Obligation NetFlix 3.625% ( XS2072829950 ) en EUR

NetFlix

103.91 % ▲

Etas-Unis

XS2072829950 ( en EUR )

3.625% par an ( paiement annuel )

15/06/2030

Prospectus brochure de l'obligation NetFlix XS2072829950 en EUR 3.625%, échéance 15/06/2030

100 000 EUR

1 100 000 000 EUR

15/12/2024 ( Dans 211 jours )

L'Obligation émise par NetFlix ( Etas-Unis ) , en EUR, avec le code ISIN XS2072829950, paye un coupon de 3.625% par an.
Le paiement des coupons est annuel et la maturité de l'Obligation est le 15/06/2030

EX-4.3
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EX-4.3 3 d807273dex43.htm EX-4.3
Exhibit 4.3
INDENTURE
Dated as of October 25, 2019
Between
NETFLIX, INC.
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
3.625% SENIOR NOTES DUE 2030
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CROSS-REFERENCE TABLE*
Trust Indenture Act Section
Indenture Section
310(a)(1)
7.10
(a)(2)
7.10
(a)(3)
N.A.
(a)(4)
N.A.
(a)(5)
7.10
(b)
7.10
(c)
N.A.
311(a)
7.11
(b)
7.11
(c)
N.A.
312(a)
2.05
(b)
11.03
(c)
11.03
313(a)
7.06
(b)(1)
N.A.
(b)(2)
7.06;7.07
(c)
7.06;12.02
(d)
7.06
314(a)
4.03;11.02; 12.05
(b)
N.A.
(c)(1)
11.04
(c)(2)
11.04
(c)(3)
N.A.
(d)
N.A.
(e)
11.05
(f)
N.A.
315(a)
7.01
(b)
7.05;11.02
(c)
7.01
(d)
7.01
(e)
6.14
316(a)(last sentence)
2.09
(a)(1)(A)
6.05
(a)(1)(B)
6.04
(a)(2)
N.A.
(b)
6.07
(c)
2.12;9.04
317(a)(1)
6.08
(a)(2)
6.12
(b)
2.04
318(a)
11.01
(b)
N.A.
(c)
11.01
N.A. means not applicable.
* This Cross-Reference Table is not part of this Indenture.
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
1
Section 1.01
Definitions
1
Section 1.02
Other Definitions
14
Section 1.03
Rules of Construction
16
Section 1.04
Incorporation by Reference of Trust Indenture Act
17
Section 1.05
Acts of Holders
18
ARTICLE 2 THE NOTES
20
Section 2.01
Form and Dating; Terms
20
Section 2.02
Execution and Authentication
20
Section 2.03
Registrar and Paying Agent
21
Section 2.04
Money Held by the Paying Agent
21
Section 2.05
Holder Lists
22
Section 2.06
Transfer and Exchange
22
Section 2.07
Replacement Notes
23
Section 2.08
Outstanding Notes
23
Section 2.09
Treasury Notes
23
Section 2.10
Temporary Notes
24
Section 2.11
Cancellation
24
Section 2.12
Defaulted Interest
24
Section 2.13
Common Code or ISIN Numbers
25
ARTICLE 3 REDEMPTION
25
Section 3.01
Notices to Trustee
25
Section 3.02
Selection of Notes to Be Redeemed or Purchased
25
Section 3.03
Notice of Redemption
26
Section 3.04
Effect of Notice of Redemption
26
Section 3.05
Deposit of Redemption or Purchase Price
27
Section 3.06
Notes Redeemed or Purchased in Part
27
Section 3.07
Optional Redemption
27
Section 3.08
Sinking Fund
28
ARTICLE 4 COVENANTS
28
Section 4.01
Payment of Notes; Additional Amounts
28
Section 4.02
Maintenance of Office or Agency
28
Section 4.03
Provision of Financial Information
29
Section 4.04
Compliance Certificate
29
Section 4.05
[Reserved]
30
Section 4.06
Stay, Extension and Usury Laws
30
Section 4.07
Limitation on Subsidiary Debt
30
Section 4.08
Limitation on Sale and Lease-back Transactions
32
Section 4.09
Limitation on Liens
33
Section 4.10
Corporate Existence
33
Section 4.11
Offer to Repurchase Upon Change of Control Triggering Event
33
Section 4.12
Additional Note Guarantors
35
Section 4.13
[Reserved]
36
Section 4.14
Further Instruments and Acts
36
Section 4.15
Additional Interest Notice
36
Section 4.16
Maintenance of Listing
36
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Page
ARTICLE 5 SUCCESSORS
37
Section 5.01
Consolidation, Merger and Conveyance, Transfer and Lease of Assets
37
Section 5.02
Successor Entity Substituted
38
ARTICLE 6 DEFAULTS AND REMEDIES
38
Section 6.01
Events of Default
38
Section 6.02
Acceleration
39
Section 6.03
Other Remedies
40
Section 6.04
Waiver of Past Defaults
40
Section 6.05
Control by Majority
41
Section 6.06
Limitation on Suits
41
Section 6.07
Rights of Holders to Receive Payment
42
Section 6.08
Collection Suit by Trustee
42
Section 6.09
Restoration of Rights and Remedies
42
Section 6.10
Rights and Remedies Cumulative
42
Section 6.11
Delay or Omission Not Waiver
42
Section 6.12
Trustee May File Proofs of Claim
42
Section 6.13
Priorities
43
Section 6.14
Undertaking for Costs
43
ARTICLE 7 TRUSTEE
43
Section 7.01
Duties of Trustee
43
Section 7.02
Rights of Trustee
44
Section 7.03
Individual Rights of Trustee
46
Section 7.04
Trustee's Disclaimer
46
Section 7.05
Notice of Defaults
46
Section 7.06
Reports by Trustee to Holders of the Notes
46
Section 7.07
Compensation and Indemnity
46
Section 7.08
Replacement of Trustee
47
Section 7.09
Successor Trustee by Merger, etc.
48
Section 7.10
Eligibility; Disqualification
48
Section 7.11
Preferential Collection of Claims Against the Company
48
ARTICLE 8 DISCHARGE AND DEFEASANCE
49
Section 8.01
Satisfaction and Discharge of Indenture
49
Section 8.02
Legal Defeasance
50
Section 8.03
Covenant Defeasance
50
Section 8.04
Application by Paying Agent of Funds Deposited for Payment of Notes
