighted mix of time-based restricted stock unit (“RSU”) awards and performance-based restricted stock unit (“PSU”) awards (at target) under the Netflix, Inc. 2020 Stock Plan (the “2020 Stock Plan”, and such awards, the “2024 Executive Officer RSUs and PSUs”). The 2024 Executive Officer RSUs and PSUs are anticipated to have a grant date in January 2024 and their award target dollar values are set forth in the table below.
◦Generally subject to each Executive Officer’s continued employment, the shares subject to the 2024 Executive Officer RSUs will vest quarterly over a three-year period. However, the 2024 Executive Officer RSUs will (i) accelerate in full in connection with an Executive Officer’s termination of employment without cause or resignation for good reason during a change in control protection period or the Executive Officer’s death or disability (with the terms “cause”, “change in control protection period”, “disability” and “good reason” defined in the RSU Award Agreement (as defined below)) and (ii) accelerate on a pro-rata basis in connection with the Executive Officer’s termination of employment without cause outside of a change in control protection period.
◦The shares subject to the PSUs will vest as to 0% to 200% of the target number of PSUs, depending on achievement of certain performance goals during the relevant performance periods and satisfaction of continued service requirements. The Committee selected total shareholder return (“TSR”) relative to the TSR of the companies in the S&P 500 as the performance metric. 1/3 of the target PSUs shall vest on each of December 31, 2024, December 31, 2025 and December 31, 2026, based on the Company’s relative TSR performance during performance periods that begin on January 1, 2024 and end on December 31, 2024, December 31, 2025 and December 31, 2026, respectively, provided that the 2024 Executive Officer PSUs will (i) accelerate on a pro-rata basis in connection with the Executive Officer’s termination of employment without cause outside of a change in control protection period based on actual performance as of the termination date, (ii) accelerate and pay out based on the greater of target and actual performance as of the change in control in connection with the Executive Officer’s termination of employment without cause or resignation for good reason during a change in control protection period, (iii) in connection with a change in control under certain circumstances, be deemed achieved at the greater of target and actual performance as of the change in control, convert into RSUs, and remain subject to continued time-vesting requirements, with a certain portion of the RSUs accelerated, (iv) in connection with a change in control under certain circumstances, be deemed achieved at the greater of target and actual performance as of the change in control
and accelerate in full, and (v) accelerate in full generally based on actual performance as of the Executive Officer’s death or disability (with the terms “cause”, “change in control”, “change in control protection period”, “disability” and “good reason” defined in the PSU Award Agreement (as defined below)).
The 2024 Total Target Compensation for the Executive Officers will be as follows:
| Name and Title | Annual Base Salary ($) | Target Bonus Under the Bonus Plan ($) | RSU Award Target Dollar Value ($) | PSU Award Target Dollar Value ($) | Total Target Compensation ($) | |||||||||||||||||||||||||||
| Ted Sarandos, Co-Chief Executive Officer and President | 3,000,000 | 6,000,000 | 15,500,000 | 15,500,000 | 40,000,000 | |||||||||||||||||||||||||||
| Greg Peters, Co-Chief Executive Officer and President | 3,000,000 | 6,000,000 | 15,500,000 | 15,500,000 | 40,000,000 | |||||||||||||||||||||||||||
| Reed Hastings, Executive Chairman | 100,000 | 200,000 | 350,000 | 350,000 | 1,000,000 | |||||||||||||||||||||||||||
| Spencer Neumann, Chief Financial Officer | 1,500,000 | 3,000,000 | 5,250,000 | 5,250,000 | 15,000,000 | |||||||||||||||||||||||||||
| David Hyman, Chief Legal Officer and Secretary | 1,500,000 | 3,000,000 | 3,250,000 | 3,250,000 | 11,000,000 | |||||||||||||||||||||||||||
Form of RSU and PSU Award Agreements
On December 6, 2023, the Committee approved a form of Restricted Stock Unit Award Agreement (the “RSU Award Agreement”) and form of Performance-Based Restricted Stock Unit Award Agreement (the “PSU Award Agreement”) to be used in connection with the grant of RSU awards and PSU awards to the Company’s Executive Officers. A copy of the RSU Award Agreement and PSU Award Agreement are attached hereto as Exhibit 10.1 and Exhibit 10.2, respectively, and are incorporated into this Item 5.02 by reference. The Committee approved the grants of the 2024 Executive Officer RSUs and PSUs under the form of the RSU Award Agreement and the PSU Award Agreement, respectively.
The specific vesting schedule, amount of the award, and other terms of any RSU award granted pursuant to the 2020 Stock Plan and the RSU Award Agreement will be determined on a grant-by-grant basis. The number of shares issuable upon vesting of RSUs is fixed on the date of grant and is not dependent on Company performance.
The specific performance goals and other terms of any PSU awards granted pursuant to the 2020 Stock Plan and the PSU Award Agreement, including the amount of the award, the applicable vesting schedule, performance goals, and the performance period(s), will be determined on a grant-by-grant basis. Any such PSU awards will be subject to the terms of the 2020 Stock Plan and approved by the Committee. The performance goals will be determined by the Committee in accordance with the 2020 Stock Plan and may include, without limitation: (a) earnings per share, (b) profit, (c) return on equity, (d) revenue, (e) subscriber metrics, and (f) total shareholder return. Any criteria used may be measured, as applicable, (i) in absolute terms, (ii) in relative terms (including, but not limited, the passage of time and/or against other companies or financial metrics), (iii) on a per share and/or share per capita basis, (iv) against the performance of the Company as a whole or against particular segments or products of the Company and/or (v) on a pre-tax or after-tax basis.
Executive Officer Severance Plan and Amended and Restated Executive Severance and Retention Incentive Plan
The Committee also approved a new severance plan for the Executive Officers (the “Executive Officer Severance Plan”) and amended the Executive Severance and Retention Incentive Plan (the “Severance Plan”) to exclude individuals who are eligible to participate in the Executive Officer Severance Plan, in each case, effective as of January 1, 2024. A copy of the Executive Officer Severance Plan and the amended and restated Severance Plan are attached hereto as Exhibit 10.3 and Exhibit 10.4, respectively, the terms of which are incorporated by reference herein.
Effective as of January 1, 2024, contingent on the Executive Officers’ execution of a written consent to be excluded from the Severance Plan, the Executive Officers will participate in the Executive Officer Severance Plan, which provides certain benefits to the Executive Officers in connection with qualifying terminations of their employment. The Executive Officer Severance Plan does not provide for any single-trigger change in control benefits. If participants in the Executive Officer Severance Plan experience a termination of employment from the Company without cause or resign for good reason, in each case, within 3 months prior to or 24 months following a change in control of the Company (the “change in control
protection period”), they are eligible to receive the following, payable no later than two and one half months following the later of the date of their termination of employment or a change in control (i) a cash lump sum equal to two times the sum of their (a) annual base salary and (b) target annual bonus under the Bonus Plan; (ii) a pro-rata lump sum cash bonus, based on target performance under the Bonus Plan, but pro-rated for the number of days that the participant was employed during the performance period; and (iii) a cash lump sum for twenty-four months of continued health, dental and vision benefits for the participant and their covered dependents.
Alternatively, if a participant in the Executive Officer Severance Plan has their employment terminated without cause outside of the change in control protection period, they will be entitled to receive (i) a lump sum cash payment equal to the sum of their (a) annual base salary, (b) target annual bonus under the Bonus Plan and (c) target annual LTI opportunity for RSUs and PSUs (at target), payable no later than two and one half months following their termination of employment and (ii) a pro-rata bonus under the Bonus Plan, based on actual performance as determined at the end of the performance period and paid at the time when bonuses are paid to actively employed executives, but pro-rated for the number of days that the participant was employed during the performance period. Each of the terms “change in control”, “cause” and “good reason” are defined in the Executive Officer Severance Plan.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
| Exhibit Number | Description of Exhibit | ||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | ||||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| NETFLIX, INC. | ||||||||
| Date: | December 8, 2023 | |||||||
| /s/ David Hyman | ||||||||
| David Hyman | ||||||||
| Chief Legal Officer and Secretary | ||||||||
Exhibit 10.1
NETFLIX, INC.
2020 STOCK PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
Unless specifically indicated in this Restricted Stock Unit Award Agreement (this “Agreement”), the terms used in this Agreement will have the meanings ascribed to them in the 2020 Stock Plan (the “Plan”).
I. NOTICE OF RESTRICTED STOCK UNIT GRANT
You (also known as “Grantee”) have been granted an award of Restricted Stock Units (the “Restricted Stock Units”), subject to the terms and conditions of the Plan and this Agreement. Certain details about the Restricted Stock Units granted hereunder, including the number of Restricted Stock Units granted, the date of grant and the grant number, shall be reflected in your stock plan administration account.
Vesting Schedule:
[ ]
II. AGREEMENT
A. Grant of Restricted Stock Units.
All Restricted Stock Units granted to you hereunder by the Administrator are subject to all of the terms and conditions of the Plan, which is incorporated herein by reference. For example, but not by way of limitation, the Plan contains important provisions regarding treatment of Restricted Stock Units in the event of a Change in Control of the Company. Notwithstanding any contrary provision of this Agreement, in the event of a conflict between the terms and conditions of the Plan and the terms and conditions of this Agreement, the terms and conditions of the Plan shall prevail.
B. Nature of Grant.
In accepting the Restricted Stock Units, you acknowledge, understand and agree that:
1.the Plan is established voluntarily by the Company, is discretionary in nature, and may be amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
2. the Restricted Stock Units, and the income from and value of same, including without limitation the Shares underlying the Restricted Stock Units, are not intended to replace any compensation owed to you by the Company or, if different, your employer (the “Employer”);
3. the Restricted Stock Units, and the income from and value of same, including without limitation the Shares underlying the Restricted Stock Units, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, holiday pay, long-service awards, pension or retirement or welfare benefits or similar payments;
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Netflix, Inc. 2020 Stock Plan – Restricted Stock Unit Award Agreement
4. the future value of the Shares underlying the Restricted Stock Units is unknown, indeterminable, and cannot be predicted with certainty;
5. no claim or entitlement to compensation or damages shall arise from forfeiture of the Restricted Stock Units;
6. unless otherwise provided in the Plan or by the Company in its discretion, the Restricted Stock Units and the benefits evidenced by this Agreement do not create any entitlement to have the Restricted Stock Units or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the Shares;
7. unless otherwise agreed with the Company, the Restricted Stock Units and the Shares underlying the Restricted Stock Units, and the income from and value of same, are not granted as consideration for, or in connection with, the service you may provide as a director of a Subsidiary; and
8. if you provide services outside the U.S.,
a) where applicable, neither the Company nor any of its Subsidiaries shall be liable for any foreign exchange rate fluctuation between your local currency and the United States Dollar that may affect the number and value of the Restricted Stock Units or of any amounts due to you pursuant to the settlement of the Restricted Stock Units or the subsequent sale of any Shares acquired upon settlement; and
b) the Restricted Stock Units and the Shares underlying the Restricted Stock Units, and the income from and value of same, are not part of normal or expected compensation for any purpose.
C. Company’s Obligation to Settle the Restricted Stock Units.
Each Restricted Stock Unit represents the right to receive one Share on the date it vests. Unless and until the Restricted Stock Units have vested in the manner set forth in Section I of this Agreement, you will have no right to settlement of any such Restricted Stock Units. Prior to actual settlement of any vested Restricted Stock Units, such Restricted Stock Units will represent an unfunded and unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.
D. Settlement.
This award of Restricted Stock Units represents the right to receive a number of Shares equal to the number of Restricted Stock Units that vest pursuant to the vesting schedule, provided that, notwithstanding anything in this Agreement to the contrary, the Restricted Stock Units may be settled in cash, Shares, or a combination of both in the Administrator’s sole discretion. Subject to Section II.F., any Restricted Stock Units that vest will be paid to Grantee (or in the event of Grantee’s death, to his or her properly designated beneficiary or estate) in whole Shares, cash or a combination thereof. Subject to the following paragraph and Section II.F., each Restricted Stock Unit that vests in accordance with Section I will be settled as soon as practicable after vesting but in each such case no later than sixty (60) days following the vesting date.
