Item 9A. Controls and Procedures
Item 9A. Controls and Procedures
(a) Evaluation of Disclosure Controls and Procedures
The phrase “disclosure controls and procedures” refers to controls and procedures designed to ensure that information required to be disclosed in our reports filed or submitted under the Securities Exchange Act of 1934, as amended (the Exchange Act), such as this Annual Report on Form 10-K, is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the U.S. Securities and Exchange Commission (SEC). Disclosure controls and procedures are also designed to ensure that such information is accumulated and communicated to our management, including our Chief Executive Officer (CEO) and our Chief Financial Officer (CFO), as appropriate to allow timely decisions regarding required disclosure.
Under the supervision and with the participation of our management, including our CEO and CFO, we carried out an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act, as of April 30, 2021, the end of the fiscal period covered by this Annual Report on Form 10-K (the Evaluation Date). Based on this evaluation, our CEO and CFO concluded as of the Evaluation Date that our disclosure controls and procedures were effective such that the information required to be disclosed in our SEC reports (i) is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms and (ii) is accumulated and communicated to our management, including our CEO and CFO, as appropriate to allow timely decisions regarding required disclosure.
(b) Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rule 13a-15(f). Our internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on the criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this assessment, our management concluded that, as of April 30, 2021, our internal control over financial reporting was effective at the reasonable assurance level based on those criteria.
The effectiveness of our internal control over financial reporting as of April 30, 2021 has been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is included in Part II, Item 8 of this Annual Report on Form 10-K.
(c) Changes in Internal Control Over Financial Reporting
There has been no change in our internal control over financial reporting identified in connection with our evaluation required by paragraph (d) of rules 13a-15 and 15d-15 under the Exchange Act that occurred during the fourth quarter of fiscal 2021 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
Disclosure Pursuant to Section 13(r) of the Exchange Act
This disclosure is made pursuant to Section 219 of the Iran Threat Reduction and Syria Human Rights Act of 2012 which added subsection (r) to Section 13 of the Exchange Act (Section 13(r)). Section 13(r) requires an issuer to disclose in its annual or quarterly reports whether it or any of its affiliates have knowingly engaged in certain activities, transactions or dealings relating to certain countries including Russia. Disclosure of such activities, transactions or dealings is required even when conducted outside the United States by non-U.S. persons in compliance with applicable law, and whether or not such activities are sanctionable under U.S. law.
During the period from April 25, 2020 to April 30, 2020, we filed notifications with the Russian Federal Security Service (“FSB”) for two products. Those notifications are required under Russian law to qualify our products for importation into, and distribution within, the Russian Federation. The filing of those notifications with the FSB is specifically authorized under OFAC General License 1B, as amended as of March 2, 2021.
90
The filing of the production notifications with the FSB is a regulatory compliance procedure required under Russian law for the importation and distribution of our products in Russia. We have not sold or supplied any goods or services directly or indirectly to the FSB, and we have not derived any revenues from any such notifications to the FSB.
We may, in the future, file additional notifications for our products with the FSB to the extent those product notifications are required under Russian law to qualify the products for importation or distribution in Russia, but only so long as those activities are authorized by OFAC General License 1B or any successor general license or other authorization issued by OFAC.
91
PART III
Item 10. Directors, Executive Officers and Corporate Governance
The information required by Item 10 with respect to our executive officers is incorporated herein by reference from the information under Item 1 – Business of Part I of this Annual Report on Form 10-K under the section entitled “Executive Officers.” The information required by Item 10 with respect to the Company’s directors and corporate governance is incorporated herein by reference from the information provided under the headings “Election of Directors” and “Corporate Governance,” respectively, in the Proxy Statement for the 2021 Annual Meeting of Stockholders, which will be filed with the Securities and Exchange Commission within 120 days of our year ended April 30, 2021. The information required by Item 405 of Regulation S-K is incorporated herein by reference from the information provided under the heading “Delinquent Section 16(a) Reports” in the Proxy Statement for the 2021 Annual Meeting of Stockholders.
We have adopted a written code of ethics that applies to our Board of Directors and all of our employees, including our principal executive officer and principal financial and accounting officer. A copy of the code of ethics, which we refer to as our “Code of Conduct,” is available on our website at http://netapp.com/us/media/code-of-conduct.pdf. We will post any amendments to or waivers from the provisions of our Code of Conduct on our website.