51
Section 8.05
Repayment of Moneys Held by Paying Agent
51
Section 8.06
Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
51
Section 8.07
Reinstatement
51
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
52
Section 9.01
Without Consent of Holders
52
Section 9.02
With Consent of Holders
53
Section 9.03
Compliance with Trust Indenture Act
53
Section 9.04
Revocation and Effect of Consents
53
Section 9.05
Notation on or Exchange of Notes
54
Section 9.06
Trustee to Sign Amendments, etc.
54
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Page
ARTICLE 10 GUARANTEES
54
Section 10.01
Note Guarantee
54
Section 10.02
Limitation on Guarantor Liability
56
Section 10.03
Execution and Delivery
56
Section 10.04
Subrogation
56
Section 10.05
Benefits Acknowledged
56
Section 10.06
Release of Note Guarantees
57
ARTICLE 11 MISCELLANEOUS
57
Section 11.01
Trust Indenture Act Controls
57
Section 11.02
Notices
57
Section 11.03
Communication by Holders with Other Holders
59
Section 11.04
Certificate and Opinion as to Conditions Precedent
59
Section 11.05
Statements Required in Certificate or Opinion
60
Section 11.06
Rules by Trustee and Agents
60
Section 11.07
No Personal Liability of Stockholders, Partners, Officers or Directors
60
Section 11.08
Governing Law, Consent to Jurisdiction
60
Section 11.09
Waiver of Jury Trial
61
Section 11.10
Force Majeure
61
Section 11.11
No Adverse Interpretation of Other Agreements
61
Section 11.12
Successors
61
Section 11.13
Severability
61
Section 11.14
Counterpart Originals
61
Section 11.15
Table of Contents, Headings, etc.
61
Section 11.16
U.S.A. PATRIOT Act
61
Section 11.17
[Reserved]
62
Section 11.18
Judgment Currency
62
Appendix A Provisions Relating to Initial Notes and Additional Notes
Exhibit A
Form of Note
Exhibit B
Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors
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INDENTURE, dated as of October 25, 2019 between Netflix, Inc., a Delaware corporation, and Wells Fargo Bank, National Association, a
national banking association, as Trustee.
W I T N E S S E T H
WHEREAS, the Company has duly authorized the creation of and issue of 1,100,000,000 aggregate principal amount of 3.625% Senior
Notes due 2030 (the "Initial Notes"); and
WHEREAS, the Company has received good and valuable consideration for the execution and delivery of this Indenture and the Notes;
WHEREAS, all necessary acts and things have been done to make: (1) the Notes, when duly issued and executed by the Company and
authenticated and delivered hereunder, the legal, valid and binding obligations of the Company and (2) this Indenture a legal, valid and binding
agreement of the Company in accordance with the terms of this Indenture;
NOW, THEREFORE, the Company and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of
the Holders of the Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"Additional Interest" means all additional interest owing on the Notes pursuant and subject to Section 6.02(c).
"Additional Notes" means additional Notes (other than Initial Notes) issued from time to time under this Indenture in accordance with
Section 2.01.
"Adjusted Bund Rate" means, with respect to any redemption date for the Notes, the rate per annum (which, if less than zero, shall be
deemed to be zero) equal to the annual equivalent yield to maturity of the Comparable German Bund Issue, assuming a price for the Comparable
German Bund Issue (expressed as a percentage of its principal amount) equal to the Comparable German Bund Price for such redemption date, plus
0.50%.
"Affiliate" of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings that correspond to the foregoing.
"Agents" means any Registrar or Paying Agent.
"Aggregate Debt" means the sum of the following as of the date of determination: (1) the lesser of (A) the then outstanding aggregate
principal amount of the Indebtedness of the Company and its Domestic Restricted Subsidiaries incurred after the Issue Date and secured by Liens not
permitted under Section 4.09(a) and (B) the fair market value of the assets subject to the Liens referred to in clause (A), as
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determined in good faith by the Board of Directors; (2) the then outstanding aggregate principal amount of all consolidated Indebtedness of the
Company and its Domestic Restricted Subsidiaries that constitutes Subsidiary Debt incurred after the Issue Date and not permitted under
Section 4.07(b); provided, that any such Subsidiary Debt will be excluded from this clause (2) to the extent that such Subsidiary Debt is included in
clause (1) or (3) of this definition; and (3) the then existing Attributable Liens of the Company and its Domestic Restricted Subsidiaries in respect of
sale and lease-back transactions entered into after the Issue Date pursuant to Section 4.08(b); provided, that any such Attributable Liens will be excluded
