{"id":39396,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-netflix-inc-and-w-barry-mccarthy.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-netflix-inc-and-w-barry-mccarthy","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-netflix-inc-and-w-barry-mccarthy.html","title":{"rendered":"Employment Agreement &#8211; NetFlix Inc. and W. Barry McCarthy"},"content":{"rendered":"<pre> April 19, 1999                            (LETTERHEAD OF NETFLIX.COM)\n\n\n\n \nW. Barry McCarthy\n113 Gallup Road\nPrinceton, NJ 08540\n\n\nDear Barry:\n\nOn behalf of NetFlix, Inc., it is my pleasure to offer to you for the position\nof Chief Financial Officer reporting to Reed Hastings, CEO. Your annual salary\nwill be $170,000 to be paid bi-weekly. You will also receive an annual bonus\ntargeted at $20,000.00 based on mutually determined factors and paid in six-\nmonth increments.\n\nIn addition, we are pleased to offer you an option to purchase 330,000 shares of\nthe Company's Common Stock, subject to final approval by the Board of Directors.\nThe purchase price will be equal to the fair market value at the date of the\ngrant in accordance with the NetFlix, Inc. 1997 Stock Plan. These options will\nvest over four years with one year cliff vesting and monthly vesting thereafter.\nShould NetFlix.com be acquired, 50% (fifty percent) of these unvested options,\nor 12 months worth whichever is greater, will vest immediately. If the Company\nis acquired prior to May 1, 2000, total vested options shall be 206,250.\n\nThe Company will provide relocation assistance for you and your family to\nrelocate from Princeton, New Jersey to the San Francisco Bay Area to a cap of\n$50,000. This does not include your temporary travel and short term\naccommodations until your family joins you (anticipated to be July 1999). These\nexpenses will be either pre-paid by the Company or receipted and reimbursed to\nyou.\n\nAs a full-time employee of NetFlix, you are entitled to standard company\nemployee benefits such as vacation, sick leave and full medical insurance.\n\nIt should be noted that as a condition of employment, you will be required to\nsign an agreement which addresses the issues of confidentiality, conflicts of\ninterest, non-competition, and patent assignments. Additionally, on your first\nday of employment, you will be required to provide the Company documentary\nevidence of your identity and eligibility for employment in the United States to\nsatisfy the requirements of Employment Eligibility Verifications (Form I-9) as\nrequired by Federal law.\n\nWhile we hope and expect that this will be the beginning of a long and rewarding\nemployment relationship, your employment is at-will, and either you or NetFlix\nmay terminate this employment relationship at anytime and for any reason, with\nor without cause. We will provide you severance of six months with continued\nsalary, and benefits if your employment is terminated for reason other than\ncause during your first year of employment.\n\nThe entire NetFlix team is looking forward to working with you!\n\nSincerely,\n\n\/s\/ Reed Hastings\n\nReed Hastings\nCEO\n\nAgreed to and Accepted:\n\n\n    \/s\/ W. Barry McCarthy             4\/19\/99          4\/19\/99\n    ---------------------             -------          -------\n    W. Barry McCarthy                   Date           Start Date\n\n\n\n TYPE:  EX-10.9\n SEQUENCE:  12\n DESCRIPTION:  FOUNDER'S RESTRICTED STOCK PURCHASE AGREEMENT\n\n\n\n\n                                                                    EXHIBIT 10.9\n                                  KIBBLE, INC.\n\n                 FOUNDER'S RESTRICTED STOCK PURCHASE AGREEMENT\n\n     This Founders Stock Purchase Agreement (the 'Agreement') is made as of the\n20th day of October 1997 by and between Kibble Inc., a Delaware corporation (the\n'Company'), and Reed Hastings (the 'Founder').\n\n     WHEREAS pursuant to the formation of the Company and in order to induce\nFounder to contribute certain property to the Company, the Company will issue to\nFounder 500,000 shares of Common Stock of the Company (the 'Common Stock').\n\n     THEREFORE, in consideration of the mutual covenants and representations\nherein set forth, the parties agree as follows:\n\n     1.   Purchase. Subject to the terms and conditions of this Agreement, the\n          --------                                                            \nCompany hereby agrees to issue to Founder and Founder agrees to acquire from the\nCompany on the Closing Date (as defined below), 500,000 shares of the Common\nStock (the 'Shares') at a price of $0.05 per share, for an aggregate\nconsideration of $25,000.00 which consideration will be paid by Founder in the\nform of the assignment and transfer to the Company (the 'Exchange') of all of\nFounder's right, title and interest in and to all trade secrets, discoveries,\nconcepts, ideas, whether patentable or not, and all improvements thereto,\npresently owned by Founder relating to the Founder's business plan (the\n'Business Plan'), a description of which is attached hereto as Exhibit A.\nFounder's interest in the Business Plan is valued at $25,000.00. It is hereby\nacknowledged that the Business Plan is co-owned by Founder and Marc B. Randolph,\nand that Mr. Randolph's interest in the Business Plan will be transferred\npursuant to a separate founders' stock purchase agreement. The parties intend\nthat the Exchange shall constitute a transfer in which no gain or loss is\nrecognized in accordance with the provisions of Section 351 of the Internal\nRevenue Code of 1986, as amended.\n\n     2.   Closing.  The purchase and sale of the Shares shall occur at a Closing\n          -------                                                               \nto be held contemporaneously with the execution hereof (the 'Closing Date'). At\nthe Closing, Founder is hereby assigning, transferring and delivering to the\nCompany the consideration to be paid for the Shares, and the Company is issuing\nthe Shares registered in the name of the Founder.\n\n     3.   Repurchase Option.\n          -----------------\n\n          (a)    In the event of any voluntary or involuntary termination of the\nFounder's Continuous Status (as such term is defined below) as an employee or\nboard member of the Company for any or no reason (including death or disability)\nbefore all of the Shares are released from the Company's repurchase option\npursuant to Section 4 hereof the Company shall, upon the date of such\ntermination (as reasonably fixed and determined by the Company) have an\nirrevocable, exclusive option for a period of sixty (60) days from such date to\nrepurchase up to that number of shares which constitute the Unreleased Shares\n(as such term defined in Section 4 hereof) at the original purchase price per\nshare (the 'Repurchase Price'). Said option shall be exercised by the\n\n\n \nCompany by delivering written notice to the Founder or the Founder's executor\n(with a copy to the Escrow Holder (as such term is defined in Section 6 hereof))\nAND, at the Company's option, (i) by delivering to the Founder or the Founder's\nexecutor a check in the amount of the aggregate Repurchase Price, or (ii) by the\nCompany canceling an amount of the Founder's indebtedness to the Company equal\nto the aggregate Repurchase Price, or (iii) by a combination of (i) and (ii) so\nthat the combined payment and cancellation of indebtedness equals such aggregate\nRepurchase Price. Upon delivery of such notice and the payment of the aggregate\nRepurchase Price in any of the ways described above, the Company shall become\nthe legal and beneficial owner of the Shares being repurchased and all rights\nand interests therein or relating thereto, and the Company shall have the right\nto retain and transfer to its own name the number of Shares being repurchased by\nthe Company. For purposes of this Agreement, 'Continuous Status' means the\nabsence of any interruption of Founder's employment by or service as a member of\nthe Board of Directors of the Company; provided that (i) for purposes of this\nAgreement, Founder's 'employment' shall be deemed to include part-time\nemployment status and (ii) any transition from Board of Directors member to\nemployee or from employee to Board of Directors member shall not be considered\nan interruption of 'Continuous Status'.\n\n          (b)    Whenever the Company shall have the right to repurchase Shares\nhereunder, the Company may designate and assign one or more employees, officers,\ndirectors or stockholders of the Company or other persons or organizations to\nexercise all or a part of the Company's purchase rights under this Agreement and\npurchase all or a part of such Shares. If the Fair Market Value of the Shares to\nbe repurchased on the date of such designation or assignment (the 'Repurchase\nFMV') exceeds the aggregate Repurchase Price of such Shares, then each such\ndesignee or assignee shall pay the Company cash equal to the difference between\nthe Repurchase FMV and the aggregate Repurchase Price of such Shares.