The Company will not be required to issue any certificate or certificates for Shares hereunder prior to fulfillment of all the following conditions: (a) the admission of such Shares to
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Netflix, Inc. 2020 Stock Plan – Restricted Stock Unit Award Agreement
listing on all stock exchanges on which such class of stock is then listed; (b) the completion of any registration or other qualification of such Shares under any U.S. or non-U.S. state or federal law or under the rulings or regulations of the U.S. Securities and Exchange Commission (the “SEC”) or any other regulatory body, which the Administrator, in its absolute discretion, deems necessary or advisable; (c) the obtaining of any approval or other clearance from any U.S. or non-U.S. governmental agency, which the Administrator, in its absolute discretion, determines to be necessary or advisable; and (d) the lapse of such reasonable period of time following the date of vesting as the Administrator may establish from time to time for reasons of administrative convenience. Grantee understands that the Company is under no obligation to register or qualify the Common Stock with the SEC or any other U.S. or non U.S. state or federal securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the Shares. Further, Grantee agrees that the Company shall have unilateral authority to amend the Plan and this Agreement without Grantee’s consent to the extent necessary to comply with securities or other laws applicable to the issuance of Shares.
E. Non-Transferability of Restricted Stock Units.
Unless determined otherwise by the Administrator, the Restricted Stock Units granted hereunder may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution. If the Administrator makes any of the Restricted Stock Units transferable, such Restricted Stock Units will be subject to such additional terms and conditions as the Administrator deems appropriate. The terms of the Plan and this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of Grantee.
F. Tax Consequences and Responsibilities.
1. Withholding Taxes. Grantee acknowledges that, regardless of any action taken by the Company or the Employer, the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to Grantee’s participation in the Plan and legally applicable to Grantee (“Tax-Related Items”) is and remains Grantee’s responsibility and may exceed the amount, if any, actually withheld by the Company or the Employer. Grantee further acknowledges that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Restricted Stock Units, including, but not limited to, the grant, vesting or settlement of the Restricted Stock Units, the subsequent sale of Shares acquired pursuant to the Restricted Stock Units and the receipt of any dividends on such Shares; and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Restricted Stock Units to reduce or eliminate Grantee’s liability for Tax-Related Items or achieve any particular tax result. Further, if Grantee is subject to Tax Related Items in more than one jurisdiction, Grantee acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to the relevant taxable or tax withholding event, as applicable, Grantee agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, Grantee authorizes the Company and/or the Employer, or their respective agents, at their discretion, to satisfy their withholding obligations with regard to all Tax-Related Items by (i) withholding from the proceeds of the sale of Shares otherwise deliverable to Grantee upon settlement of the Restricted Stock Units, which sale is arranged by the Company (on Grantee’s behalf pursuant to this authorization without further consent); (ii) withholding from Grantee’s wages or other cash compensation payable to Grantee by the Company and/or a Parent or Subsidiary, including any cash paid in respect of Shares underlying the Restricted Stock Units; (iii) withholding Shares to be issued upon settlement of the Restricted
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Netflix, Inc. 2020 Stock Plan – Restricted Stock Unit Award Agreement
Stock Units and otherwise deliverable to Grantee; (iv) causing Grantee to tender a cash payment; or (v) any other method of withholding determined by the Company and, to the extent required by applicable laws or the Plan, approved by the Committee.
Notwithstanding the foregoing, if Grantee is an officer of the Company subject to Section 16 of the Exchange Act (a “Section 16 Officer”), then the Company will withhold Shares to be issued upon settlement of the Restricted Stock Units in order to satisfy the minimum statutory amount required to be withheld pursuant to the Tax-Related Items with respect to such Section 16 Officer in accordance with method (iii) above, unless the use of such withholding method is impermissible or impracticable under applicable laws, in which case the withholding obligation will be satisfied by method (ii) above, provided that, in the event the Section 16 Officer has elected to satisfy the Tax-Related Items through method (i) as permitted hereunder or has previously elected a Section 16 Officer Withholding Amount (as defined below) greater than the applicable minimum statutory amount required to be withheld pursuant to the Tax-Related Items, the Company shall give effect to such election(s). The “Section 16 Officer Withholding Amount” in respect of any issuance of Shares pursuant hereto means the (i) applicable minimum statutory amount required to be withheld pursuant to the Tax-Related Items, or (ii) such greater amount, up to the sum of all applicable maximum rates, applied in respect of the applicable issuance of Shares with respect to the Section 16 Officer at such Section 16 Officer’s election.
The Company and/or the Employer may withhold or account for Tax-Related Items by considering statutory withholding rates or other withholding rates, including maximum rates applicable in Grantee’s jurisdiction(s), except as provided above for Section 16 Officers. If Tax-Related Items are withheld at a rate which exceeds Grantee’s obligation for Tax-Related Items, Grantee may receive a cash refund of any over-withheld amount not remitted to tax authorities on Grantee’s behalf and will have no entitlement to the Common Stock equivalent, or if not refunded, Grantee may seek a refund from the local tax authorities. In the event Tax-Related Items are withheld at a rate which is less than Grantee’s obligations for Tax-Related Items, Grantee may be required to pay any additional Tax-Related Items directly to the applicable tax authority or to the Company and/or the Employer. If the obligation for Tax-Related Items is satisfied by withholding Shares, for tax purposes, Grantee shall be deemed to have been issued the full number of Shares subject to the vested Restricted Stock Units, notwithstanding that a number of the Shares is held back solely for the purpose of paying the Tax-Related Items.
Finally, Grantee agrees to pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of Grantee’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if Grantee fails to comply with his or her obligations in connection with the Tax-Related Items.
2. Section 409A of the Code. The Restricted Stock Units are intended to be exempt from, or to the extent subject thereto, to comply with Section 409A of the Code, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted in accordance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, Grantee shall not be considered to have terminated employment or service with the Company, or a Parent or Subsidiary, for purposes of this Agreement and no payment shall be due to Grantee under this Agreement until Grantee would be considered to have incurred a “separation from service” from the Company, its Parent or any Subsidiary within the meaning of Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement, to the extent that the Restricted Stock Units are payable upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest charges imposed under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on
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Netflix, Inc. 2020 Stock Plan – Restricted Stock Unit Award Agreement
the first business day after the date that is six (6) months following such separation from service (or death, if earlier). Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate identified payment for purposes of Section 409A of the Code. The Company makes no representation that any or all of the payments or benefits described in this Agreement will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. Grantee shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A of the Code.
G. No Dividend Equivalents; Rights as a Stockholder.
The Restricted Stock Units are not accompanied by rights to dividends, Dividend Equivalents or other distributions. Neither you nor any person claiming under or through you shall have any of the rights or privileges of a stockholder of the Company in respect of the Restricted Stock Units or any Shares deliverable hereunder unless and until certificates representing such Shares shall have been issued (which may occur electronically), recorded on the records of the Company or its transfer agents or registrars, and delivered to you. After such issuance, recordation and delivery, you will have all the rights of a stockholder of the Company with respect to voting such Shares and receipt of future dividends and distributions on such Shares.
H. Address for Notices.
Any notice to be given to the Company under the terms of this Agreement shall be addressed to the Company at Netflix, Inc., Attention: Stock Administration, 121 Albright Way, Los Gatos, CA 95032 (stockadmin@netflix.com) or at such other address as the Company may hereafter designate in writing.
I. Administrator Authority.
The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator in good faith shall be final and binding upon you, the Company and all other interested persons. The Administrator shall not be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Agreement.
J. Electronic Delivery and Participation.
The Company may, in its sole discretion, decide to deliver any documents related to Restricted Stock Units awarded under the Plan or future Restricted Stock Units that may be awarded under the Plan by electronic means or request Grantee’s consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through any online or electronic system established and maintained by the Company or a third party designated by the Company.
K. Entire Agreement; Agreement Amendments.
The Plan is incorporated herein by reference. The Plan and this Agreement, including any addendum and appendix that may be attached thereto, constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all other prior undertakings and agreements of the Company and Grantee with respect to the subject matter hereof.
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Netflix, Inc. 2020 Stock Plan – Restricted Stock Unit Award Agreement
The Administrator may amend, modify or terminate this Agreement in any respect at any time; provided, however, that modifications to this Agreement that materially impair Grantee’s rights hereunder can be made only in an express written contract signed by the Company and Grantee. Notwithstanding the foregoing, the Company reserves the right to revise the Agreement and Grantee’s rights under outstanding Restricted Stock Units as it deems necessary or advisable, in its sole discretion and without the consent of Grantee: (1) as required by applicable laws, or (2) to comply with Section 409A of the Code or to otherwise avoid imposition of any additional tax or income recognition under Section 409A of the Code in connection with the Restricted Stock Units.
L. Governing Law and Venue.
This Agreement shall be administered, construed and governed in accordance with the laws of the State of Delaware, but without regard to its conflict of law rules. For purposes of any action, lawsuit or other proceedings brought to enforce this Agreement, relating to it, or arising from it, the parties hereby submit to and consent to the sole and exclusive jurisdiction of the state and federal courts situated within New Castle County, Delaware and waive any objection the parties might have to personal jurisdiction or venue in those courts.
M. No Guarantee of Continued Service or Future Grants.
The transactions contemplated hereunder do not constitute an express or implied promise of continued engagement as a Service Provider for the vesting period of the Restricted Stock Units, or any period at all, and shall not interfere with your right or the right of the Employer to terminate your relationship as a Service Provider at any time, with or without cause.
Nothing in this Agreement constitutes an express or implied promise of continued grants, or benefits in lieu of grants, of future awards.
N. No Advice Regarding Grant.
The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding Grantee’s participation in the Plan, or Grantee’s acquisition or sale of the Shares. Grantee should consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan.
O. Language.
Grantee acknowledges that he or she is proficient in the English language, or had the opportunity to consult with an advisor who is proficient in the English language, and understands the content of this Agreement and other Plan-related materials. If Grantee has received this Agreement, or any other document related to the Restricted Stock Units and/or the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
P. Severability.
The provisions of this Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
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Netflix, Inc. 2020 Stock Plan – Restricted Stock Unit Award Agreement
Q. Country-Specific Terms.
Notwithstanding any provisions in this Agreement, if Grantee transfers employment to a Company Subsidiary outside of the United States or relocates to a country outside of the United States, additional terms and conditions for such country will apply to Grantee, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. The Company reserves the right to require Grantee to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
R. Imposition of Other Requirements.
The Company reserves the right to impose other requirements on Grantee’s participation in the Plan, on the Restricted Stock Units and on any Shares underlying the Restricted Stock Units, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, including if Grantee is or becomes subject to the law of a country outside the United States. The Company may require Grantee to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
S. Waiver.
Grantee acknowledges that a waiver by the Company of breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by Grantee or any other grantees.
T. Insider Trading Restrictions/Market Abuse Laws.
Grantee acknowledges that he or she is subject to the Netflix, Inc. Insider Trading Policy and that Grantee has reviewed and agreed to this policy. Further, Grantee acknowledges that, depending on his or her country, broker’s country, or the country in which the Shares are listed, he or she may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, which may affect his or her ability to accept, acquire, sell or attempt to sell, or other dispose of the Shares, rights to Shares, or rights linked to the value of Shares, during such times as Grantee is considered to have “inside information” regarding the Company (as defined by the laws or regulations in applicable jurisdictions, including the U.S. and Grantee’s country). Local insider trading laws and regulations may prohibit the cancellation or amendment of orders Grantee placed before possessing inside information. Furthermore, Grantee may be prohibited from (i) disclosing insider information to any third party, including fellow employees (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them to otherwise buy or sell securities. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under the Netflix, Inc. Insider Trading Policy. Grantee acknowledges that it is Grantee’s responsibility to comply with any applicable restrictions, and Grantee should speak to his or her personal advisor on this matter.
U. Clawback.
The Restricted Stock Units granted hereunder, and any Shares issued in respect of the Restricted Stock Units granted hereunder, shall be subject to (i) Section 22 of the Plan, (ii) forfeiture or recovery by the Company to the extent required by Applicable Laws, including, without limitation, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010; and (iii) any compensation recovery, “clawback” or similar policy adopted by the Company from time to time, including, without limitation, the Netflix, Inc. Clawback Policy, as it may be amended from time to time.