from this clause (3) to the extent that such Indebtedness relating thereto is included in clause (1) or (2) of this definition. For the avoidance of doubt, in
no event will the amount of Indebtedness (including Guarantees of such Indebtedness) be required to be included in the calculation of Aggregate Debt
more than once despite the fact that more than one Person is liable with respect to such Indebtedness and despite the fact that such Indebtedness is
secured by the assets of more than one Person.
"Applicable Premium" means, with respect to any Note on any applicable redemption date, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of:
(a) the present value at such redemption date of all scheduled interest and principal payments due on the Note (excluding accrued
but unpaid interest, if any, to, but excluding, the redemption date), computed using a discount rate equal to the Adjusted Bund Rate as of such
redemption date; over
(b) the principal amount of such Note.
"Attributable Liens" means in connection with a sale and lease-back transaction the lesser of: (1) the fair market value of the assets subject
to such transaction, as determined in good faith by the Company's Board of Directors; and (2) the present value (discounted at a rate of 10% per annum
compounded monthly) of the obligations of the lessee for rental payments during the shorter of the term of the related lease or the period through the
first date on which the Company or the applicable Subsidiary may terminate the lease.
"Authority" shall mean The International Stock Exchange Authority Limited, which is licensed to operate an investment exchange by the
Guernsey Financial Services Commission under the Protection of Investors (Bailiwick of Guernsey) Law, 1987, as amended.
"Bankruptcy Code" means the United States Bankruptcy Code, codified as Title 11, U.S. Code § 101 1330, as amended.
"Board of Directors" means the Board of Directors of the Company or any committee thereof duly authorized to act on behalf of such
Board.
"Business Day" means a day on which commercial banks and foreign exchange markets are open for business in the State of New York
and London, and which is a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer System (TARGET2) is
operating.
"Capital Stock" means, with respect to any Person, any and all shares of stock of a corporation, partnership interests or other equivalent
interests (however designated, whether voting or non-voting) in such Person's equity, entitling the holder to receive a share of the profits and losses, and
a distribution of assets, after liabilities, of such Person.
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"Change of Control" means:
(1) the Company becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote,
written notice or otherwise) that any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), is or has become the
"beneficial owner" (as such term is used in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of the Voting Stock of the Company;
provided, however, that for purposes of this clause (1) such person or group shall be deemed to have "beneficial ownership" of all shares that any such
person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time, directly or indirectly; and
provided, further, that a transaction will not be deemed to involve a Change of Control under this clause (1) if (a) the Company becomes a direct or
indirect wholly owned subsidiary of a holding company, and (b)(i) the direct or indirect holders of the Voting Stock of such holding company
immediately following that transaction are substantially the same as the holders of the Company's Voting Stock immediately prior to that transaction or
(ii) immediately following that transaction no "person" or "group" (other than a holding company satisfying the requirements of this sentence) is the
beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company; or
(2) the Company sells, conveys, transfers or leases (either in one transaction or a series of related transactions) all or substantially all
assets of the Company and its Subsidiaries taken as a whole to, or merges or consolidates with, a Person (other than the Company or any of its
Subsidiaries), other than any such merger or consolidation where the shares of the Company's Voting Stock outstanding immediately prior to such
transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person or parent entity thereof immediately
after giving effect to such transaction.
"Change of Control Triggering Event" means the occurrence of (1) a Change of Control that is accompanied or followed by a downgrade
of the Notes within the Ratings Decline Period for such Change of Control by each of Moody's and S&P (or, in the event Moody's or S&P or both shall
cease rating the Notes (for reasons outside the control of the Company) and the Company shall select any other nationally recognized rating agency, the