\n\n     4.   Release of Shares From Repurchase Option.\n          ----------------------------------------\n\n          (a)    (i)   Twenty-five percent (25%) of the Shares shall be released\nfrom the Company's repurchase option exactly one year after the date of\nexecution of this Agreement and one forty-eighth (1\/48) of the Shares shall be\nreleased each month thereafter, provided in each case that the Founder's\nContinuous Status with the Company has not terminated prior to the date of any\nsuch release.\n\n                 (ii)  With respect to the vesting set forth in Section 4(a)(i)\nabove, in the case of an Acquisition of the Company, as defined herein, then one\nhundred percent (100%) of the balance of the Shares which have not yet been\nreleased from the Company's repurchase option as set forth above shall be\nreleased from the Company's repurchase option as of the date of closing of the\nAcquisition. For purposes of this Agreement, 'Acquisition' shall mean the\nCompany's acquisition by an unaffiliated third party by way of merger after\nwhich the stockholders of the Company own less than fifty percent (50%) of the\noutstanding voting securities of the surviving corporation, or by way of sale by\nthe Company of all or substantially all of its assets or stock.\n\n                                      -2-\n\n \n          (b)    Any of the Shares which have not yet been released from the\nCompany's repurchase option are referred to herein as 'Unreleased Shares.'\n\n          (c)    The Shares which have been released from the Company's\nrepurchase option shall be delivered to the Founder at the Founder's request\n(see Section 6 hereof).\n\n     5.   Restriction on Transfer; Right of First Refusal.\n          -----------------------------------------------\n\n          (a)    Before any Shares registered in the name of the Founder may be\nsold or transferred (including transfer by operation of law), such Shares shall\nfirst be offered to the Company.\n\n                 (i)     The Founder shall deliver a notice ('Notice') to the\nCompany stating (A) Founder's bona fide intention to sell or transfer such\nShares, (B) the number of such Shares to be sold or transferred, (C) the price\nfor which the Founder proposes to sell or transfer such shares, and (D) the name\nof the proposed purchaser or transferee.\n\n                 (ii)    Within thirty (30) days after receipt of the Notice,\nthe Company or its assignee may elect to purchase all (but not less than all)\nShares to which the Notice refers, at the price per share specified in the\nNotice. Full payment for all the Shares to which the Notice refers shall be made\nby the Company or its assignee to the Founder by cash.\n\n                 (iii)   If the Shares to which the Notice refers are not\nelected to be purchased, as provided in subparagraph 5(a)(ii), the Founder may\nsell the Shares to any person named in the Notice at the price specified in the\nNotice or at a higher price, provided that such sale or transfer is consummated\nwithin 60 days of the date of said Notice to the Company, and provided, further,\nthat any such sale is in accordance with all the terms and conditions hereof.\nAny sale or transfer after such 60 day period or on terms more favorable to the\nproposed purchaser or transferee then described in the Notice shall be subject\nagain to this subparagraph 5(a).\n\n                 (iv)    The provisions of this subparagraph 5(a) shall\nterminate on the earlier of (A) the effective date of a registration statement\nfiled by the Company under the Securities Act of 1933, as amended (the\n'Securities Act'), with respect to an underwritten public offering of Common\nStock of the Company or (B) the closing date of a sale of assets or merger of\nthe Company pursuant to which stockholders of this Company receive securities of\na buyer whose shares are publicly traded. The provisions of this subparagraph\n5(a) shall not apply to a transfer of any Shares by the Founder, either during\nhis lifetime or on death by will or intestacy to his ancestors, descendants or\nspouse; provided, in each such case a transferee shall receive and hold such\nShares subject to the provisions of this Agreement and there shall be no further\ntransfer of such Shares except in accordance herewith.\n\n          (b)    Founder agrees in connection with the Company's initial public\noffering of its equity securities pursuant to a registration statement filed\nunder the Securities Act, not to sell, \n\n                                      -3-\n\n \nmake any short sale of, loan, grant any option for the purchase of or otherwise\ndispose of any Shares without the prior written consent of the Company or its\nunderwriters, for such period of time (not to exceed one hundred eighty (180)\ndays) from the effective date of such registration as may be requested by the\nCompany or such underwriters; provided, that the officers and directors of the\nCompany who own stock of the Company also agree to such restrictions.\n\n          (c)    The Company shall not be required (A) to transfer on its books\nany Shares which shall have been sold or transferred in violation of any of the\nprovisions set forth in this Agreement, or (B) to treat as owner of such Shares\nor to accord the right to vote as such owner or to pay dividends to any\ntransferee to whom such Shares shall have been so transferred.\n\n          6.     Escrow of Shares.\n                 ----------------\n\n          (a)    All of the Shares issued under this Agreement shall be held by\nthe Secretary of the Company or his designee (the 'Escrow Holder'), along with a\nstock assignment executed by the Founder in blank, until the expiration in full\nof the Company's option to repurchase such Shares as set forth above.\n\n          (b)    The Escrow Holder is hereby directed to permit transfer of the\nShares only in accordance with this Agreement or instructions signed by both\nparties. In the event further instructions are desired by the Escrow Holder, he\nshall be entitled to rely upon directions executed by a majority of the\nauthorized number of the Company's Board of Directors. The Escrow Holder shall\nhave no liability for any act or omission hereunder while acting in good faith\nin the exercise of his own judgment.\n\n          (c)    If the Company or any assignee exercises its repurchase option\nhereunder, the Escrow Holder, upon receipt of written notice of such option\nexercise from the proposed transferee, shall take all steps necessary to\naccomplish such transfer.\n\n          (d)    When the repurchase option has been exercised or expires\nunexercised or a portion of the Shares has been released from such repurchase\noption, upon Founder's request the Escrow Holder shall promptly cause a new\ncertificate to be issued for such released shares and shall deliver such\ncertificates to the Founder.\n\n          (e)    Subject to the terms hereof, the Founder shall have all the\nrights of a stockholder with respect to such Shares while they are held in\nescrow, including without limitation, the right to vote the Shares and receive\nany cash dividends declared thereon. If, from time to time during the term of\nthe Company's repurchase option, there is (i) any stock dividend, stock split or\nother change in the Shares, or (ii) any merger or sale of all or substantially\nall of the assets or other acquisition of the Company, any and all new,\nsubstituted or additional securities to which the Founder is entitled by reason\nof his ownership of the Shares shall be immediately subject to this escrow,\ndeposited with the Escrow Holder and included thereafter as 'Shares' for\npurposes of this Agreement and the Company's repurchase option.\n\n                                      -4-\n\n \n     7.    Legends.  All certificates representing any of the Shares subject to\n           -------                                                             \nthe provisions of this Agreement shall have endorsed thereon legends\nsubstantially in the following form:\n\n           (a)   'THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES\nACT OF 1933, AS AMENDED (THE 'ACT'). THEY MAY NOT BE SOLD, OFFERED FOR SALE,\nPLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS\nTO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE\nCOMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.'