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Netflix, Inc. 2020 Stock Plan – Restricted Stock Unit Award Agreement
V. Foreign Asset and Account Reporting.
Grantee’s country may have certain exchange control and/or foreign asset/account reporting requirements which may affect Grantee’s ability to acquire or hold Shares under the Plan or cash received from participating in the Plan (including from any dividends received or sale proceeds resulting from the sale of Shares) in a brokerage or bank account outside of Grantee’s country. Grantee may be required to report such accounts, assets or transactions to the tax or other authorities in Grantee’s country. Grantee also may be required to repatriate sale proceeds or other funds received as a result of Grantee’s participation in the Plan to his or her country through a designated bank or broker and/or within a certain time after receipt. Grantee acknowledges that it is Grantee’s responsibility to comply with any applicable regulations, and that Grantee should speak to Grantee’s personal advisor on this matter.
W. Headings.
The captions used in this Agreement are inserted for convenience and shall not be deemed to be a part of the Restricted Stock Units for construction and interpretation.
***
The Restricted Stock Units granted hereunder are granted under and governed by the terms and conditions of the Plan and this Agreement. By accepting the Restricted Stock Units, (1) you confirm that you have reviewed the Plan and this Agreement in their entirety, have had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully understand all provisions of the Plan and Agreement, and (2) you agree to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and Agreement. You must promptly notify the Company in writing (including electronically) of any change in your residence address.
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Netflix, Inc. 2020 Stock Plan – Restricted Stock Unit Award Agreement
Exhibit 10.2
NETFLIX, INC.
2020 STOCK PLAN
PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT
Unless specifically indicated in this Performance-Based Restricted Stock Unit Award Agreement, including Exhibit A attached hereto (this “Agreement”), the terms used in this Agreement will have the meanings ascribed to them in the 2020 Stock Plan (the “Plan”).
I. NOTICE OF PERFORMANCE-BASED RESTRICTED STOCK UNIT GRANT
You (also known as “Grantee”) have been granted an award of Performance-Based Restricted Stock Units (the “PSUs”), subject to the terms and conditions of the Plan and this Agreement. Certain details about the PSUs granted hereunder, including the number of PSUs granted assuming target performance levels (the “Target PSUs”), the date of grant (“Date of Grant”) and the grant number, shall be reflected in your E*TRADE account.
Vesting Schedule:
Subject to the terms of this Agreement and the Plan, the PSUs will vest in accordance with the vesting conditions set forth on Exhibit A.
Except as otherwise provided in Exhibit A, Grantee’s right in any PSUs that are not vested as of the date on which Grantee ceases to be a Service Provider shall automatically terminate on such date, and such PSUs shall be canceled and shall be of no further force and effect.
II. AGREEMENT
A. Grant of PSUs.
All PSUs granted to you hereunder by the Administrator are subject to all of the terms and conditions of the Plan, which is incorporated herein by reference. For example, but not by way of limitation, the Plan contains important provisions regarding treatment of PSUs in the event of a Change in Control of the Company, which is supplemented by Exhibit A. Except as otherwise provided in Section 3 of Exhibit A, notwithstanding any contrary provision of this Agreement, in the event of a conflict between the terms and conditions of the Plan and the terms and conditions of this Agreement, the terms and conditions of the Plan shall prevail.
B. Nature of Grant.
In accepting the PSUs, you acknowledge, understand and agree that:
1.the Plan is established voluntarily by the Company, is discretionary in nature, and may be amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
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Netflix, Inc. 2020 Stock Plan – Performance-Based Restricted Stock Unit Award Agreement
2. the PSUs, and the income from and value of same, including without limitation the Shares underlying the PSUs, are not intended to replace any compensation owed to you by the Company or, if different, your employer (the “Employer”);
3. the PSUs, and the income from and value of same, including without limitation the Shares underlying the PSUs, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, holiday pay, long-service awards, pension or retirement or welfare benefits or similar payments;
4. the future value of the Shares underlying the PSUs and the number of PSUs that may vest (if any) is unknown, indeterminable, and cannot be predicted with certainty;
5. no claim or entitlement to compensation or damages shall arise from forfeiture of the PSUs;
6. unless otherwise provided in the Plan or by the Company in its discretion, the PSUs and the benefits evidenced by this Agreement do not create any entitlement to have the PSUs or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the Shares;
7. unless otherwise agreed with the Company, the PSUs and the Shares underlying the PSUs, and the income from and value of same, are not granted as consideration for, or in connection with, the service you may provide as a director of a Subsidiary; and
8. if you provide services outside the U.S.,
a) where applicable, neither the Company nor any of its Subsidiaries shall be liable for any foreign exchange rate fluctuation between your local currency and the United States Dollar that may affect the number and value of the PSUs or of any amounts due to you pursuant to the settlement of the PSUs or the subsequent sale of any Shares acquired upon settlement; and
b) the PSUs and the Shares underlying the PSUs, and the income from and value of same, are not part of normal or expected compensation for any purpose.
C. Company’s Obligation to Settle the PSUs.
Each PSU represents the right to receive one Share on the date it vests. Unless and until the PSUs have vested in the manner set forth in Section I and Exhibit A of this Agreement, you will have no right to settlement of any such PSUs. Prior to actual settlement of any vested PSUs, such PSUs will represent an unfunded and unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.
D. Settlement.
This award of PSUs represents the right to receive a number of Shares equal to the number of PSUs that vest pursuant to the vesting terms set forth on Exhibit A and the terms of this Agreement, provided that, notwithstanding anything in this Agreement to the contrary, the PSUs may be settled in cash, Shares, or a combination of both in the Administrator’s sole discretion. Subject to Section II.F., any PSUs that vest will be paid to Grantee (or in the event of Grantee’s death, to his or her properly designated beneficiary or estate) in whole Shares, cash or a combination thereof. Subject to the following paragraph and Section II.F., each PSU that vests
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Netflix, Inc. 2020 Stock Plan – Performance-Based Restricted Stock Unit Award Agreement
in accordance with Section I and Exhibit A hereto will be settled as soon as practicable after vesting but in each such case no later than sixty (60) days following the applicable vesting date set forth on Exhibit A.
The Company will not be required to issue any certificate or certificates for Shares hereunder prior to fulfillment of all the following conditions: (a) the admission of such Shares to listing on all stock exchanges on which such class of stock is then listed; (b) the completion of any registration or other qualification of such Shares under any U.S. or non-U.S. state or federal law or under the rulings or regulations of the U.S. Securities and Exchange Commission (the “SEC”) or any other regulatory body, which the Administrator, in its absolute discretion, deems necessary or advisable; (c) the obtaining of any approval or other clearance from any U.S. or non-U.S. governmental agency, which the Administrator, in its absolute discretion, determines to be necessary or advisable; and (d) the lapse of such reasonable period of time following the date of vesting as the Administrator may establish from time to time for reasons of administrative convenience. Grantee understands that the Company is under no obligation to register or qualify the Common Stock with the SEC or any other U.S. or non U.S. state or federal securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the Shares. Further, Grantee agrees that the Company shall have unilateral authority to amend the Plan and this Agreement without Grantee’s consent to the extent necessary to comply with securities or other laws applicable to the issuance of Shares.
E. Non-Transferability of PSUs.
Unless determined otherwise by the Administrator, the PSUs granted hereunder may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution. If the Administrator makes any of the PSUs transferable, such PSUs will be subject to such additional terms and conditions as the Administrator deems appropriate. The terms of the Plan and this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of Grantee.
F. Tax Consequences and Responsibilities.
1. Withholding Taxes. Grantee acknowledges that, regardless of any action taken by the Company or the Employer, the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to Grantee’s participation in the Plan and legally applicable to Grantee (“Tax-Related Items”) is and remains Grantee’s responsibility and may exceed the amount, if any, actually withheld by the Company or the Employer. Grantee further acknowledges that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the PSUs, including, but not limited to, the grant, vesting or settlement of the PSUs, the subsequent sale of Shares acquired pursuant to the PSUs and the receipt of any dividends on such Shares; and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the PSUs to reduce or eliminate Grantee’s liability for Tax-Related Items or achieve any particular tax result. Further, if Grantee is subject to Tax Related Items in more than one jurisdiction, Grantee acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to the relevant taxable or tax withholding event, as applicable, Grantee agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, Grantee authorizes the Company and/or the Employer, or their respective agents, at their discretion, to satisfy their withholding obligations with regard to all Tax-Related Items by (i) withholding from the proceeds of the sale of Shares otherwise
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Netflix, Inc. 2020 Stock Plan – Performance-Based Restricted Stock Unit Award Agreement
deliverable to Grantee upon settlement of the PSUs, which sale is arranged by the Company (on Grantee’s behalf pursuant to this authorization without further consent); (ii) withholding from Grantee’s wages or other cash compensation payable to Grantee by the Company and/or a Parent or Subsidiary, including any cash paid in respect of Shares underlying the PSUs; (iii) withholding Shares to be issued upon settlement of the PSUs and otherwise deliverable to Grantee; (iv) causing Grantee to tender a cash payment; or (v) any other method of withholding determined by the Company and, to the extent required by applicable laws or the Plan, approved by the Committee.
Notwithstanding the foregoing, if Grantee is an officer of the Company subject to Section 16 of the Exchange Act (a “Section 16 Officer”), then the Company will withhold Shares to be issued upon settlement of the PSUs in order to satisfy the minimum statutory amount required to be withheld pursuant to the Tax-Related Items with respect to such Section 16 Officer in accordance with method (iii) above, unless the use of such withholding method is impermissible or impracticable under applicable laws, in which case the withholding obligation will be satisfied by method (ii) above, provided that, in the event the Section 16 Officer has elected to satisfy the Tax-Related Items through method (i) as permitted hereunder or has previously elected a Section 16 Officer Withholding Amount (as defined below) greater than the applicable minimum statutory amount required to be withheld pursuant to the Tax-Related Items, the Company shall give effect to such election(s). The “Section 16 Officer Withholding Amount” in respect of any issuance of Shares pursuant hereto means the (i) applicable minimum statutory amount required to be withheld pursuant to the Tax-Related Items, or (ii) such greater amount, up to the sum of all applicable maximum rates, applied in respect of the applicable issuance of Shares with respect to the Section 16 Officer at such Section 16 Officer’s election.
The Company and/or the Employer may withhold or account for Tax-Related Items by considering statutory withholding rates or other withholding rates, including maximum rates applicable in Grantee’s jurisdiction(s), except as provided above for Section 16 Officers. If Tax-Related Items are withheld at a rate which exceeds Grantee’s obligation for Tax-Related Items, Grantee may receive a cash refund of any over-withheld amount not remitted to tax authorities on Grantee’s behalf and will have no entitlement to the Common Stock equivalent, or if not refunded, Grantee may seek a refund from the local tax authorities. In the event Tax-Related Items are withheld at a rate which is less than Grantee’s obligations for Tax-Related Items, Grantee may be required to pay any additional Tax-Related Items directly to the applicable tax authority or to the Company and/or the Employer. If the obligation for Tax-Related Items is satisfied by withholding Shares, for tax purposes, Grantee shall be deemed to have been issued the full number of Shares subject to the vested PSUs, notwithstanding that a number of the Shares is held back solely for the purpose of paying the Tax-Related Items.
Finally, Grantee agrees to pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of Grantee’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if Grantee fails to comply with his or her obligations in connection with the Tax-Related Items.
2. Section 409A of the Code. The PSUs are intended to be exempt from, or to the extent subject thereto, to comply with Section 409A of the Code, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted in accordance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, Grantee shall not be considered to have terminated employment or service with the Company, or a Parent or Subsidiary, for purposes of this Agreement and no payment shall be due to Grantee under this
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Netflix, Inc. 2020 Stock Plan – Performance-Based Restricted Stock Unit Award Agreement
Agreement until Grantee would be considered to have incurred a “separation from service” from the Company, its Parent or any Subsidiary within the meaning of Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement, to the extent that the PSUs are payable upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest charges imposed under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate identified payment for purposes of Section 409A of the Code. The Company makes no representation that any or all of the payments or benefits described in this Agreement will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. Grantee shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A of the Code.
G. No Dividend Equivalents; Rights as a Stockholder.
The PSUs are not accompanied by rights to dividends, Dividend Equivalents or other distributions. Neither you nor any person claiming under or through you shall have any of the rights or privileges of a stockholder of the Company in respect of the PSUs or any Shares deliverable hereunder unless and until certificates representing such Shares shall have been issued (which may occur electronically), recorded on the records of the Company or its transfer agents or registrars, and delivered to you. After such issuance, recordation and delivery, you will have all the rights of a stockholder of the Company with respect to voting such Shares and receipt of future dividends and distributions on such Shares.