equivalent of such ratings by such other nationally recognized rating agency) and (2) the rating of the Notes on any day during such Ratings Decline
Period is below the lower of the rating by such nationally recognized rating agency in effect (a) immediately preceding the first public announcement of
the Change of Control (or occurrence thereof if such Change of Control occurs prior to public announcement) and (b) on the Issue Date.
"Company" means Netflix, Inc. and any successor thereto.
"Comparable German Bund Issue" means, with respect to the Notes, that German Bundesanleihe security selected by the Quotation Agent
as having a fixed maturity most nearly equal to the remaining term of the Notes (measured from the redemption date) that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new issues of euro denominated corporate debt securities of a maturity most
nearly equal to the remaining term of the Notes (measured from the redemption date).
"Comparable German Bund Price" means, with respect to any redemption date, the average of three, or if not possible, such lesser number
as is obtained by the Quotation Agent, Reference German Bund Dealer Quotations for such redemption date.
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"Consolidated EBITDA" means, with respect to any Person for any Measurement Period, the sum of, without duplication, the amounts for
such period, taken as a single accounting period, of: (1) Consolidated Net Income; (2) Consolidated Non-cash Charges; (3) Consolidated Interest
Expense; (4) Consolidated Income Tax Expense; (5) restructuring expenses and charges; (6) any expenses or charges related to any equity offering,
Investment, recapitalization or incurrence of Indebtedness not prohibited under this Indenture (whether or not successful) or related to the issuance of
the Notes (including, for the avoidance of doubt, the expenses and/or charges related to the offering of the sale of the USD Notes); (7) costs or accruals
or reserves incurred in connection with acquisitions after the Issue Date; and (8) any costs or expenses incurred by the Company or any Subsidiary
pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any stock subscription or
shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Company or net cash
proceeds of an issuance of Equity Interests of the Company (other than Disqualified Equity Interests).
Consolidated EBITDA shall be calculated after giving effect on a pro forma basis for the applicable Measurement Period to any asset sales
or other dispositions or acquisitions, investments, mergers, consolidations and discontinued operations (as determined in accordance with GAAP) by
such Person and its Subsidiaries (1) that have occurred during such Measurement Period or at any time subsequent to the last day of such Measurement
Period and on or prior to the date of the transaction in respect of which Consolidated EBITDA is being determined and (2) that the Company determines
in good faith are outside the ordinary course of business, in each case as if such asset sale or other disposition or acquisition, investment, merger,
consolidation or disposed operation occurred on the first day of such Measurement Period. For purposes of this definition, pro forma calculations shall
be made in accordance with Article 11 of Regulation S-X under the Securities Act; provided that such pro forma calculations may include operating
expense reductions for such period resulting from the transaction which is being given pro forma effect that are reasonably identifiable and factually
supportable and have been realized or for which the steps necessary for realization have been taken or have been identified and are reasonably expected
to be taken within one year following any such transaction (which operating expense reductions are reasonably expected to be sustainable); provided,
further, that the Company shall not be required to give pro forma effect to any transaction that it does not in good faith deem material. Such pro forma
calculations shall be made in good faith by a responsible financial or accounting officer of the Company.
"Consolidated Income Tax Expense" means, with respect to any Person for any period, the provision for federal, state, local and foreign
income taxes of such Person and its Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP paid or accrued during
such period, including any penalties and interest related to such taxes or arising from any tax examinations, to the extent the same were deducted in
computing Consolidated Net Income.
"Consolidated Interest Expense" means, with respect to any Person for any period, without duplication, the total net interest expense of
such Person and its Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP to the extent deducted in calculating