\n\n           (b)   'THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO\nCERTAIN RESTRICTIONS ON TRANSFER, A REPURCHASE OPTION AND A RIGHT OF FIRST\nREFUSAL HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN THE FOUNDERS STOCK\nPURCHASE AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A\nCOPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH\nTRANSFER RESTRICTIONS AND REPURCHASE OPTION ARE BINDING ON TRANSFEREES OF THESE\nSHARES.'\n\n     8.    Founder's Representations. In connection with the purchase of the\n           -------------------------                                        \nShares and the assignment and transfer of the Business Plan to the Company,\nFounder hereby represents and warrants to the Company:\n\n                 (a)     Founder has not previously assigned, transferred,\nconveyed or otherwise encumbered any of his rights, title or interests in the\nBusiness Plan. Founder and Mr. Randolph are the exclusive owners of the Business\nPlan, and no other persons or entities has or shall have any claim of ownership\nwith respect to any part of the Business Plan. To the best of the Founder's\nknowledge, no persons are infringing any of the intellectual property rights of\nthe Founder in connection with the Business Plan.\n\n                 (b)     Founder represents and warrants that Founder is\nacquiring or will be acquiring the Shares for investment for Founder's own\naccount, not as a nominee or agent and not with the view to, or for resale in\nconnection with, any distribution thereof. Founder understands that the Shares\nhave not been, and will not be, registered under the Securities Act by reason of\na specific exemption from the registration provisions of the Securities Act that\ndepends upon, among other things, the bona fide nature of the investment intent\nand the accuracy of such Founder's representations as expressed herein. Founder\nhas not been formed for the specific purpose of acquiring the Shares. Founder\nfurther understands that the Company shall have no obligation to register the\nShares under the Act on behalf of Founder.\n\n                 (c)     Founder is aware of the provisions of Rule 701 and Rule\n144, each promulgated under the Securities Act, which in substance, permit\nlimited public resale of 'restricted securities' acquired, directly or\nindirectly from the issuer thereof (or from an affiliate of such issuer), in a\nnon-public offering subject to the satisfaction of certain of the conditions\nspecified\n\n                                      -5-\n\n \nby Rule 144, including, among other things: (1) the Sale being made through a\nbroker in an unsolicited 'broker's transaction' or in transactions directly with\na market maker (as said term is defined under the Securities Exchange Act of\n1934); and, in the case of an affiliate, (2) the availability of certain public\ninformation about the Company, and the amount of securities being sold during\nany three month period not exceeding the limitations specified in Rule 144(e),\nif applicable.\n\n           In the event that the Company does not qualify under Rule 701, then\nthe securities may be resold in certain limited circumstances subject to the\nprovisions of Rule 144, which requires among other things: (1) the resale\noccurring not less than two years after the party has purchased, and made full\npayment for, within the meaning of Rule 144, the securities to be sold; and, in\nthe case of an affiliate, or of a non-affiliate who has held the securities less\nthan three years, (2) the availability of certain public information about the\nCompany, (3) the sale being made through a broker in an unsolicited 'broker's\ntransaction' or in transactions directly with a market maker (as such term is\ndefined under the Securities Exchange Act of 1934, and (4) the amount of\nsecurities being sold during any three month period not exceeding the specified\nlimitations stated therein, if applicable.\n\n           (d)   Founder further understands that at the time Founder wishes to\nsell the securities there may be no public market upon which to make such a\nsale, and that, even if such a public market then exists the Company may not be\nsatisfying the current public information requirements of Rule 144, and that, in\nsuch event, Founder would be precluded from selling the securities under Rule\n144 even if the two-year minimum holding period had been satisfied.\n\n           (e)   Founder further understands that in the event all of the\napplicable requirements of Rule 701 and Rule 144 are not satisfied, registration\nunder the Securities Act, compliance with Regulation A or some other\nregistration exemption will be required; and that, notwithstanding the fact that\nRule 701 and Rule 144 are not exclusive, the staff of the Securities and\nExchange Commission has expressed its opinion that persons proposing to sell\nprivate placement securities other than in a registered offering and otherwise\nthan pursuant to Rule 701 and Rule 144 will have a substantial burden of proof\nestablishing that an exemption from registration is available for such offers or\nsales and that such persons and their respective brokers who participate in such\ntransactions do so at their own risk.\n\n     9.    Tax Consequences. The Founder has reviewed with the Founder's own tax\n           ----------------                                                     \nadvisors the federal, state, local and foreign tax consequences of this\ninvestment and the transactions contemplated by this Agreement (including any\ntax consequences that may result under recently enacted tax legislation). The\nFounder is relying solely on such advisors and not on any statements or\nrepresentations of the Company or any of its agents. The Founder understands\nthat the Founder (and not the Company) shall be responsible for the Founder's\nown tax liability that may arise as a result of this investment or the\ntransactions contemplated by this Agreement.\n\n                                      -6-\n\n \n     10.   Miscellaneous.\n           -------------\n\n           (a)   The parties agree to execute such further instruments and to\ntake such further actions as may reasonably be necessary to carryout the intern\nof this Agreement.\n\n           (b)   Any notice required or permitted hereunder shall be given in\nwriting and shall be deemed effectively given upon personal delivery or upon\ndeposit in the United States Post Office, by regular or certified mail with\npostage and fees prepaid, addressed to Founder at his address shown on the\nCompany's employment records and to the Company at the address of its principal\ncorporate offices (attention: President) or at such other address as such party\nmay designate by ten days' advance written notice to the other party hereto.\n\n           (c)   The Company may assign its rights and delegate its duties under\nthis Agreement. This Agreement shall inure to the benefit of the successors and\nassigns of the Company and, subject to the restrictions on transfer herein set\nforth, be binding upon Founder, his heirs, executors, administrators, successors\nand assigns.\n\n           (d)   FOUNDER ACKNOWLEDGES AND AGREES THAT THE RELEASE OF SHARES FROM\nTHE REPURCHASE OPTION OF THE COMPANY PURSUANT TO SECTION 4 HEREOF IS EARNED ONLY\nBY CONTINUING SERVICE AS AN EMPLOYEE OR CONSULTANT AT THE WILL OF THE COMPANY\n(NOT THROUGH THE ACT OF BEING HIRED OR PURCHASING SHARES HEREUNDER). FOUNDER\nFURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS\nCONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT\nCONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN EMPLOYEE\nOR CONSULTANT FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT\nINTERFERE WITH FOUNDER'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE FOUNDER'S\nEMPLOYMENT OR CONSULTING RELATIONSHIP AT ANY TIME, WITH OR WITHOUT CAUSE.\n\n\n\n           (e)   This Agreement shall be governed by, and construed and enforced\nin accordance with, the internal laws of the State of California.\n\n                                      -7-\n\n \nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the\nday and year first above written.\n\n\n\nFOUNDER                               COMPANY\n\nReed Hastings\n                                      Kibble, Inc.\n                                      a Delaware corporation\n\n\/s\/ Reed Hastings                     \/s\/ Marc B. Randolph\n-----------------------------         -----------------------------\n                                      By:\nAddress:                              President\n\n\n\n\n\n\n          The Founder has reviewed the provisions of this Agreement, has had an\nopportunity to obtain the advice of the Founder's own tax and legal advisors\nprior to executing this Agreement and fully understands and agrees to the\nprovisions hereof. The Founder understands that the law firm of Wilson, Sonsini,\nGoodrich &amp; Rosati is acting as counsel to the Company in connection with the\ntransactions contemplated by the Agreement, and is not acting as counsel for the\nFounder.