H. Address for Notices.
Any notice to be given to the Company under the terms of this Agreement shall be addressed to the Company at Netflix, Inc., Attention: Stock Administration, 121 Albright Way, Los Gatos, CA 95032 (stockadmin@netflix.com) or at such other address as the Company may hereafter designate in writing.
I. Administrator Authority.
The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator in good faith shall be final and binding upon you, the Company and all other interested persons. The Administrator shall not be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Agreement.
J. Electronic Delivery and Participation.
The Company may, in its sole discretion, decide to deliver any documents related to PSUs awarded under the Plan or future PSUs that may be awarded under the Plan by electronic means or request Grantee’s consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through any online or electronic system established and maintained by the Company or a third party designated by the Company.
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Netflix, Inc. 2020 Stock Plan – Performance-Based Restricted Stock Unit Award Agreement
K. Entire Agreement; Agreement Amendments.
The Plan is incorporated herein by reference. The Plan and this Agreement, including any exhibit, addendum and appendix that may be attached thereto, constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all other prior undertakings and agreements of the Company and Grantee with respect to the subject matter hereof.
The Administrator may amend, modify or terminate this Agreement in any respect at any time; provided, however, that modifications to this Agreement that materially impair Grantee’s rights hereunder can be made only in an express written contract signed by the Company and Grantee. Notwithstanding the foregoing, the Company reserves the right to revise the Agreement and Grantee’s rights under outstanding PSUs as it deems necessary or advisable, in its sole discretion and without the consent of Grantee: (1) as required by applicable laws, or (2) to comply with Section 409A of the Code or to otherwise avoid imposition of any additional tax or income recognition under Section 409A of the Code in connection with the PSUs.
L. Governing Law and Venue.
This Agreement shall be administered, construed and governed in accordance with the laws of the State of Delaware, but without regard to its conflict of law rules. For purposes of any action, lawsuit or other proceedings brought to enforce this Agreement, relating to it, or arising from it, the parties hereby submit to and consent to the sole and exclusive jurisdiction of the state and federal courts situated within New Castle County, Delaware and waive any objection the parties might have to personal jurisdiction or venue in those courts.
M. No Guarantee of Continued Service or Future Grants.
The transactions contemplated hereunder do not constitute an express or implied promise of continued engagement as a Service Provider for the performance period of the PSUs, or any period at all, and shall not interfere with your right or the right of the Employer to terminate your relationship as a Service Provider at any time, with or without cause.
Nothing in this Agreement constitutes an express or implied promise of continued grants, or benefits in lieu of grants, of future awards.
N. No Advice Regarding Grant.
The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding Grantee’s participation in the Plan, or Grantee’s acquisition or sale of the Shares. Grantee should consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan.
O. Language.
Grantee acknowledges that he or she is proficient in the English language, or had the opportunity to consult with an advisor who is proficient in the English language, and understands the content of this Agreement and other Plan-related materials. If Grantee has received this Agreement, or any other document related to the PSUs and/or the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
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Netflix, Inc. 2020 Stock Plan – Performance-Based Restricted Stock Unit Award Agreement
P. Severability.
The provisions of this Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
Q. Country-Specific Terms.
Notwithstanding any provisions in this Agreement, if Grantee transfers employment to a Company Subsidiary outside of the United States or relocates to a country outside of the United States, additional terms and conditions for such country will apply to Grantee, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. The Company reserves the right to require Grantee to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
R. Imposition of Other Requirements.
The Company reserves the right to impose other requirements on Grantee’s participation in the Plan, on the PSUs and on any Shares underlying the PSUs, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, including if Grantee is or becomes subject to the law of a country outside the United States. The Company may require Grantee to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
S. Waiver.
Grantee acknowledges that a waiver by the Company of breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by Grantee or any other grantees.
T. Insider Trading Restrictions/Market Abuse Laws.
Grantee acknowledges that he or she is subject to the Netflix, Inc. Insider Trading Policy and that Grantee has reviewed and agreed to this policy. Further, Grantee acknowledges that, depending on his or her country, broker’s country, or the country in which the Shares are listed, he or she may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, which may affect his or her ability to accept, acquire, sell or attempt to sell, or other dispose of the Shares, rights to Shares, or rights linked to the value of Shares, during such times as Grantee is considered to have “inside information” regarding the Company (as defined by the laws or regulations in applicable jurisdictions, including the U.S. and Grantee’s country). Local insider trading laws and regulations may prohibit the cancellation or amendment of orders Grantee placed before possessing inside information. Furthermore, Grantee may be prohibited from (i) disclosing insider information to any third party, including fellow employees (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them to otherwise buy or sell securities. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under the Netflix, Inc. Insider Trading Policy. Grantee acknowledges that it is Grantee’s responsibility to comply with any applicable restrictions, and Grantee should speak to his or her personal advisor on this matter.
U. Clawback.
The PSUs granted hereunder, and any Shares issued in respect of the PSUs granted hereunder, shall be subject to (i) Section 22 of the Plan, (ii) forfeiture or recovery by the
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Netflix, Inc. 2020 Stock Plan – Performance-Based Restricted Stock Unit Award Agreement
Company to the extent required by Applicable Laws, including, without limitation, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010; and (iii) any compensation recovery, “clawback” or similar policy adopted by the Company from time to time, including, without limitation, the Netflix, Inc. Clawback Policy, as it may be amended from time to time.
V. Foreign Asset and Account Reporting.
Grantee’s country may have certain exchange control and/or foreign asset/account reporting requirements which may affect Grantee’s ability to acquire or hold Shares under the Plan or cash received from participating in the Plan (including from any dividends received or sale proceeds resulting from the sale of Shares) in a brokerage or bank account outside of Grantee’s country. Grantee may be required to report such accounts, assets or transactions to the tax or other authorities in Grantee’s country. Grantee also may be required to repatriate sale proceeds or other funds received as a result of Grantee’s participation in the Plan to his or her country through a designated bank or broker and/or within a certain time after receipt. Grantee acknowledges that it is Grantee’s responsibility to comply with any applicable regulations, and that Grantee should speak to Grantee’s personal advisor on this matter.
W. Headings.
The captions used in this Agreement are inserted for convenience and shall not be deemed to be a part of the PSUs for construction and interpretation.
***
The PSUs granted hereunder are granted under and governed by the terms and conditions of the Plan and this Agreement. By accepting the PSUs, (1) you confirm that you have reviewed the Plan and this Agreement in their entirety, have had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully understand all provisions of the Plan and Agreement, and (2) you agree to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and Agreement. You must promptly notify the Company in writing (including electronically) of any change in your residence address.
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Netflix, Inc. 2020 Stock Plan – Performance-Based Restricted Stock Unit Award Agreement
Exhibit 10.2
Exhibit A
VESTING SCHEDULE
[ ]
A-1
Exhibit A to Netflix, Inc. 2020 Stock Plan – Performance-Based Restricted Stock Unit Award Agreement
Exhibit 10.3
Netflix, Inc.
Executive Officer Severance Plan
Effective January 1, 2024
1.Introduction. The purpose of this Netflix, Inc. Executive Officer Severance Plan, as it may be amended or restated from time to time (the “Plan”) is to provide assurances of specified severance benefits to eligible executives of Netflix, Inc., a Delaware corporation, and its Subsidiaries upon certain terminations of employment. Netflix, Inc. believes that the Plan will aid Netflix, Inc. and any successor thereto in attracting and retaining highly qualified individuals. The Plan is an unfunded arrangement and is intended to be exempt from the participation, vesting, funding and fiduciary requirements set forth in Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). This document constitutes the written instrument under which the Plan is maintained.
2.Defined Terms. For purposes of the Plan, the following terms shall be defined as set forth below:
2.1 “Accrued Benefits” means (a) any accrued but unpaid base salary through the Severance Date, (b) any unreimbursed expenses incurred through the Severance Date subject to the Covered Executive’s prompt delivery to Netflix of all required documentation of such expenses pursuant to applicable Company policies, (c) the Prior Year Bonus and (d) all other vested payments, benefits or fringe benefits to which the Covered Executive is entitled under the terms of any applicable compensation arrangement or benefit, equity or fringe benefit plan or program (excluding any other severance plan, policy or program) of the Company in accordance with the terms of such arrangement, plan, or program.
2.2 “Administrator” means the Compensation Committee, or any person to whom the Compensation Committee has delegated any authority or responsibility pursuant to Section 10, but only to the extent of such delegation, provided that the Board may, in its discretion, at any time and from time to time, administer the Plan.
2.3 “Base Salary” means the Covered Executive’s annual base salary as in effect either (a) immediately preceding the Severance Date or (b) at any time within the twelve (12) month period prior to the Severance Date, whichever of (a) or (b) is greater.
2.4 “Board” means the Board of Directors of Netflix.
2.5 “Bonus” means the bonus payable to the Covered Executive under the Bonus Program.
2.6 “Bonus Program” means Netflix’s Annual Performance-Based Cash Bonus Program, or any successor bonus program approved by the Compensation Committee in which Covered Executive participates from time to time.
2.7 “Cause” means (i) an act of fraud or personal dishonesty undertaken by a Covered Executive in connection with the Covered Executive’s responsibilities as an employee that is intended to result in substantial gain or personal enrichment of the Covered Executive, (ii) a Covered Executive’s conviction of, or plea of nolo contendere to, a felony, or (iii) a Covered Executive’s gross misconduct in connection with the performance of the Covered Executive’s responsibilities as an employee or willful failure to perform a reasonable material component of the Covered Executive’s responsibilities as an employee.
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2.8 “Change in Control” means the first to occur of any of the following:
(a) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of Netflix representing fifty percent (50%) or more of the total voting power represented by Netflix’s then outstanding voting securities; or
(b) consummation of the sale or disposition by Netflix of all or substantially all of Netflix’s assets; or
(c) The consummation of a merger or consolidation of Netflix with any other corporation, other than a merger or consolidation which would result in the voting securities of Netflix outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of Netflix, or such surviving entity or its parent outstanding immediately after such merger or consolidation; or
(d) A change in the composition of the Board, as a result of which less than a majority of the Directors are Incumbent Directors. An “Incumbent Director” means a Director who either (A) is a Director as of the Effective Date, or (B) is elected, or nominated for election, to the Board with the affirmative votes of at least a majority of those Directors whose election or nomination was not in connection with any transaction described in subsections (a), (b) or (c) or in connection with an actual or threatened proxy contest relating to the election of Directors.
To the extent required to avoid accelerated taxation and/or tax penalties under Section 409A, a “Change in Control” shall be deemed to have occurred under the Plan only if a change in the ownership or effective control of the Company or a change in ownership of a substantial portion of the assets of the Company shall also be deemed to have occurred under Section 409A.
2.9 “Change in Control Protection Period” means the three (3) month period preceding a Change in Control and the twenty-four (24) month period beginning on the date of the Change in Control.
2.10 “CIC Involuntary Termination” means an Involuntary Termination during a Change in Control Protection Period.
2.11 “CIC Severance Benefit” has the meaning set forth in Section 4.2(a).
2.12 “CIC Severance Benefit Schedule” has the meaning set forth in Section 4.2(a).
2.13 “CIC Severance Pay” shall have the meaning ascribed to it in the CIC Severance Benefit Schedule.
2.14 “Code” means the Internal Revenue Code of 1986, as amended.
2.15 “Company” means Netflix and its Subsidiaries.
2.16 “Company Equity Plan” means the Netflix, Inc. 2020 Stock Plan, as it may be amended or restated from time to time, or any successor equity incentive plan approved by the Compensation Committee.
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2.17 “Comparable Title” means the same or a substantially similar title to the title the Covered Executive held immediately prior to the Change in Control, with corresponding comparable authority, duties and responsibilities.
2.18 “Compensation Committee” means Compensation Committee of the Board.
2.19 “Covered Executive” means a common law employee employed by Netflix or a Subsidiary of Netflix who meets each of the following criteria: (a) such employee is an Executive Officer or was an Executive Officer on or after January 1, 2024, and (b) if the employee was eligible to participate in the Prior Plan, the employee has provided a written consent in the form required by the Administrator to amendments to the Prior Plan that make the employee ineligible to participate in the Prior Plan.