Consolidated Net Income, of such Person and its Subsidiaries, including, without limitation: (1) any amortization of debt discount; (2) the net cost under
any Swap Contract in respect of interest rate protection (including any amortization of discounts); (3) the interest portion of any deferred payment
obligation; (4) all commissions, discounts and other fees and charges owed with respect to letters of credit, bankers' acceptances, financing activities or
similar activities; (5) all accrued interest; (6) the interest component of Finance Lease obligations paid, accrued and/or scheduled to be paid or accrued
by such Person and its Subsidiaries during such period determined on a consolidated basis in accordance with GAAP; (7) all capitalized interest of such
Person and its Subsidiaries for such period; and (8) the amount of any interest expense attributable to minority equity interests of third parties in any
non-wholly owned Subsidiary.
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"Consolidated Net Income" means, with respect to any Person, for any period, the consolidated net income (or loss) of such Person and its
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to the extent included in calculating such net income, by excluding,
without duplication: (1) all extraordinary gains or losses (net of fees and expense relating to the transaction giving rise thereto), income, expenses or
charges; (2) the portion of net income of such Person and its Subsidiaries allocable to minority interest in unconsolidated Persons (provided, however,
that net income of any such unconsolidated Person or Subsidiary shall be included to the extent that cash dividends or distributions have actually been
received by such Person); (3) gains or losses in respect of any asset sales outside of the ordinary course of business by such Person or one of its
Subsidiaries (net of fees and expenses relating to the transaction giving rise thereto), on an after-tax basis; (4) the net income (loss) from any disposed or
discontinued operations or any net gains or losses on disposed or discontinued operations, on an after-tax basis; (5) any gain or loss realized as a result
of the cumulative effect of a change in accounting principles; (6) any net after-tax gains or losses attributable to the early extinguishment or conversion
of indebtedness, derivative instruments or other long-term liabilities; (7) non-cash gains, losses, income and expenses resulting from the application of
fair value accounting to certain derivative instruments as required by Accounting Standards Codification Topic 815 or any related subsequent
Accounting Standards Codification Topics; and (8) gains or losses resulting from currency fluctuations.
In addition, to the extent not already included in Consolidated Net Income of such Person and its Subsidiaries, notwithstanding anything to
the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and
reimbursements of any expenses or charges that are covered by indemnification or other reimbursement provisions in connection with any Investment or
sale, conveyance, transfer or disposition of assets not prohibited under this Indenture.
"Consolidated Non-cash Charges" means, with respect to any Person for any period, the aggregate depreciation, amortization (including
amortization of goodwill, other intangibles, deferred financing fees, debt issuance costs, commissions, fees and expenses), impairment charges or asset
write-off or write-downs, non-cash compensation expense incurred in connection with the issuance of Equity Interests to any director, officer, employee
or consultant of such Person or any Subsidiary, and other non-cash expenses of such Person and its Subsidiaries reducing Consolidated Net Income of
such Person and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charges constituting
an extraordinary item or loss and excluding any such charges constituting an extraordinary item or loss or any charge which requires an accrual of or a
reserve for cash charges for any future period); provided that Consolidated Non-cash Charges shall not include the amortization of content library.
"Consolidated Subsidiaries" means, as of any date of determination and with respect to any Person, those Subsidiaries of that Person
whose financial data is, in accordance with GAAP, reflected in that Person's consolidated financial statements.
"Content" means rights to audio/visual content, and any rights in assets related to the acquisition, development, production or licensing of
such content, and the products and proceeds thereof.
"Content Acquisition Transaction" means any purchase (which includes the development, production, licensing of Content or other
arrangement for the acquisition of Content, including through the acquisition of one or more entities whose primary assets are Content) of any Content
by the Company or any Subsidiary.
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