\n\n\n\n                                      FOUNDER\n\n\n                                      -----------------------------\n\n                                      -8-\n\n \n                                   EXHIBIT A\n                                   ---------\n\n                           DESCRIPTION BUSINESS PLAN\n\n                                      -9-\n\n \n                                   EXHIBIT A\n                                   ---------\n                                        \n     The Business Plan contemplates the formation of a company for the conduct\nof renting and selling digital video discs over the Internet (the 'Business').\nFor purposes hereof the property transferred by Founder pursuant to the\nAgreement shall include all technology (including works in process), technical\nand strategic know-how and other assets related to or useful for the conduct of\nthe Business, including without limitation, all of the following related to such\ntechnology, technical and strategic know-how and other assets: flow charts;\nmodels; software; prototypes; tests; specifications; descriptions; layouts;\nschematics; blueprints; engineering and design drawings; diagrams and other\ndocumentation depicting or specifying the designs or components of such\ntechnology, technical and strategic know-how and other assets; business,\naccounting and financial records and analysis; competitive analysis and\nevaluation and related data; logs; books; records; files; materials and\ncorrespondence.\n\n \n                               CONSENT OF SPOUSE\n\n       I, Patty Quillin spouse of Reed Hastings read and approve the foregoing\nAgreement. In consideration of granting of the right to my spouse to purchase\nshares of Common Stock of Kibble, Inc. as set forth in the Agreement, I hereby\nappoint my spouse as my attorney-in-fact in respect to the exercise of any\nrights under the Agreement and agree to be bound by the provisions of the\nAgreement insofar as I may have any rights in said Agreement or any shares\nissued pursuant thereto under the community property laws of the State of\nCalifornia or similar laws relating to marital property in effect in the state\nof our residence as of the date of the signing of the foregoing Agreement.\n\nDated: October 31, 1997\n                                    \/s\/ Patty Quillin\n                                    -----------------\n                                    (Signature of Spouse)\n\n                                     -10-\n\n \n                      ASSIGNMENT SEPARATE FROM CERTIFICATE\n\n          FOR VALUE RECEIVED I,___________, hereby sell, assign and transfer\nunto _____________________ shares of the Common Stock of Kibble, Inc. standing\nin my name on the books of said corporation represented by Certificate No.___\nherewith and do hereby irrevocably constitute and appoint-the Secretary of\nKibble, Inc. or his designee, to transfer the said stock on the books of the\nwithin named corporation with full power of substitution in the premises.\n\n         This Stock Assignment may be used only in accordance with the Stock\nPurchase agreement between the corporation and the undersigned dated , 199_.\n \nDated:________, 199_.\n \n\n                              Signature:  \/s\/ Reed Hastings\n                                          -----------------\n\n\n                              Name :    Reed Hastings\n                                        -------------\n\n\n                                     -11-\n\n \n                                 NETFLIX, INC.\n\n       AMENDMENT NO. 1 TO FOUNDER'S RESTRICTED STOCK PURCHASE AGREEMENT\n\n     This Amendment No. 1 (the 'Amendment') to the Founder's Restricted Stock\nPurchase Agreement (the 'Agreement') with Reed Hastings (the 'Founder') is made\nthis 12th day of June 1998 by and between the Founder and Netflix, Inc., a\nDelaware corporation (the 'Company').\n\n                                   RECITALS\n\n     WHEREAS, the Company and the Founder have previously entered into the \nAgreement pursuant to which the Company issued to Founder 500,000 shares of \nCommon Stock of the Company (the 'Shares') to induce Founder to contribute \ncertain property to the Company; and \n\n     WHEREAS, the Company and the Founder desire to amend the Agreement to \nprovide for certain limitations on the acceleration of vesting of the Shares in \nthe event of a change in control.\n\n     NOW, THEREFORE, the Founder and the Company agree that the Agreement shall\nbe amended as follows:\n\n     1.   Section 4 titled 'Release of Shares From Repurchase Option' is hereby \namended in its entirety to rear as follows\n\n     '4. Release of Shares From Repurchase Option.\n          ----------------------------------------\n\n          (a)  (i)    Twenty-five percent (25%) of the Shares shall be released \nfrom the Company's repurchase option exactly one year after the date of \nexecution of this Agreement and one forty-eighth (1\/48) of the Shares shall be \nreleased each month thereafter, provided in each case that the Founder's \nContinuous Status with the Company has not terminated prior to the date of any \nsuch release.\n\n               (ii)   With respect to the vesting set forth in Section 4(a)(i) \nabove, in the case of an Acquisition of the Company (as defined below), then the\nbalance of the Shares which have not yet been released from the Company's \nrepurchase option as set forth above shall be released from the Company's \nrepurchase option as follows:\n\n                         (A) Fifty percent (50%) of the Unreleased Shares (as \ndefined below) shall be released from the Company's repurchase option as of the \ndate of closing of the Acquisition.\n\n                         (B) Upon consummation of the Acquisition, the remainder\nof the Unreleased Shares shall continue to vest in accordance with the terms of\nthis Agreement;\n\n \nprovided, however, that if Founder's employment with the Company or the \n--------  -------\nsuccessor corporation, as applicable, is terminated by the successor corporation\nas a result of an Involuntary Termination (as defined below) other than for \nCause (as defined below) within twelve months following an Acquisition, the \nremainder of all Unreleased Shares shall be released from the Company's \nrepurchase option as of the date of such Involuntary Termination.\n\n     For purposes of this Section 4, any of the following events shall \nconstitute an 'Involuntary Termination': (i) a significant reduction of the \nFounder's duties, authority or responsibilities, relative to the Founder's \nduties, authority or responsibilities as in effect immediately prior to the \nAcquisition, or the assignment to Founder of such reduced duties, authority or \nresponsibilities; (ii) a substantial reduction of the facilities and perquisites\n(including office space and location) available to the Founder immediately prior\nto the Acquisition; (iii) a reduction in the base salary of the Founder as in \neffect immediately prior to the Acquisition; (iv) a material reduction in the \nkind or level of employee benefits, including bonuses, to which the Founder was \nentitled immediately prior to the Acquisition with the result that the Founder's\noverall benefits package is significantly reduced; (v) the relocation of the \nFounder to a facility or a location more than fifty (50) miles from the \nFounder's then present location, without the Founder's express written consent; \n(vi) any purported termination of the Founder by the successor corporation \nwhich is not effected for disability or for Cause, or any purported termination \nfor which the grounds relied upon are not valid; or (vii) any act or set of \nfacts or circumstances which would, under California law or statute constitute a\nconstructive termination of the Founder.\n\n     For purposes of this Section 4, 'Cause' shall mean (i) any act of personal \ndishonesty taken by the Founder in connection with his responsibilities as an \nemployee and intended to result in substantial personal enrichment of the \nFounder, (ii) the conviction of a felony, (iii) a willful act by the Founder \nwhich constitutes gross misconduct and which is injurious to the successor \ncorporation, and (iv) following delivery to the Founder of a written demand for \nperformance from the successor corporation which describes the basis for the \nsuccessor corporation's belief that the Founder has not substantially performed\nhis duties, continued violations by the Founder of the Founder's obligations to \nthe successor corporation which are demonstrably willful and deliberate on the \nFounder's part.