2.20 “Current Annual Compensation” shall have the meaning ascribed to it in the Non-CIC Severance Benefit Schedule.
2.21 “Director” means a member of Netflix’s Board of Directors.
2.22 “Effective Date” means January 1, 2024.
2.23 “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
2.24 “Executive Officer” means each Netflix “executive officer” as defined in Rule 3b-7 under the Exchange Act.
2.25 “Good Reason” means the occurrence of any of the following events or circumstances in the absence of the applicable Covered Executive’s written consent:
(a) a diminution in the Covered Executive’s annual base salary as in effect immediately prior to such diminution by more than ten (10) percent (other than in connection with a proportionate across-the-board reduction in the annual base salary of all other actively employed Executive Officers);
(b) a material, adverse change in the Covered Executive’s title or in the nature or scope of the Covered Executive’s authority, duties or responsibilities with respect to the activities of Netflix, including, without limitation, if in connection with or following a Change in Control, the Covered Executive ceases to hold a Comparable Title at a publicly traded company that is Netflix, Inc., its successor, or the parent entity of the acquirer; or
(c) the Company requiring the Covered Executive to relocate the Covered Executive’s principal place of employment with the Company by more than thirty (30) miles from the Covered Executive’s principal place of employment as of the later of (x) the Effective Date and (y) the date the Covered Executive became eligible to participate in the Plan.
Notwithstanding the foregoing, a termination by a Covered Executive for Good Reason shall not have occurred unless (i) the Covered Executive provides a written notice to Netflix specifying the specific basis for the Covered Executive’s belief that the Covered Executive is entitled to terminate employment for Good Reason (the “Notice of Termination”) within ninety (90) days of the initial existence of the circumstance(s) constituting Good Reason, specifying in reasonable detail the circumstances constituting Good Reason, (ii) Netflix has failed within thirty (30) days after receipt of the Notice of Termination to cure the circumstances constituting Good Reason and (iii) the Covered Executive’s Severance Date occurs no later than sixty (60) days after the date of the Notice of Termination.
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2.26 “Involuntary Termination” means the termination of the Covered Executive’s employment with the Company (i) at any time by the Company for a reason other than Cause, the Covered Executive’s death or the Covered Executive’s permanent disability or (ii) solely during a Change in Control Protection Period, by the Covered Executive for Good Reason. For purposes of the Plan, the transfer of a Covered Executive’s employment between Netflix and a Subsidiary, or between Subsidiaries will not be considered a termination of employment and the Covered Executive will not be entitled to receive a Severance Benefit in connection therewith.
2.27 “Netflix” means Netflix, Inc., a Delaware corporation, and any successor thereto.
2.28 “Non-CIC Involuntary Termination” means an Involuntary Termination outside of a Change in Control Protection Period.
2.29 “Non-CIC Severance Benefit” has the meaning set forth in Section 4.2(a).
2.30 “Non-CIC Severance Benefit Schedule” has the meaning set forth in Section 4.2(a).
2.31 “Plan” means the Netflix, Inc. Executive Officer Severance Plan, as set forth in this document, and as hereafter amended from time to time.
2.32 “Prior Plan” means the Company’s Executive Severance and Retention Incentive Plan, as it may be amended or restated from time to time.
2.33 “Prior Year Bonus” means any Bonus that was earned by the Covered Executive but which had not yet been paid as of the Severance Date.
2.34 “Pro Rata Bonus” means an amount equal to the product of (i) and (ii): (i) the Bonus, if any, that the Covered Executive would have earned for the Bonus program performance period in which the Severance Date occurs, calculated (x) based on actual performance against the Bonus program performance metrics as assessed for the entire performance period, only if the Involuntary Termination is a Non-CIC Involuntary Termination or (y) as if target performance levels were achieved, only if the Involuntary Termination is a CIC Involuntary Termination and (ii) a fraction, the numerator of which is the number of days the Covered Executive was employed by the Company during Bonus program performance period in which the Severance Date occurs, and the denominator of which is the number of days in the Bonus program performance period. If the Bonus Program provides that a Covered Executive is entitled to receive a pro rata Bonus in connection with an Involuntary Termination (as is the case for the Bonus Program in effect as of the Effective Date) and the Covered Executive experiences an Involuntary Termination that qualifies the Covered Executive for a Pro Rata Bonus under the Plan that (i) differs from the amount of the pro rata Bonus that would have been payable under the Bonus Program, the Pro Rata Bonus shall be in lieu of any such pro rata Bonus under the Bonus Program or (ii) is the same as the amount of the pro rata Bonus payable under the Bonus Program, the Pro Rata Bonus shall constitute the pro rata Bonus under the Bonus Program.
2.35 “Section 409A” means Section 409A of the Code and the final regulations and any guidance promulgated thereunder.
2.36 “Severance Benefit” means the CIC Severance Benefit or the Non-CIC Severance Benefit.
2.37 “Severance Date” means the date on which a Covered Executive experiences an Involuntary Termination.
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2.38 “Subsidiary” means any corporation or other entity a majority of whose outstanding voting stock or voting power is beneficially owned, directly or indirectly, by Netflix.
2.39 “Target Annual LTI Opportunity” means a Covered Executive’s target annual long-term equity incentive compensation opportunity as established by the Compensation Committee, representing the Covered Executive’s target grant date value of the ordinary course Netflix Restricted Stock Units and Performance-Based Restricted Stock Units (at target performance) approved to be granted to the Covered Executive in the year that the Covered Executive’s Severance Date occurs (or the year prior to the Covered Executive’s Severance Date, to the extent no annual long-term equity incentive compensation opportunity was established for the year of the Covered Executive’s Severance Date). Any Administrator determination of which awards are included in a Covered Executive’s Target Annual LTI Opportunity shall be binding and conclusive on all persons.
2.40 “Target Bonus” means the Covered Executive’s target annual Bonus as in effect either (a) immediately preceding the Severance Date or (b) at any time within the twelve (12) month period prior to the Severance Date, whichever of (a) or (b) is greater.
3.Accrued Benefits. Netflix will promptly make a payment or otherwise provide all Accrued Benefits when due. Such obligation will not be subject to the Covered Executive’s execution of a Release (as defined below). The Prior Year Bonus, if applicable, shall be paid on the date that Bonuses for such year are normally paid to Netflix’s actively employed executives.
4.Severance.
4.1 Eligibility. If a Covered Executive experiences an Involuntary Termination, then, subject to the Covered Executive’s compliance with Section 5, the Covered Executive shall receive the Severance Benefit provided pursuant to this Section 4.
4.2 Severance Benefit.
(a) Subject to the terms of the Plan, the Company shall provide the “Non-CIC Severance Benefit” to each Covered Executive who experiences a Non-CIC Involuntary Termination equal to the amount listed in Schedule A attached hereto (the “Non-CIC Severance Benefit Schedule”) and the Company shall provide the “CIC Severance Benefit” to each Covered Executive who experiences a CIC Involuntary Termination equal to the amount listed in Schedule B attached hereto (the “CIC Severance Benefit Schedule”).
(i) Subject to Sections 5 and 8, the components of the Non-CIC Severance Benefit set forth on the Non-CIC Severance Benefit Schedule shall be payable as follows, with (1)-(2) each in the form of a lump sum cash payment: (1) Current Annual Compensation shall be paid as soon as administratively practicable following the Severance Date, but in no event more than two and one half months following the Severance Date and (2) the Pro Rata Bonus shall be paid on the date that Bonuses for such year are normally paid to the Company’s actively employed executives.
(ii) Subject to Sections 5 and 8, the following components of the CIC Severance Benefit set forth on the CIC Severance Benefit Schedule shall be payable as soon as administratively practicable following the later of (x) the Change in Control and (y) the Severance Date, but in no event more than two and one half months following the later of (x) and (y), with each in the form of a lump sum cash payment: (1) CIC Severance Pay, (2) the Pro Rata Bonus, and (3) the Benefits Period payment described in Section 4(d).
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(b) Notwithstanding any contrary provision of the Plan, in its sole discretion, the Administrator may provide a Covered Executive with a Severance Benefit that exceeds the Severance Benefit applicable to the Covered Executive as set forth on the Non-CIC Severance Benefit Schedule or the CIC Severance Benefit Schedule, as applicable. Any Severance Benefit provided pursuant this Section 4.2(b) shall be in writing and executed by the Administrator.
(c) The Administrator may reduce the Severance Benefit provided in Section 4.2(a) or (b) but only with the written consent of the Covered Executive, and provided that any such reduction may be made only if in accordance with all applicable laws, including (but not limited to) Section 409A.
(d) If the Covered Executive experiences a CIC Involuntary Termination and is eligible for and timely elects to receive continued healthcare coverage pursuant to the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company shall pay the Covered Executive a lump sum cash payment equal to the product of (x) the sum of the monthly employer and employee COBRA premium rates in effect as of the Covered Executive’s Severance Date for the Covered Executive’s and the Covered Executive’s covered dependents’ Company health, dental and vision insurance and (y) the number of months in the Covered Executive’s Benefits Period as set forth in the CIC Severance Benefit Schedule.
(e) If the Covered Executive experiences an Involuntary Termination, each of the Covered Executive’s equity and equity-based awards that are outstanding as of the Severance Date shall be treated in accordance with the applicable award agreement(s) and Company Equity Plan.
5.Release Agreement.
As a condition to receiving a Severance Benefit under the Plan, each Covered Executive will be required to sign a waiver and release of all claims arising out of their Involuntary Termination and employment with the Company in a form reasonably satisfactory to the Administrator (the “Release”). The Release must be executed and irrevocably effective within the period required by the Release but in no event later than sixty (60) days following the Covered Executive’s Severance Date, inclusive of any revocation period set forth in the Release (such deadline, the “Release Deadline”). The Severance Benefit will not be paid or provided until the Release becomes irrevocably effective. If the Release does not become irrevocably effective by the Release Deadline due to action or inaction of the Covered Executive, the Covered Executive will forfeit all rights to the Severance Benefit.
Notwithstanding any contrary provision of the Plan, in order to help a Covered Executive avoid having to pay the additional twenty percent (20%) income tax under Section 409A, in the event that a Covered Executive’s Severance Date occurs at a time during the calendar year when it would be possible for the Release to become effective in the calendar year following the calendar year in which the Severance Date occurs, then the Severance Benefit owed (if any) will be paid on the first payroll date that is at least sixty (60) days following the Severance Date (or, in the case of a CIC Severance Benefit, at least sixty (60) days following the later of the Change in Control and the Severance Date), but in all cases subject to Section 8.
6.Parachute Payments.
In the event that a Severance Benefit provided for in the Plan or otherwise payable or provided to the Covered Executive (i) constitutes a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this Section 6 would be subject to the excise tax
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imposed by Section 4999 of the Code (the “Excise Tax”), then the Covered Executive’s Severance Benefit hereunder shall be either
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Covered Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Netflix and the Covered Executive otherwise agree in writing, any determination required under this Section 6 shall be made in writing in good faith by an accounting firm chosen by the Administrator and reasonably acceptable to the Covered Executive (the “Accountants”). If a reduction in benefits is required only under the Plan, the reduction will apply to the Covered Executive’s Severance Benefit. If a reduction in benefits is required under the Plan and one or more other arrangements or plans entered into with or maintained for the benefit of the Covered Executive that provides for vesting acceleration of equity awards, cash severance, and/or continued employee benefits coverage, the reduction will occur in the following order: the vesting acceleration of stock options or stock appreciation rights, then cash severance, then vesting acceleration of equity awards other than stock options or stock appreciation rights, and then Company-paid employee benefits coverage. In the event that acceleration of vesting of stock options, stock appreciation rights or other equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for the Covered Executive’s stock options, stock appreciation rights or other equity awards, as applicable. If two or more stock options, stock appreciation rights or other equity awards are granted on the same day, the stock options, stock appreciation rights or other equity awards, as applicable, will be reduced on a pro-rata basis. For purposes of making the calculations required by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Netflix and the Covered Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. Netflix shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6.
