NetFlix 2005 Annual Report Download - page 35

Provisions in our charter documents and under Delaware law could discourage a takeover that
stockholders may consider favorable.
Our charter documents may discourage, delay or prevent a merger or acquisition that a stockholder may
consider favorable because they:
• authorize our board of directors, without stockholder approval, to issue up to 10,000,000 shares of
undesignated preferred stock;
• provide for a classified board of directors;
• prohibit our stockholders from acting by written consent;
• establish advance notice requirements for proposing matters to be approved by stockholders at
stockholder meetings; and
• prohibit stockholders from calling a special meeting of stockholders.
In addition, a merger or acquisition may trigger retention payments to certain executive employees under the
terms of our Executive Severance and Retention Incentive Plan, thereby increasing the cost of such a transaction.
As a Delaware corporation, we are also subject to certain Delaware anti-takeover provisions. Under Delaware
law, a corporation may not engage in a business combination with any holder of 15 percent or more of its capital
stock unless the holder has held the stock for three years or, among other things, the board of directors has
approved the transaction. Our board of directors could rely on Delaware law to prevent or delay an acquisition of
us.
Our stock price is volatile.
The price at which our common stock has traded since our May 2002 initial public offering has fluctuated
significantly. The price may continue to be volatile due to a number of factors including the following, some of
which are beyond our control:
• variations in our operating results;
• variations between our actual operating results and the expectations of securities analysts, investors and
the financial community;
• announcements of developments affecting our business, systems or expansion plans by us or others;
• competition, including the introduction of new competitors, their pricing strategies and services;
• market volatility in general;
• the level of short interest in our stock; and
• the operating results of our competitors.
As a result of these and other factors, investors in our common stock may not be able to resell their shares at
or above their original purchase price.
Following certain periods of volatility in the market price of our securities, we became the subject of
securities litigation. We may experience more such litigation following future periods of volatility. This type of
litigation may result in substantial costs and a diversion of management’s attention and resources.
We record substantial expenses related to our issuance of stock options that may have a material negative
impact on our operating results for the foreseeable future.
During the second quarter of 2003, we adopted the fair value recognition provisions of Statement of
Financial Accounting Standards No. 123 “Accounting for Stock-Based Compensation” (“SFAS 123”) for stock-
based employee compensation. In addition, during the third quarter of 2003, we began granting stock options to
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