\n\n     For purposes of this Agreement, 'Acquisition' shall mean the Company's \nacquisition by an unaffiliated third party by way of merger after which the \nstockholders of the Company own less than fifty percent (50%) of the outstanding\nvoting securities of the surviving corporation, or by way of sale by the Company\nof all or substantially all of its assets or stock.\n\n     (b) Any of the Shares which have not yet been released from the Company's \nrepurchase option (and any shares of capital stock or other property \nexchangeable therefor pursuant to an Acquisition) are referred to herein as \n'Unreleased Shares.'\n\n     (c) The Shares which have been released from the Company's repurchase \noption shall be delivered to the Founder at the Founder's request (see Section \n6 hereof).\n\n \n     IN WITNESS WHEREOF, this Amendment has been entered into as of the date\nfirst set forth above.\n\n\nNETFLIX, INC.                                FOUNDER\n\n\nBy: \/s\/ Marc Randolph                        \/s\/ Reed Hastings\n    ---------------------------------------  ----------------------------\n\nName: Marc Randolph\n      -------------------------------------\n\nTitle: President &amp; Chief Executive Officer\n       ------------------------------------\n\n                                       3\n\n\n\n\n TYPE:  EX-10.10\n SEQUENCE:  13\n DESCRIPTION:  FOUNDER'S RESTRICTED STOCK PURCHASE AGREEMENT\n\n\n :  PAGE&gt;\n \n                                                                   Exhibit 10.10\n\n                                 KIBBLE, INC.\n\n                 FOUNDER'S RESTRICTED STOCK PURCHASE AGREEMENT\n\n\n     This Founders Stock Purchase Agreement (the 'Agreement') is made as of the\n___ day of October 1997 by and between Kibble Inc., a Delaware corporation (the\n'Company'), and Marc B. Randolph (the 'Founder').\n\n     WHEREAS pursuant to the formation of the Company and in order to induce\nFounder to contribute certain property to the Company, the Company will issue to\nFounder 2,700,000 shares of Common Stock of the Company (the 'Common Stock').\n\n     THEREFORE, in consideration of the mutual covenants and representations\nherein set forth, the parties agree as follows:\n\n     1.   Purchase. Subject to the terms and conditions of this Agreement, the\n          --------                                                            \nCompany hereby agrees to issue to Founder and Founder agrees to acquire from the\nCompany on the Closing Date (as defined below), 2,700,000 shares of the Common\nStock (the 'Shares') at a price of $0.05 per share, for an aggregate\nconsideration of $135,000.00 which consideration will be paid by Founder in the\nform of the assignment and transfer to the Company (the 'Exchange') of all of\nFounder's right, title and interest in and to all trade secrets, discoveries,\nconcepts, ideas, whether patentable or not, and all improvements thereto,\npresently owned by Founder relating to the Founder's business plan (the\n'Business Plan'), a description of which is attached hereto as Exhibit A.\nFounder's interest in the Business Plan is valued at $135,000.00. It is hereby\nacknowledged that the Business Plan is co-owned by Founder and Reed Hastings,\nand that Mr. Hastings' interest in the Business Plan will be transferred\npursuant to a separate founders' stock purchase agreement. The parties intend\nthat the Exchange shall constitute a transfer in which no gain or loss is\nrecognized in accordance with the provisions of Section 351 of the Internal\nRevenue Code of 1986, as amended.\n\n     2.   Closing.  The purchase and sale of the Shares shall occur at a Closing\n          -------                                                               \nto be held contemporaneously with the execution hereof (the 'Closing Date'). At\nthe Closing, Founder is hereby assigning, transferring and delivering to the\nCompany the consideration to be paid for the Shares, and the Company is issuing\nthe Shares registered in the name of the Founder.\n\n     3.   Repurchase Option.\n          ------------------\n\n          (a)  In the event of any voluntary or involuntary termination of the\nFounder's Continuous Status (as such term is defined below) as an employee or\nboard member of the Company for any or no reason (including death or disability)\nbefore all of the Shares are released from the Company's repurchase option\npursuant to Section 4 hereof, the Company shall, upon the date of such\ntermination (as reasonably fixed and determined by the Company) have an\nirrevocable, exclusive option for a period of sixty (60) days from such date to\nrepurchase up to that number of shares which constitute the Unreleased Shares\n(as such term defined in Section 4 hereof) at the original purchase price per\nshare (the 'Repurchase Price'). Said option shall be exercised by the\n\n \nCompany by delivering written notice to the Founder or the Founder's executor\n(with a copy to the Escrow Holder (as such term is defined in Section 6 hereof))\nAND, at the Company's option, (i) by delivering to the Founder or the Founder's\nexecutor a check in the amount of the aggregate Repurchase Price, or (ii) by the\nCompany canceling an amount of the Founder's indebtedness to the Company equal\nto the aggregate Repurchase Price, or (iii) by a combination of (i) and (ii) so\nthat the combined payment and cancellation of indebtedness equals such aggregate\nRepurchase Price. Upon delivery of such notice and the payment of the aggregate\nRepurchase Price in any of the ways described above, the Company shall become\nthe legal and beneficial owner of the Shares being repurchased and all rights\nand interests therein or relating thereto, and the Company shall have the right\nto retain and transfer to its own name the number of Shares being repurchased by\nthe Company. For purposes of this Agreement, 'Continuous Status' means the\nabsence of any interruption of Founder's employment by or service as a member of\nthe Board of Directors of the Company; provided that (i) for purposes of this\nAgreement, Founder's 'employment' shall be deemed to include part-time\nemployment status and (ii) any transition from Board of Directors member to\nemployee or from employee to Board of Directors member shall not be considered\nan interruption of 'Continuous Status'.\n\n          (b)  Whenever the Company shall have the right to repurchase Shares\nhereunder, the Company may designate and assign one or more employees, officers,\ndirectors or stockholders of the Company or other persons or organizations to\nexercise all or a part of the Company's purchase rights under this Agreement and\npurchase all or a part of such Shares. If the Fair Market Value of the Shares to\nbe repurchased on the date of such designation or assignment (the 'Repurchase\nFMV') exceeds the aggregate Repurchase Price of such Shares, then each such\ndesignee or assignee shall pay the Company cash equal to the difference between\nthe Repurchase FMV and the aggregate Repurchase Price of such Shares.\n\n     4.   Release of Shares From Repurchase Option.\n          -----------------------------------------\n\n          (a)   (i)   Twenty-five percent (25%) of the Shares shall be released\nfrom the Company's repurchase option exactly one year after the date of\nexecution of this Agreement and one forty-eighth (1\/48) of the Shares shall be\nreleased each month thereafter, provided in each case that the Founder's\nContinuous Status with the Company has not terminated prior to the date of any\nsuch release.\n\n          (ii)  With respect to the vesting set forth in Section 4(a)(i) above,\nin the case of an Acquisition of the Company, as defined herein, then one\nhundred percent (100%) of the balance of the Shares which have not yet been\nreleased from the Company's repurchase option as set forth above shall be\nreleased from the Company's repurchase option as of the date of closing of the\nAcquisition. For purposes of this Agreement, 'Acquisition' shall mean the\nCompany's acquisition by an unaffiliated third party by way of merger after\nwhich the stockholders of the Company own less than fifty percent (50%) of the\noutstanding voting securities of the surviving corporation, or by way of sale by\nthe Company of all or substantially all of its assets or stock.\n\n                                      -2-\n\n \n          (b)  Any of the Shares which have not yet been released from the\nCompany's repurchase option are referred to herein as 'Unreleased Shares.'\n\n          (c)  The Shares which have been released from the Company's repurchase\noption shall be delivered to the Founder at the Founder's request (see Section 6\nhereof).\n\n     5.   Restriction on Transfer; Right of First Refusal.\n          ------------------------------------------------\n\n          (a)  Before any Shares registered in the name of the Founder may be\nsold or transferred (including transfer by operation of law), such Shares shall\nfirst be offered to the Company.