7.Non-Duplication of Benefits. Except as otherwise provided in Section 4.2(e) or this Section 7, notwithstanding any other provision in the Plan to the contrary, the Severance Benefit provided hereunder shall be in lieu of any other severance benefits and the Severance Benefit provided hereunder shall be reduced by any severance paid or provided to a Covered Executive under any other plan or arrangement. Notwithstanding the preceding sentence, this Section 7 shall not apply to a Covered Executive to the extent such Covered Executive’s separate, written employment, retention or other agreement with the Company explicitly exempts the Covered Executive from the preceding sentence. Notwithstanding any other provision in the Plan to the contrary, (a) if an individual is eligible to participate in the Prior Plan, they shall not be eligible to receive any payments or benefits under the Plan, including the Severance Benefit and (b) in no event shall a Covered Executive receive both a CIC Severance Benefit and a Non-CIC Severance Benefit.
8.Section 409A.
8.1 Notwithstanding anything herein to the contrary, it is the intent that the Severance Benefit payable under the Plan satisfy the requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations and be exempt from Section 409A. If the Severance Benefit (or any portion thereof), when considered together with any other severance
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payments or separation benefits, is considered deferred compensation subject to Section 409A (together, the “Deferred Compensation Separation Benefits”), no Deferred Compensation Separation Benefits or other severance benefits that otherwise are exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be considered due or payable until the Covered Executive has incurred a “separation from service” within the meaning of Section 409A. In addition, if the Covered Executive is a “specified employee” within the meaning of Section 409A at the time of the Covered Executive’s separation from service (other than due to death), then any Deferred Compensation Separation Benefits otherwise due to the Covered Executive on or within the six (6) month period following the Covered Executive’s separation from service will accrue during such six (6) month period and will become payable in a lump sum payment (less applicable withholding taxes) on the date six (6) months and one (1) day following the date of the Covered Executive’s separation from service. All subsequent payments, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if the Covered Executive dies following their separation but prior to the six (6) month anniversary of their date of separation, then any payments delayed in accordance with this paragraph will be payable in a lump sum (less applicable withholding taxes) to the Covered Executive’s estate as soon as administratively practicable after the date of the Covered Executive’s death and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit.
8.2 Each payment and benefit payable under the Plan is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. Any payment or benefit that satisfies the requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations shall not constitute a Deferred Compensation Separation Benefit. Any payment or benefit that entitles the Covered Executive to taxable reimbursements or taxable in-kind benefits covered by Section 1.409A-1(b)(9)(v) shall not constitute a Deferred Compensation Separation Benefit. Any severance payment or portion thereof that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit shall not constitute a Deferred Compensation Separation Benefit. For this purpose, “Section 409A Limit” will mean the lesser of two (2) times: (A) the Covered Executive’s annualized compensation based upon the annual rate of pay paid to Covered Executive during his or her taxable year preceding the Covered Executive’s taxable year of the Covered Executive’s separation from service as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with respect thereto; or (B) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the Covered Executive’s employment is terminated.
8.3 To the extent payments hereunder are subject to Section 409A, it is the intent of the Plan to comply with the requirements of Section 409A so that none of the payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. Notwithstanding anything to the contrary in the Plan, including but not limited to Section 11, Netflix reserves the right to amend the Plan as it deems necessary or advisable, in its sole discretion and without the consent of the Covered Executives, to comply with Section 409A or to otherwise avoid income recognition under Section 409A prior to the actual payment of the Severance Benefit or imposition of any additional tax (provided that no such amendment shall materially reduce the benefits provided hereunder). The Company makes no representation that any or all of the payments or benefits described in the Plan will be exempt from or comply with Section 409A and makes no undertaking to preclude Section 409A from applying to any such payment. The Covered Executive shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.
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9.Withholding. The Company will withhold from any Severance Benefit all federal, state, local and other taxes required to be withheld therefrom and any other required payroll deductions.
10.Administration. The Plan will be administered and interpreted by the Administrator in its sole discretion. Any decision made or other action taken by the Administrator prior to a Change in Control with respect to the Plan, and any interpretation by the Administrator of any term or condition of the Plan prior to a Change in Control, or any related document, will be conclusive and binding on all persons and be given the maximum possible deference allowed by law. Following a Change in Control, any decision made or other action taken by the Administrator with respect to the Plan, and any interpretation by the Administrator of any term or condition of the Plan, or any related document that (i) does not affect the benefits payable under the Plan shall not be subject to review unless found to be arbitrary and capricious or (ii) does affect the benefits payable under the Plan shall not be subject to review unless found to be unreasonable or not to have been made in good faith. The Administrator may delegate to any other person all or any portion of their authority or responsibility with respect to the Plan, provided that any such delegate shall not be entitled to act or pass upon any matters pertaining specifically to their own benefit or eligibility under the Plan. Notwithstanding anything to the contrary in the Plan, the Plan may be amended by Netflix at any time, and retroactively if required, to the extent that, in the opinion of Netflix, such amendment is necessary to ensure that the Plan will be characterized as a plan maintained for a select group of management or highly compensated employees, as described in sections 201(2), 301(a)(3) and 401(a)(1) of ERISA.
11.Amendment or Termination. The Board and the Compensation Committee reserve the right to amend or terminate the Plan at any time provided that (a) as the Plan relates to each individual who was a Covered Executive on the Effective Date, without such Covered Executive’s written consent, the Plan may not be amended or terminated so as to reduce the amount of the Severance Benefit payable to the Covered Executive or to restrict the Covered Executive’s eligibility for a Severance Benefit, and (b) as the Plan relates to each individual who first becomes a Covered Executive after the Effective Date, (1) the Plan may be amended or terminated before such individual becomes a Covered Executive, and (2) after such individual becomes a Covered Executive, without such Covered Executive’s written consent, the Plan may not be amended or terminated so as to reduce the amount of the Severance Benefit payable to the Covered Executive or to restrict the Covered Executive’s eligibility for a Severance Benefit. Any amendment or termination of the Plan will be in writing.
12.Claims Procedure. Any employee or other person who believes they are entitled to any payment under the Plan may submit a claim in writing to the Administrator within ninety (90) days of the earlier of (i) the date the claimant learned the amount of their Severance Benefit under the Plan or (ii) the date the claimant learned that the claimant will not be entitled to any benefits under the Plan. If the claim is denied (in full or in part), the claimant will be provided a written notice explaining the specific reasons for the denial and referring to the provisions of the Plan on which the denial is based. The notice will also describe any additional information needed to support the claim and the Plan’s procedures for appealing the denial. The denial notice will be provided within ninety (90) days after the claim is received. If special circumstances require an extension of time (up to ninety (90) days), written notice of the extension will be given within the initial ninety (90) day period. This notice of extension will indicate the special circumstances requiring the extension of time and the date by which the Administrator expects to render its decision on the claim.
13.Appeal Procedure. If the claimant’s claim is denied, the claimant (or their authorized representative) may apply in writing to the Administrator for a review of the decision denying the claim. Review must be requested within sixty (60) days following the date the claimant received the written notice of their claim denial or else the claimant loses the right to
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review. The claimant (or representative) then has the right to review and obtain copies of all documents and other information relevant to the claim, upon request and at no charge, and to submit issues and comments in writing. The Administrator will provide written notice of their decision on review within sixty (60) days after it receives a review request. If additional time (up to sixty (60) days) is needed to review the request, the claimant (or representative) will be given written notice of the reason for the delay. This notice of extension will indicate the special circumstances requiring the extension of time and the date by which the Administrator expects to render its decision. If the claim is denied (in full or in part), the claimant will be provided a written notice explaining the specific reasons for the denial and referring to the provisions of the Plan on which the denial is based. The notice shall also include a statement that the claimant will be provided, upon request and free of charge, reasonable access to, and copies of, all documents and other information relevant to the claim and a statement regarding the claimant’s right to bring an action under Section 502(a) of ERISA.
14.Source of Payments. The Severance Benefits will be paid in cash from the general funds of Netflix; no separate fund will be established under the Plan; and the Plan will have no assets. No right of any person to receive any payment under the Plan will be any greater than the right of any other general unsecured creditor of Netflix.
15.Inalienability. In no event may any current or former employee of the Company sell, transfer, anticipate, assign or otherwise dispose of any right or interest under the Plan. At no time will any such right or interest be subject to the claims of creditors nor liable to attachment, execution or other legal process.
16.No Enlargement of Employment Rights. Neither the establishment or maintenance of the Plan, any amendment of the Plan, nor the making of any benefit payment hereunder, will be construed to confer upon any individual any right to be continued as an employee of the Company. The Company expressly reserves the right to discharge any employee at any time, with or without Cause. However, as described in the Plan, a Covered Executive may be entitled to the Severance Benefit under the Plan depending upon the circumstances of their termination of employment.
17.Successors. Any successor to Netflix of all or substantially all of Netflix’s business and/or assets (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) will assume the obligations under the Plan and agree expressly to perform the obligations under the Plan in the same manner and to the same extent as Netflix would be required to perform such obligations in the absence of a succession. For all purposes under the Plan, the term “Company” will include any successor to the Company’s business and/or assets which become bound by the terms of the Plan by operation of law, or otherwise.
18.Applicable Law. The provisions of the Plan will be construed, administered and enforced in accordance with ERISA and, to the extent applicable, the internal substantive laws of the State of California (with the exception of its conflict of laws provisions).
19.Severability. If any provision of the Plan is held invalid or unenforceable, its invalidity or unenforceability will not affect any other provision of the Plan, and the Plan will be construed and enforced as if such provision had not been included.
20.Headings. Headings in the Plan document are for purposes of reference only and will not limit or otherwise affect the meaning hereof.
21.Indemnification. Netflix hereby agrees to indemnify and hold harmless the officers and employees of the Company, and the members of their boards of directors, from all
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losses, claims, costs or other liabilities arising from their acts or omissions in connection with the administration, amendment or termination of the Plan, to the maximum extent permitted by applicable law. This indemnity will cover all such liabilities, including judgments, settlements and costs of defense. Netflix will provide this indemnity from its own funds to the extent that insurance does not cover such liabilities. This indemnity is in addition to and not in lieu of any other indemnity provided to such person by Netflix.
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SCHEDULE A
NON-CIC SEVERANCE BENEFIT
For Non-CIC Involuntary Terminations, the following schedule shall apply:
| Severance Pay | Bonus | ||||
1 times the sum of the Covered Executive’s (a) Base Salary, (b) Target Bonus, and (c) Target Annual LTI Opportunity (the sum of (a)-(c), “Current Annual Compensation”) | The Pro Rata Bonus | ||||
Defined terms used in this Schedule A shall have the meanings ascribed to them in the Netflix, Inc. Executive Officer Severance Plan, as it may be amended or restated from time to time.
[Schedule A]
SCHEDULE B
CIC SEVERANCE BENEFIT
For CIC Involuntary Terminations, the following schedule shall apply:
Severance Pay | Bonus | Benefits Period | ||||||
2 times the sum of the Covered Executive’s (a) Base Salary and (b) Target Bonus (such resulting product, “CIC Severance Pay”) | The Pro Rata Bonus | 24 months | ||||||
Defined terms used in this Schedule B shall have the meanings ascribed to them in the Netflix, Inc. Executive Officer Severance Plan, as it may be amended or restated from time to time.
[Schedule B]
Exhibit 10.4
Executive Severance and Retention Incentive Plan
Amended and Restated Effective January 1, 2024
1.Introduction. The purpose of this Executive Severance and Retention Incentive Plan (the “Plan”) is to provide assurances of specified severance benefits to eligible executives of Netflix, Inc. and its Affiliates upon certain terminations of employment and to provide specified retention incentives to eligible executives of the Company upon a Change in Control. The Company believes that the severance plan set forth in this Plan will aid the Company in attracting and retaining highly qualified individuals. In addition, the Company believes that the retention incentive set forth in this Plan will help (a) assure that the Company will have continued dedication and objectivity from the Covered Executives notwithstanding the possibility, threat or occurrence of a Change in Control and (b) provide certain Covered Executives with an incentive to continue their employment and to motivate the Covered Executives to maximize the value of the Company upon a Change in Control for the benefit of its stockholders. This Plan is an “employee welfare benefit plan,” as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended. This document constitutes both the written instrument under which the Plan is maintained and the required summary plan description for the Plan.
2.Important Terms. To help you understand how this Plan works, it is important to know the following terms:
2.1 “Administrator” means Netflix, acting through its Chief Talent Officer, or any person to whom the Administrator has delegated any authority or responsibility pursuant to Section 9, but only to the extent of such delegation.