\n\n               (i)   The Founder shall deliver a notice ('Notice') to the\nCompany stating (A) Founder's bona fide intention to sell or transfer such\nShares, (B) the number of such Shares to be sold or transferred, (C) the price\nfor which the Founder proposes to sell or transfer such shares, and (D) the name\nof the proposed purchaser or transferee.\n\n               (ii)  Within thirty (30) days after receipt of the Notice, the\nCompany or its assignee may elect to purchase all (but not less than all) Shares\nto which the Notice refers, at the price per share specified in the Notice. Full\npayment for all the Shares to which the Notice refers shall be made by the\nCompany or its assignee to the Founder by cash.\n\n               (iii) If the Shares to which the Notice refers are not elected to\nbe purchased, as provided in subparagraph 5(a)(ii), the Founder may sell the\nShares to any person named in the Notice at the price specified in the Notice or\nat a higher price, provided that such sale or transfer is consummated within 60\ndays of the date of said Notice to the Company, and provided, further, that any\nsuch sale is in accordance with all the terms and conditions hereof. Any sale or\ntransfer after such 60 day period or on terms more favorable to the proposed\npurchaser or transferee then described in the Notice shall be subject again to\nthis subparagraph 5(a).\n\n               (iv)  The provisions of this subparagraph 5(a) shall terminate on\nthe earlier of (A) the effective date of a registration statement filed by the\nCompany under the Securities Act of 1933, as amended (the 'Securities Act'),\nwith respect to an underwritten public offering of Common Stock of the Company\nor (B) the closing date of a sale of assets or merger of the Company pursuant to\nwhich stockholders of this Company receive securities of a buyer whose shares\nare publicly traded. The provisions of this subparagraph 5(a) shall not apply to\na transfer of any Shares by the Founder, either during his lifetime or on death\nby will or intestacy to his ancestors, descendants or spouse; provided, in each\nsuch case a transferee shall receive and hold such Shares subject to the\nprovisions of this Agreement and there shall be no further transfer of such\nShares except in accordance herewith.\n\n          (b)  Founder agrees in connection with the Company's initial public\noffering of its equity securities pursuant to a registration statement filed\nunder the Securities Act, not to sell,\n\n                                      -3-\n\n \nmake any short sale of, loan, grant any option for the purchase of or otherwise\ndispose of any Shares without the prior written consent of the Company or its\nunderwriters, for such period of time (not to exceed one hundred eighty (180)\ndays) from the effective date of such registration as may be requested by the\nCompany or such underwriters; provided, that the officers and directors of the\nCompany who own stock of the Company also agree to such restrictions.\n\n          (c)  The Company shall not be required (A) to transfer on its books\nany Shares which shall have been sold or transferred in violation of any of the\nprovisions set forth in this Agreement, or (B) to treat as owner of such Shares\nor to accord the right to vote as such owner or to pay dividends to any\ntransferee to whom such Shares shall have been so transferred.\n\n          6.   Escrow of Shares.\n               -----------------\n\n          (a)  All of the Shares issued under this Agreement shall be held by\nthe Secretary of the Company or his designee (the 'Escrow Holder'), along with a\nstock assignment executed by the Founder in blank, until the expiration in full\nof the Company's option to repurchase such Shares as set forth above.\n\n          (b)  The Escrow Holder is hereby directed to permit transfer of the\nShares only in accordance with this Agreement or instructions signed by both\nparties. In the event further instructions are desired by the Escrow Holder, he\nshall be entitled to rely upon directions executed by a majority of the\nauthorized number of the Company's Board of Directors. The Escrow Holder shall\nhave no liability for any act or omission hereunder while acting in good faith\nin the exercise of his own judgment.\n\n          (c)  If the Company or any assignee exercises its repurchase option\nhereunder, the Escrow Holder, upon receipt of written notice of such option\nexercise from the proposed transferee, shall take all steps necessary to\naccomplish such transfer.\n\n          (d)  When the repurchase option has been exercised or expires\nunexercised or a portion of the Shares has been released from such repurchase\noption, upon Founder's request the Escrow Holder shall promptly cause a new\ncertificate to be issued for such released shares and shall deliver such\ncertificates to the Founder.\n\n          (e)  Subject to the terms hereof, the Founder shall have all the\nrights of a stockholder with respect to such Shares while they are held in\nescrow, including without limitation, the right to vote the Shares and receive\nany cash dividends declared thereon. If, from time to time during the term of\nthe Company's repurchase option, there is (i) any stock dividend, stock split or\nother change in the Shares, or (ii) any merger or sale of all or substantially\nall of the assets or other acquisition of the Company, any and all new,\nsubstituted or additional securities to which the Founder is entitled by reason\nof his ownership of the Shares shall be immediately subject to this escrow,\ndeposited with the Escrow Holder and included thereafter as 'Shares' for\npurposes of this Agreement and the Company's repurchase option.\n\n                                      -4-\n\n \n     7.   Legends.  All certificates representing any of the Shares subject to\n          -------                                                             \nthe provisions of this Agreement shall have endorsed thereon legends\nsubstantially in the following form:\n\n          (a)  'THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES\nACT OF 1933, AS AMENDED (THE 'ACT'). THEY MAY NOT BE SOLD, OFFERED FOR SALE,\nPLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS\nTO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE\nCOMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.'\n\n          (b)  'THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO\nCERTAIN RESTRICTIONS ON TRANSFER, A REPURCHASE OPTION AND A RIGHT OF FIRST\nREFUSAL HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN THE FOUNDERS STOCK\nPURCHASE AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A\nCOPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH\nTRANSFER RESTRICTIONS AND REPURCHASE OPTION ARE BINDING ON TRANSFEREES OF THESE\nSHARES.'\n\n     8.   Founder's Representations. In connection with the purchase of the\n          -------------------------                                        \nShares and the assignment and transfer of the Business Plan to the Company,\nFounder hereby represents and warrants to the Company:\n\n          (a)  Founder has not previously assigned, transferred, conveyed or\notherwise encumbered any of his rights, title or interests in the Business Plan.\nFounder and Mr. Hastings are the exclusive owners of the Business Plan, and no\nother persons or entities has or shall have any claim of ownership with respect\nto any part of the Business Plan. To the best of the Founder's knowledge, no\npersons are infringing any of the intellectual property rights of the Founder in\nconnection with the Business Plan.\n\n          (b)  Founder represents and warrants that Founder is acquiring or will\nbe acquiring the Shares for investment for Founder's own account, not as a\nnominee or agent and not with the view to, or for resale in connection with, any\ndistribution thereof. Founder understands that the Shares have not been, and\nwill not be, registered under the Securities Act by reason of a specific\nexemption from the registration provisions of the Securities Act that depends\nupon, among other things, the bona fide nature of the investment intent and the\naccuracy of such Founder's representations as expressed herein. Founder has not\nbeen formed for the specific purpose of acquiring the Shares. Founder further\nunderstands that the Company shall have no obligation to register the Shares\nunder the Act on behalf of Founder.\n\n          (c)  Founder is aware of the provisions of Rule 701 and Rule 144, each\npromulgated under the Securities Act, which in substance, permit limited public\nresale of 'restricted securities' acquired, directly or indirectly from the\nissuer thereof (or from an affiliate of such issuer), in a non-public offering\nsubject to the satisfaction of certain of the conditions specified\n\n                                      -5-\n\n \nby Rule 144, including, among other things: (1) the sale being made through a\nbroker in an unsolicited 'broker's transaction' or in transactions directly with\na market maker (as said term is defined under the Securities Exchange Act of\n1934); and, in the case of an affiliate, (2) the availability of certain public\ninformation about the Company, and the amount of securities being sold during\nany three month period not exceeding the limitations specified in Rule 144(e),\nif applicable.\n\n          In the event that the Company does not qualify under Rule 701, then\nthe securities may be resold in certain limited circumstances subject to the\nprovisions of Rule 144, which requires among other things: (1) the resale\noccurring not less than two years after the party has purchased, and made full\npayment for, within the meaning of Rule 144, the securities to be sold; and, in\nthe case of an affiliate, or of a non-affiliate who has held the securities less\nthan three years, (2) the availability of certain public information about the\nCompany, (3) the sale being made through a broker in an unsolicited 'broker's\ntransaction' or in transactions directly with a market maker (as such term is\ndefined under the Securities Exchange Act of 1934, and (4) the amount of\nsecurities being sold during any three month period not exceeding the specified\nlimitations stated therein, if applicable.\n\n          (d)  Founder further understands that at the time Founder wishes to\nsell the securities there may be no public market upon which to make such a\nsale, and that, even if such a public market then exists the Company may not be\nsatisfying the current public information requirements of Rule 144, and that, in\nsuch event, Founder would be precluded from selling the securities under Rule\n144 even if the two-year minimum holding period had been satisfied.\n\n          (e)  Founder further understands that in the event all of the\napplicable requirements of Rule 701 and Rule 144 are not satisfied, registration\nunder the Securities Act, compliance with Regulation A or some other\nregistration exemption will be required; and that, notwithstanding the fact that\nRule 701 and Rule 144 are not exclusive, the staff of the Securities and\nExchange Commission has expressed its opinion that persons proposing to sell\nprivate placement securities other than in a registered offering and otherwise\nthan pursuant to Rule 701 and Rule 144 will have a substantial burden of proof\nestablishing that an exemption from registration is available for such offers or\nsales and that such persons and their respective brokers who participate in such\ntransactions do so at their own risk.\n\n     9.   Tax Consequences. The Founder has reviewed with the Founder's own tax\n          ----------------                                                     \nadvisors the federal, state, local and foreign tax consequences of this\ninvestment and the transactions contemplated by this Agreement (including any\ntax consequences that may result under recently enacted tax legislation). The\nFounder is relying solely on such advisors and not on any statements or\nrepresentations of the Company or any of its agents. The Founder understands\nthat the Founder (and not the Company) shall be responsible for the Founder's\nown tax liability that may arise as a result of this investment or the\ntransactions contemplated by this Agreement.\n\n                                      -6-\n\n \n     10.  Miscellaneous.\n          --------------\n\n          (a)  The parties agree to execute such further instruments and to take\nsuch further actions as may reasonably be necessary to carry out the intent of\nthis Agreement.\n\n          (b)  Any notice required or permitted hereunder shall be given in\nwriting and shall be deemed effectively given upon personal delivery or upon\ndeposit in the United States Post Office, by regular or certified mail with\npostage and fees prepaid, addressed to Founder at his address shown on the\nCompany's employment records and to the Company at the address of its principal\ncorporate offices (attention: President) or at such other address as such party\nmay designate by ten days' advance written notice to the other party hereto.\n\n          (c)  The Company may assign its rights and delegate its duties under\nthis Agreement. This Agreement shall inure to the benefit of the successors and\nassigns of the Company and, subject to the restrictions on transfer herein set\nforth, be binding upon Founder, his heirs, executors, administrators, successors\nand assigns.\n\n          (d)  FOUNDER ACKNOWLEDGES AND AGREES THAT THE RELEASE OF SHARES FROM\nTHE REPURCHASE OPTION OF THE COMPANY PURSUANT TO SECTION 4 HEREOF IS EARNED ONLY\nBY CONTINUING SERVICE AS AN EMPLOYEE OR CONSULTANT AT THE WILL OF THE COMPANY\n(NOT THROUGH THE ACT OF BEING HIRED OR PURCHASING SHARES HEREUNDER). FOUNDER\nFURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS\nCONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT\nCONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN EMPLOYEE\nOR CONSULTANT FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT\nINTERFERE WITH FOUNDER'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE FOUNDER'S\nEMPLOYMENT OR CONSULTING RELATIONSHIP AT ANY TIME, WITH OR WITHOUT CAUSE.\n\n          (e)  This Agreement shall be governed by, and construed and enforced\nin accordance with, the internal laws of the State of California.\n\n                                      -7-\n\n \nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the\nday and year first above written.\n\nFOUNDER                               COMPANY\n\nMarc B. Randolph                      Kibble, Inc.            \n                                      a Delaware corporation \n                                      \n\n\/s\/ Marc B. Randolph                  \/s\/ Marc B. Randolph\n--------------------                  --------------------------------\n                                      By:\n                                      President\n                        \n\n          The Founder has reviewed the provisions of this Agreement, has had an\nopportunity to obtain the advice of the Founder's own tax and legal advisors\nprior to executing this Agreement and fully understands and agrees to the\nprovisions hereof. The Founder understands that the law firm of Wilson, Sonsini,\nGoodrich &amp; Rosati is acting as counsel to the Company in connection with the\ntransactions contemplated by the Agreement, and is not acting as counsel for the\nFounder.\n\n                                      FOUNDER\n\n\n                                               \/s\/ Marc B. Randolph\n                                               -----------------------\n\n \n\n                                      -8-\n\n \n                                   EXHIBIT A\n                                   ---------\n                                        \n                           DESCRIPTION BUSINESS PLAN\n\n                                      -9-\n\n \n                               CONSENT OF SPOUSE\n\n              I, Lorraine Randolph spouse of Marc Randolph read and approve the\nforegoing Agreement. In consideration of granting of the right to my spouse to\npurchase shares of Common Stock of Kibble, Inc. as set forth in the Agreement, I\nhereby appoint my spouse as my attorney-in-fact in respect to the exercise of\nany rights under the Agreement and agree to be bound by the provisions of the\nAgreement insofar as I may have any rights in said Agreement or any shares\nissued pursuant thereto under the community property laws of the State of\nCalifornia or similar laws relating to marital property in effect in the state\nof our residence as of the date of the signing of the foregoing Agreement.\n\nDated: October 8, 1997\n\n\n                                                        \/s\/ Lorraine K. Randolph\n                                                        ---------------------\n                                                        (Signature of Spouse)\n\n                                      -10-\n\n \n                     ASSIGNMENT SEPARATE FROM CERTIFICATE\n\n              FOR VALUE RECEIVED I, ___________________, hereby sell, assign and\ntransfer unto ________________ shares of the Common Stock of Kibble, Inc.\nstanding in my name on the books of said corporation represented by Certificate\nNo. ___ herewith and do hereby irrevocably constitute and appoint the Secretary\nof Kibble, Inc. or his designee, to transfer the said stock on the books of the\nwithin named corporation with full power of substitution in the premises.