2.2 “Affiliate” means any corporation or other entity (including, but not limited to, a limited liability company, partnership or joint venture) controlling, controlled by, or under common control with Netflix, Inc., unless otherwise excluded from the Plan. A list of Affiliates excluded from the Plan is maintained by the Plan Administrator, and the Plan Administrator has the sole discretion to determine the inclusion or exclusion of any particular Affiliate from the Plan. Entities that become Affiliates through acquisition are generally excluded from the Plan. Questions regarding whether a particular Affiliate is covered by the Plan should be directed to the Plan Administrator.
2.3 “Allocatable Compensation” means a currency-denominated annual compensation amount available for allocation by the Covered Executive between cash compensation and equity compensation as approved by (i) the Compensation Committee of the Board (the “Compensation Committee”) or other properly designated Board committee, or (ii) for a Covered Executive whose compensation is not subject to approval by a committee of the Board, their manager or other authorized individual, in either case that is in effect either (a) immediately preceding the Severance Date (with respect to the Severance Benefit) or the date of the Change of Control (with respect to the Retention Incentive), or (b) at any time within the twelve (12) month period prior to the Severance Date (with respect to the Severance Benefit) or date of the Change of Control (with respect to the Retention Incentive), whichever of (a) or (b) is greater.
2.4 “Board” means the Board of Directors of Netflix.
2.5 “Cause” means (i) an act of fraud or personal dishonesty undertaken by a Covered Executive in connection with the Covered Executive’s responsibilities as an employee that is intended to result in substantial gain or personal enrichment of the Covered Executive, (ii) a Covered Executive’s conviction of, or plea of nolo contendere to, a felony, or (iii) a
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Covered Executive’s gross misconduct in connection with the performance of the Covered Executive’s responsibilities as an employee or willful failure to perform a reasonable material component of the Covered Executive’s responsibilities as an employee.
2.6 “Change in Control” means the first to occur of any of the following:
(a) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of Netflix representing fifty percent (50%) or more of the total voting power represented by Netflix’s then outstanding voting securities; or
(b) consummation of the sale or disposition by Netflix of all or substantially all of Netflix’s assets; or
(c) The consummation of a merger or consolidation of Netflix with any other corporation, other than a merger or consolidation which would result in the voting securities of Netflix outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of Netflix, or such surviving entity or its parent outstanding immediately after such merger or consolidation; or
(d) A change in the composition of the Board, as a result of which less than a majority of the Directors are Incumbent Directors. An “Incumbent Director” means a Director who either (A) is a Director as of the Effective Date, or (B) is elected, or nominated for election, to the Board with the affirmative votes of at least a majority of those Directors whose election or nomination was not in connection with any transaction described in subsections (a), (b) or (c) or in connection with an actual or threatened proxy contest relating to the election of Directors.
2.7 “Company” means Netflix and its Affiliates.
2.8 “Covered Executive” means a common law employee employed by Netflix or an Affiliate who meets both the following criteria: (a) such employee is at the Vice President level or higher as reflected in Netflix’s or Affiliate’s human resource systems and (b) such employee is not a “Covered Executive” as defined in the Executive Officer Severance Plan.
2.9 “Director” means a member of Netflix’s Board of Directors.
2.10 “Effective Date” means July 1, 2005.
2.11 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
2.12 “Executive Officer Severance Plan” means the Netflix, Inc. Executive Officer Severance Plan, as it may be amended or restated from time to time.
2.13 “Involuntary Termination” means a termination of employment with the Company of a Covered Executive under the circumstances described in Section 3.1. For purposes of the Plan, the transfer of a Covered Executive’s employment between Netflix and its Affiliates, or between Affiliates will not be considered a termination of employment and the Covered Executive will not be entitled to receive a Severance Benefit in connection therewith.
2.14 “Netflix” means Netflix, Inc., a Delaware corporation, and any successor thereto.
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2.15 “Option” means a right granted pursuant to Netflix’s stock option plan(s) to purchase common stock of Netflix pursuant to the terms and conditions of such plan(s).
2.16 “Plan” means the Executive Severance and Retention Incentive Plan, as set forth in this document, and as hereafter amended from time to time.
2.17 “Retention Incentive” means the compensation the Covered Executive will be provided pursuant to Section 4.
2.18 “Severance Benefit” means the compensation and other benefits the Covered Executive will be provided pursuant to Section 3.
2.19 “Severance Date” means the date on which a Covered Executive experiences an Involuntary Termination.
3.Severance.
3.1 Eligibility. If at any time prior to a Change in Control, Netflix or an Affiliate terminates a Covered Executive’s employment for other than Cause, death or permanent disability such that the Covered Executive is no longer an employee of the Company, then, subject to the Covered Executive’s compliance with Section 3.3, the Covered Executive shall receive the Severance Benefit provided pursuant to this Section 3. For purposes of clarification, the severance amount set forth in 3.2 shall not be due or payable to any Covered Executive who shall have received or is eligible to receive the Retention Incentive.
3.2 Severance Benefit.
(a) Each Covered Executive who becomes eligible for a Severance Benefit under Section 3.1 shall be paid a lump sum cash payment equal to twelve (12) months of Allocatable Compensation (inclusive of any applicable notice period). Notwithstanding the foregoing, employees hired as Covered Executives shall be paid a lump sum cash payment equal to thirty-six (36) months of Allocatable Compensation (inclusive of any applicable notice period, and subject to the other provisions of this Section 3.2), provided that the Severance Benefit shall be reduced by an amount equal to one (1) month of Allocatable Compensation for each month of tenure at the Company for the Covered Executive’s first twenty four (24) months of continuous employment following hire by the Company. The purpose of the foregoing is to provide newly hired Covered Executives with 36 months Severance Benefit reducing to the standard twelve (12) months. The Severance Benefit shall be paid to the Covered Executive as soon as administratively practicable following the Severance Date, but in no event more than two and one half months following the Severance Date but subject to Section 7 and to the Covered Executive’s compliance with Section 3.3.
(b) Notwithstanding any contrary provision of the Plan, the Administrator may provide a Covered Executive with a Severance Benefit that is different than the standard 12 months Severance Benefit provided in Section 3.2(a); provided however, that any Severance Benefit provided pursuant to this Section 3.2(b) shall be no less than 12 months. Any Severance Benefit provided pursuant this Section 3.2(b) shall be in writing and executed by the Administrator.
(c) The Administrator may reduce the Severance Benefit provided in Section 3.2(a) or (b) but only with the written consent of the Covered Executive, and provided that any such reduction may be made only if in accordance with all applicable laws, including (but not limited to) Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).
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3.3 Release Agreement. As a condition to receiving a Severance Benefit under this Plan, each Covered Executive will be required to sign a waiver and release of all claims arising out of their Involuntary Termination and employment with the Company in a form reasonably satisfactory to the Chief Legal Officer of Netflix (the “Release”). The Release must be executed and irrevocably effective within the period required by the Release but in no event later than sixty (60) days following the Covered Executive’s Severance Date, inclusive of any revocation period set forth in the Release (such deadline, the “Release Deadline”). The Severance Benefit will not be paid or provided until the Release becomes irrevocably effective. If the Release does not become irrevocably effective by the Release Deadline due to action or inaction of the Covered Executive, the Covered Executive will forfeit all rights to the Severance Benefit.
Notwithstanding any contrary provision of the Plan, in order to help a Covered Executive avoid having to pay the additional twenty percent (20%) income tax under Section 409A of the Code, in the event that a Covered Executive’s Severance Date occurs at a time during the calendar year when it would be possible for the Release to become effective in the calendar year following the calendar year in which the Severance Date occurs, then the Severance Benefit owed (if any) will be paid on the first payroll date that is at least sixty (60) days following the Severance Date (but in all cases subject to Section 7).
4.Retention Incentive.
4.1 Eligibility. An individual shall be eligible for the Retention Incentive under the Plan, in the amount set forth in Section 4.2, only if the individual (i) is a Covered Executive on the date of a Change in Control, and (ii) is not eligible for a Severance Benefit under Section 3; provided, that, any individual who becomes a Covered Executive on or after March 1, 2023 is not eligible for a Retention Incentive, unless designated by the Administrator, in their discretion, as eligible for the Retention Incentive and named on a list maintained by the Administrator.
4.2 Retention Incentive. Each Covered Executive eligible for a Retention Incentive in accordance with Section 4.1 shall be entitled to receive a lump sum cash payment equal to twelve (12) months of Allocatable Compensation (inclusive of any applicable notice period). The Retention Incentive shall be paid to the Covered Executive as soon as administratively practicable following the date of the Change in Control, but in no event more than two and one-half months thereafter.
4.3 Parachute Payments. In the event that a Severance Benefit or Retention Incentive provided for in this Plan or otherwise payable or provided to the Covered Executive (i) constitutes a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this Section 4.3, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Covered Executive’s Severance Benefit or Retention Incentive hereunder shall be either
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Covered Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Netflix and the Covered Executive otherwise agree in writing, any determination required under this Section 4.3 shall be made in writing in good faith by an accounting firm chosen by the Administrator and reasonably acceptable to the Covered Executive (the “Accountants”). If a reduction in benefits is required only under the Plan, the reduction will apply to the Covered Executive’s Severance Benefit or Retention Incentive, as
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applicable. If a reduction in benefits is required under the Plan and one or more other arrangements or plans entered into with or maintained for the benefit of the Covered Executive that provides for vesting acceleration of equity awards, cash severance or retention benefits, and/or continued employee benefits coverage, the reduction will occur in the following order: the vesting acceleration of stock options or stock appreciation rights, then cash severance or retention benefits, then vesting acceleration of equity awards other than stock options or stock appreciation rights, and then Company-paid employee benefits coverage. In the event that acceleration of vesting of stock options, stock appreciation rights or other equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for the Covered Executive’s stock options, stock appreciation rights or other equity awards, as applicable. If two or more stock options, stock appreciation rights or other equity awards are granted on the same day, the stock options, stock appreciation rights or other equity awards, as applicable, will be reduced on a pro-rata basis. For purposes of making the calculations required by this Section 4.3, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Netflix and the Covered Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. Netflix shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4.3.
5.Reserved
6.Non-Duplication of Benefits. Notwithstanding any other provision in the Plan to the contrary and except as provided in this Section 6, the Severance Benefit and Retention Incentive provided hereunder shall be in lieu of any other severance and/or retention plan benefits and the Severance Benefit and Retention Incentive provided hereunder shall be reduced by any severance paid or provided to a Covered Executive under any other plan or arrangement. Notwithstanding the preceding sentence, this Section 6 shall not apply to a Covered Executive to the extent such Covered Executive’s separate, written employment, retention or other agreement with the Company explicitly exempts the Covered Executive from the preceding sentence. Notwithstanding any other provision in the Plan to the contrary, effective on and after January 1, 2024, if an individual is eligible to participate in the Executive Officer Severance Plan, they shall not be eligible to receive any payments or benefits under the Plan, including the Severance Benefit or the Retention Incentive.
7.Section 409A.
7.1 Notwithstanding anything herein to the contrary, it is the intent that the Retention Incentives and the Severance Benefits payable under the Plan satisfy the requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations and be exempt from Section 409A of the Code and the final regulations and any guidance promulgated thereunder (“Section 409A”). If the Severance Benefits (or any portion thereof), when considered together with any other severance payments or separation benefits, are considered deferred compensation subject to Section 409A (together, the “Deferred Compensation Separation Benefits”), no Deferred Compensation Separation Benefits or other severance benefits that otherwise are exempt from Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be considered due or payable until the Covered Executive has incurred a “separation from service” within the meaning of Section 409A. In addition, if the Covered Executive is a “specified employee” within the meaning of Section 409A at the time of the Covered Executive’s separation from service (other than due to death), then any Deferred Compensation Separation Benefits otherwise due to the Covered Executive on or within the six (6) month period following the Covered Executive’s separation from service will accrue during such six (6) month period and will become payable in a lump sum payment (less applicable
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withholding taxes) on the date six (6) months and one (1) day following the date of the Covered Executive’s separation from service. All subsequent payments, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if the Covered Executive dies following their separation but prior to the six (6) month anniversary of their date of separation, then any payments delayed in accordance with this paragraph will be payable in a lump sum (less applicable withholding taxes) to the Covered Executive’s estate as soon as administratively practicable after the date of the Covered Executive’s death and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit.
7.2 Each payment and benefit payable under the Plan is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. Any payment or benefit that satisfies the requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations shall not constitute a Deferred Compensation Separation Benefit. Any payment or benefit that entitles the Covered Executive to taxable reimbursements or taxable in-kind benefits covered by Section 1.409A-1(b)(9)(v) shall not constitute a Deferred Compensation Separation Benefit. Any severance payment or portion thereof that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit shall not constitute a Deferred Compensation Separation Benefit. For this purpose, “Section 409A Limit” will mean the lesser of two (2) times: (A) the Covered Executive’s annualized compensation based upon the annual rate of pay paid to Covered Executive during his or her taxable year preceding the Covered Executive’s taxable year of the Covered Executive’s separation from service as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with respect thereto; or (B) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the Covered Executive’s employment is terminated.
7.3 It is the intent of this Plan to comply with the requirements of Section 409A so that none of the payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. Notwithstanding anything to the contrary in the Plan, including but not limited to Section 11, Netflix reserves the right to amend the Plan as it deems necessary or advisable, in its sole discretion and without the consent of the Covered Executives, to comply with Section 409A of the Code or to otherwise avoid income recognition under Section 409A of the Code prior to the actual payment of Retention Incentives or Severance Benefits or imposition of any additional tax (provided that no such amendment shall materially reduce the benefits provided hereunder).
8.Withholding. The Company will withhold from any Severance Benefit and Retention Incentive all federal, state, local and other taxes required to be withheld therefrom and any other required payroll deductions.
9.Administration. Netflix is the administrator of the Plan (within the meaning of section 3(16)(A) of ERISA). The Plan will be administered and interpreted by the Administrator (in their sole discretion). The Administrator is the “named fiduciary” of the Plan for purposes of ERISA and will be subject to the fiduciary standards of ERISA when acting in such capacity. Any decision made or other action taken by the Administrator prior to a Change in Control with respect to the Plan, and any interpretation by the Administrator of any term or condition of the Plan prior to a Change in Control, or any related document, will be conclusive and binding on all persons and be given the maximum possible deference allowed by law. Following a Change in Control, any decision made or other action taken by the Administrator with respect to the Plan, and any interpretation by the Administrator of any term or condition of the Plan, or any related document that (i) does not affect the benefits payable under the Plan shall not be subject to
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review unless found to be arbitrary and capricious or (ii) does affect the benefits payable under the Plan shall not be subject to review unless found to be unreasonable or not to have been made in good faith. The Administrator has the authority to act for the Company (in a non-fiduciary capacity) as to any matter pertaining to the Plan; provided, however, that this authority does not apply with respect to (a) Netflix’s power to amend or terminate the Plan or (b) any action that could reasonably be expected to increase significantly the cost of the Plan (which is subject to the prior approval of the [senior officer] of Netflix). The Administrator may delegate in writing to any other person all or any portion of their authority or responsibility with respect to the Plan.
10.Eligibility to Participate. The Administrator will not be excluded from participating in the Plan if otherwise eligible, but the Administrator is not entitled to act or pass upon any matters pertaining specifically to their own benefit or eligibility under the Plan. A senior officer of Netflix, Inc. will act upon any matters pertaining specifically to the benefit or eligibility of the Administrator under the Plan.
11.Amendment or Termination. The Board and the Compensation Committee reserve the right to amend or terminate the Plan at any time provided that (a) as the Plan relates to each individual who was a Covered Executive on the Effective Date, without such Covered Executive’s written consent, the Plan may not be amended or terminated so as to reduce the amount of the Severance Benefit or Retention Incentive payable to the Covered Executive or to restrict the Covered Executive’s eligibility for a Severance Benefit or Retention Incentive, and (b) as the Plan relates to each individual who first becomes a Covered Executive after the Effective Date, (1) the Plan may be amended or terminated before such individual becomes a Covered Executive, and (2) after such individual becomes a Covered Executive, without such Covered Executive’s written consent, the Plan may not be amended or terminated so as to reduce the amount of the Severance Benefit and Retention Incentive payable to the Covered Executive or to restrict the Covered Executive’s eligibility for a Severance Benefit or Retention Incentive. Any amendment or termination of the Plan will be in writing. Any action of Netflix in amending or terminating the Plan will be taken in a non-fiduciary capacity. Upon a Change in Control and following the receipt by all eligible Covered Executives of the Retention Incentive provided for herein, this Plan shall have no further force or effect.
12.Claims Procedure. Any employee or other person who believes they are entitled to any payment under the Plan may submit a claim in writing to the Administrator within ninety (90) days of the earlier of (i) the date the claimant learned the amount of their Severance Benefit or Retention Incentive under the Plan or (ii) the date the claimant learned that the claimant will not be entitled to any benefits under the Plan. If the claim is denied (in full or in part), the claimant will be provided a written notice explaining the specific reasons for the denial and referring to the provisions of the Plan on which the denial is based. The notice will also describe any additional information needed to support the claim and the Plan’s procedures for appealing the denial. The denial notice will be provided within ninety (90) days after the claim is received. If special circumstances require an extension of time (up to ninety (90) days), written notice of the extension will be given within the initial ninety (90) day period. This notice of extension will indicate the special circumstances requiring the extension of time and the date by which the Administrator expects to render its decision on the claim.
13.Appeal Procedure. If the claimant’s claim is denied, the claimant (or their authorized representative) may apply in writing to the Administrator for a review of the decision denying the claim. Review must be requested within sixty (60) days following the date the claimant received the written notice of their claim denial or else the claimant loses the right to review. The claimant (or representative) then has the right to review and obtain copies of all documents and other information relevant to the claim, upon request and at no charge, and to submit issues and comments in writing. The Administrator will provide written notice of their decision on review within sixty (60) days after it receives a review request. If additional time
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(up to sixty (60) days) is needed to review the request, the claimant (or representative) will be given written notice of the reason for the delay. This notice of extension will indicate the special circumstances requiring the extension of time and the date by which the Administrator expects to render its decision. If the claim is denied (in full or in part), the claimant will be provided a written notice explaining the specific reasons for the denial and referring to the provisions of the Plan on which the denial is based. The notice shall also include a statement that the claimant will be provided, upon request and free of charge, reasonable access to, and copies of, all documents and other information relevant to the claim and a statement regarding the claimant’s right to bring an action under Section 502(a) of ERISA.
14.Source of Payments. All Severance Benefits and Retention Incentives will be paid in cash from the general funds of Netflix; no separate fund will be established under the Plan; and the Plan will have no assets. No right of any person to receive any payment under the Plan will be any greater than the right of any other general unsecured creditor of Netflix.
15.Inalienability. In no event may any current or former employee of the Company sell, transfer, anticipate, assign or otherwise dispose of any right or interest under the Plan. At no time will any such right or interest be subject to the claims of creditors nor liable to attachment, execution or other legal process.
16.No Enlargement of Employment Rights. Neither the establishment or maintenance of the Plan, any amendment of the Plan, nor the making of any benefit payment hereunder, will be construed to confer upon any individual any right to be continued as an employee of the Company. The Company expressly reserves the right to discharge any employee at any time, with or without Cause. However, as described in the Plan, a Covered Executive may be entitled to the Severance Benefit under the Plan depending upon the circumstances of their termination of employment.
17.Successors. Any successor to Netflix of all or substantially all of Netflix’s business and/or assets (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) will assume the obligations under the Plan and agree expressly to perform the obligations under the Plan in the same manner and to the same extent as Netflix would be required to perform such obligations in the absence of a succession. For all purposes under the Plan, the term “Company” will include any successor to the Company’s business and/or assets which become bound by the terms of the Plan by operation of law, or otherwise.
18.Applicable Law. The provisions of the Plan will be construed, administered and enforced in accordance with ERISA and, to the extent applicable, the internal substantive laws of the State of California (with the exception of its conflict of laws provisions).
19.Severability. If any provision of the Plan is held invalid or unenforceable, its invalidity or unenforceability will not affect any other provision of the Plan, and the Plan will be construed and enforced as if such provision had not been included.
20.Headings. Headings in this Plan document are for purposes of reference only and will not limit or otherwise affect the meaning hereof.
21.Indemnification. Netflix hereby agrees to indemnify and hold harmless the officers and employees of the Company, and the members of their boards of directors, from all losses, claims, costs or other liabilities arising from their acts or omissions in connection with the administration, amendment or termination of the Plan, to the maximum extent permitted by applicable law. This indemnity will cover all such liabilities, including judgments, settlements and costs of defense. Netflix will provide this indemnity from its own funds to the extent that
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insurance does not cover such liabilities. This indemnity is in addition to and not in lieu of any other indemnity provided to such person by Netflix.
22. Additional Information.
| Plan Name: | Executive Severance and Retention Incentive Plan | ||||
| Plan Sponsor: | Netflix, Inc. | ||||
| 121 Albright Way | |||||
| Los Gatos, CA 95032 | |||||
| Identification Numbers: | EIN: - 77-0467272 | ||||
| PLAN: 501 | |||||
| Plan Year: | Calendar year | ||||
| Plan Administrator: | Netflix, Inc. | ||||
Attention: Chief Talent Officer | |||||
| 121 Albright Way | |||||
| Los Gatos, CA 95032 | |||||
| (408) 540-3700 | |||||
| Agent for Service of Legal Process: | Netflix, Inc. | ||||
Attention: Chief Legal Officer | |||||
| 121 Albright Way | |||||
| Los Gatos, CA 95032 | |||||
| (408) 540-3700 | |||||
| Type of Plan: | Bonus Plan/Severance Plan/Employee Welfare Benefit Plan | ||||
| Plan Costs: | The cost of the Plan is paid by the Plan Sponsor. | ||||
23. Statement of ERISA Rights.
As a Covered Executive (“you”) under the Plan, you have certain rights and protections under ERISA:
(a) You may examine (without charge) all Plan documents, including any amendments and copies of all documents filed with the U.S. Department of Labor, such as the Plan’s annual report (IRS Form 5500). These documents are available for your review in Netflix’s Human Resources Department.
(b) You may obtain copies of all Plan documents and other Plan information upon written request to the Plan Administrator. A reasonable charge may be made for such copies.
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In addition to creating rights for Covered Executives, ERISA imposes duties upon the people who are responsible for the operation of the Plan. The people who operate the Plan (called “fiduciaries”) have a duty to do so prudently and in the interests of you and the other Covered Executives. No one, including Netflix, Inc., any Affiliate or any other person, may fire you or otherwise discriminate against you in any way to prevent you from obtaining a benefit under the Plan or exercising your rights under ERISA. If your claim for a severance benefit is denied, in whole or in part, you must receive a written explanation of the reason for the denial. You have the right to have the denial of your claim reviewed. (The claim review procedure is explained in Sections 12 and 13 above.)
Under ERISA, there are steps you can take to enforce the above rights. For instance, if you request materials and do not receive them within thirty (30) days, you may file suit in a federal court. In such a case, the court may require the Plan Administrator to provide the materials and to pay you up to $110 a day until you receive the materials, unless the materials were not sent because of reasons beyond the control of the Plan Administrator. If you have a claim which is denied or ignored, in whole or in part, you may file suit in a state or federal court. If it should happen that you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or you may file suit in a federal court.
In any case, the court will decide who will pay court costs and legal fees. If you are successful, the court may order the person you have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and fees, for example, if it finds that your claim is frivolous.
If you have any questions regarding the Plan, please contact the Plan Administrator. If you have any questions about this statement or about your rights under ERISA, you may contact the nearest area office of the Employee Benefits Security Administration (formerly the Pension and Welfare Benefits Administration), U.S. Department of Labor, listed in your telephone directory, or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W. Washington, D.C. 20210. You may also obtain certain publications about your rights and responsibilities under ERISA by calling the publications hotline of the Employee Benefits Security Administration.
24. Participation by Affiliates.
By participating in the Plan an Affiliate is deemed to agree to all of its terms, including (but not limited to) the provisions granting exclusive authority to Netflix to amend the Plan and granting exclusive authority to the Administrator to administer and interpret the Plan. The liabilities incurred under the Plan to the Covered Executives shall be solely the liabilities of Netflix. However, the costs of the Plan may be apportioned among Netflix and its Affiliates as the Administrator (in its discretion) may determine. All acts required of the Company under the Plan may be performed by Netflix for itself, and its Affiliates, as determined by the Administrator (in its discretion).
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