\n\n              This Stock Assignment may be used only in accordance with the\nStock Purchase Agreement between the corporation and the undersigned dated\n_____________________, 199_.\n\n\nDated: ___________________________, 199_.\n                                      \n\n\n\n\n\n                                              Signature: \/s\/ Marc B. Randolph\n                                                         ---------------------\n\n                                              Name : Marc B. Randolph\n                                                     ------------------------\n\n                                      -11-\n\n \n                     ASSIGNMENT SEPARATE FROM CERTIFICATE\n\n                  FOR VALUE RECEIVED I, __________________, hereby sell, assign\nand transfer unto ______________________________ shares of the Common Stock of\nKibble, Inc. standing in my name on the books of said corporation represented by\nCertificate No._ herewith and do hereby irrevocably constitute and appoint the\nSecretary of Kibble, Inc. or his designee, to transfer the said stock on the\nbooks of the within named corporation with full power of substitution in the\npremises.\n\n              This Stock Assignment may be used only in accordance with the\nStock Purchase Agreement between the corporation and the undersigned dated \n________________, 199_.\n\nDated: ___________________________, 199_.\n\n\n\n\n\n                                                Signature: \/s\/ Reed Hastings\n                                                          ------------------- \n\n                                                Name: Reed Hastings\n                                                     ----------------------\n\n                                      -12-\n\n \n                                 NETFLIX, INC.\n\n       AMENDMENT NO. 1 TO FOUNDER'S RESTRICTED STOCK PURCHASE AGREEMENT\n\n\n     This Amendment No. 1 (the 'Amendment') to the Founder's Restricted Stock \nPurchase Agreement (the 'Agreement') with Marc B. Randolph (the 'Founder') is \nmade this 12th day of June 1998 by and between the Founder and Netflix, Inc., a \nDelaware corporation (the 'Company').\n\n                                   RECITALS\n\n     WHEREAS, the Company and the Founder have previously entered into the \nAgreement pursuant to which the Company issued to Founder 2,700,000 shares of \nCommon Stock of the Company (the 'Shares') to induce Founder to contribute \ncertain property to the Company; and\n\n     WHEREAS, the Company and the Founder desire to amend the Agreement to \nprovide for certain limitations on the acceleration of vesting of the Shares in \nthe event of a change in control.\n\n     NOW, THEREFORE, the Founder and the Company agree that the Agreement shall \nbe amended as follows:\n\n     1.   Section 4 titled 'Release of Shares From Repurchase Option' is hereby \namended in its entirety to read as follows:\n\n     '4.  Release of Shares From Repurchase Option.\n          ----------------------------------------\n\n          (a)  (i)  Twenty-five percent (25%) of the Shares shall be released \nfrom the Company's repurchase option exactly one year after the date of \nexecution of this Agreement and one forty-eighth (1\/48) of the Shares shall be \nreleased each month thereafter, provided in each case that the Founder's \nContinuous Status with the Company has not terminated prior to the date of any \nsuch release.\n\n               (ii) With respect to the vesting set forth in Section 4(a)(i) \nabove, in the case of an Acquisition of the Company (as defined below), then the\nbalance of the Shares which have not yet been released from the Company's \nrepurchase option as set forth above shall be released from the Company's \nrepurchase option as follows:\n\n                         (A)  Fifty percent (50%) of the Unreleased Shares (as \ndefined below) shall be released from the Company's repurchase option as of the \ndate of closing of the Acquisition.\n\n                         (B)  Upon consummation of the Acquisition, the \nremainder of the Unreleased Shares shall continue to vest in accordance with the\nterms of this Agreement;\n\n\n \nprovided, however, that if Founder's employment with the Company or the\n--------  -------\nsuccessor corporation, as applicable, is terminated by the successor corporation\nas a result of an Involuntary Termination (as defined below) other than for\nCause (as defined below) within twelve months following an Acquisition, the\nremainder of all Unreleased Shares shall be released from the Company's\nrepurchase option as of the date of such Involuntary Termination.\n\n     For purposes of this Section 4, any of the following events shall\nconstitute an 'Involuntary Termination': (i) a significant reduction of the\nFounder's duties, authority or responsibilities, relative to the Founder's\nduties, authority or responsibilities as in effect immediately prior to the\nAcquisition, or the assignment to Founder of such reduced duties, authority or\nresponsibilities; (ii) a substantial reduction of the facilities and perquisites\n(including office space and location) available to the Founder immediately prior\nto the Acquisition; (iii) a reduction in the base salary of the Founder as in\neffect immediately prior to the Acquisition; (iv) a material reduction in the\nkind or level of employee benefits, including bonuses, to which the Founder was\nentitled immediately prior to the Acquisition with the result that the Founder's\noverall benefits package is significantly reduced; (v) the relocation of the\nFounder to a facility or a location more than fifty (50) miles from the\nFounder's then present location, without the Founder's express written consent;\n(vi) any purported termination of the Founder by the successor corporation which\nis not effected for disability or for Cause, or any purported termination for\nwhich the grounds relied upon are not valid; or (vii) any act or set of facts or\ncircumstances which would, under California law or statute constitute a\nconstructive termination of the Founder.\n\n     For purposes of this Section 4, 'Cause' shall mean (i) any act of personal\ndishonesty taken by the Founder in connection with his responsibilities as an\nemployee and intended to result in substantial personal enrichment of the\nFounder, (ii) the conviction of a felony, (iii) a willful act by the Founder\nwhich constitutes gross misconduct and which is injurious to the successor\ncorporation, and (iv) following delivery to the Founder of a written demand for\nperformance from the successor corporation which describes the basis for the\nsuccessor corporation's belief that the Founder has not substantially performed\nhis duties, continued violations by the Founder of the Founder's obligations to\nthe successor corporation which are demonstrably willful and deliberate on the\nFounder's part.\n\n     For purposes of this Agreement, 'Acquisition' shall mean the Company's\nacquisition by an unaffiliated third party by way of merger after which the\nstockholders of the Company own less than fifty percent (50%) of the outstanding\nvoting securities of the surviving corporation, or by way of sale by the Company\nof all or substantially all of its assets or stock.\n\n     (b)  Any of the Shares which have not yet been released from the Company's\nrepurchase option (and any shares of capital stock or other property\nexchangeable therefor pursuant to an Acquisition) are referred to herein as\n'Unreleased Shares.'\n\n     (c)  The Shares which have been released from the Company's repurchase\noption shall be delivered to the Founder at the Founder's request (see Section 6\nhereof).\n\n\n \n     IN WITNESS WHEREOF, this Amendment has been entered into as of the date\nfirst set forth above.\n\n\nNETFLIX, INC.                                FOUNDER\n\n\nBy: \/s\/ Marc Randolph                        \/s\/ Marc Randolph\n    ---------------------------------------  ----------------------------\n\nName: Marc Randolph\n      -------------------------------------\n\nTitle: President &amp; Chief Executive Officer\n       ------------------------------------\n\n                                       3\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8324],"corporate_contracts_industries":[9469],"corporate_contracts_types":[9539,9544],"class_list":["post-39396","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-netflix-inc","corporate_contracts_industries-media__rental","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39396","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39396"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39396"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39396"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39396"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}