Item 11. Executive Compensation
Information regarding the compensation of executive officers and directors of the Company is incorporated by reference from the information under the headings “Executive Compensation and Related Information” and “Director Compensation,” respectively, in our Proxy Statement for the 2021 Annual Meeting of Stockholders.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Information regarding security ownership of certain beneficial owners and management and related stockholder matters is incorporated by reference from the information under the heading “Security Ownership of Certain Beneficial Owners and Management” in our Proxy Statement for the 2021 Annual Meeting of Stockholders.
Item 13. Certain Relationships and Related Transactions, and Director Independence
Information regarding certain relationships and related transactions and director independence is incorporated by reference from the information under the headings “Corporate Governance” and “Certain Transactions with Related Parties” in our Proxy Statement for the 2021 Annual Meeting of Stockholders.
Item 14. Principal Accountant Fees and Services
The information required by this item is incorporated by reference from the information under the caption “Audit Fees” in our Proxy Statement for the 2021 Annual Meeting of Stockholders.
With the exception of the information incorporated in Items 10, 11, 12, 13 and 14 of this Annual Report on Form 10-K, NetApp’s Proxy Statement is not deemed “filed” as part of this Annual Report on Form 10-K.
PART IV
Item 15. Exhibits, Financial Statement Schedules
(a)
Documents filed as part of this report
(1)
All Financial Statements
See index to Consolidated Financial Statements in Part II, Item 8 of this Form 10-K
(2)
Financial Statement Schedules
All financial statement schedules have been omitted, since the required information is not applicable or is not present in amounts sufficient to require submission of the schedule, or because the information required is included in the consolidated financial statements and notes thereto included in this Form 10-K.
(3)
Exhibits required by Item 601 of Regulation S-K
The information required by this Section (a)(3) of Item 15 is as follows:
92
EXHIBIT INDEX
Incorporation by Reference
Exhibit No
Description
Form
File No.
Exhibit
Filing Date
3.1
Certificate of Incorporation of the Company, as amended.
10-Q
000-27130
3.1
November 26, 2013
3.2
Bylaws of the Company.
8-K
000-27130
3.1
April 30, 2018
4.1
Indenture dated December 12, 2012, by and between the Company and U.S. Bank National Association.
8-K
000-27130
4.1
December 12, 2012
4.2
First Supplemental Indenture dated December 12, 2012, by and between the Company and U.S. Bank National Association.
8-K
000-27130
4.2
December 12, 2012
4.3
Second Supplemental Indenture dated June 5, 2014 by and between the Company and U.S. Bank National Association.
8-K
000-27130
4.1
June 5, 2014
4.4
Third Supplemental Indenture dated September 29, 2017 by and between the Company and U.S. Bank National Association.
8-K
000-27130
4.2
September 29, 2017
4.5
Fourth Supplemental Indenture, dated June 22, 2020, by and between NetApp, Inc. and U.S. Bank National Association.
8-K
000-27130
4.2
June 22, 2020
4.6
Description of Capital Stock of the Company
—
—
—
—
10.1*
Form of Indemnification Agreement by and between the Company and each of its directors and executive officers.
10-Q
000-27130
10.1
August 28, 2014
10.2*
Form of Change of Control Severance Agreement.
8-K
000-27130
10.1
May 22, 2019
10.3*
The Company’s Amended and Restated Executive Compensation Plan, as amended effective June 20, 2018.
10-Q
000-27130
10.1
August 21, 2018
10.4*
The Company’s Deferred Compensation Plan.
8-K
000-27130
2.1
July 7, 2005
10.5*
The Company’s Amended and Restated Employee Stock Purchase Plan, as amended effective July 19, 2018.
DEF 14A
000-27130
Appendix B
August 1, 2018
10.6*
The Company’s Amended and Restated 1995 Stock Incentive Plan. (P)
DEF 14A
000-27130
August 21, 1998
10.7*
Form of Stock Option Agreement approved for use under the Company’s amended and restated 1995 Stock Option Plan.
10-K
000-27130
10.21
July 8, 2005
93
Incorporation by Reference
Exhibit No
Description
Form
File No.
Exhibit
Filing Date
10.8*
Form of Stock Issuance Agreement approved for use under the Company’s amended and restated 1995 Stock Option Plan (Restricted Stock).
10-K
000-27130
10.23
July 8, 2005
10.9*
Form of Stock Option Agreement approved for use under the Company’s amended and restated 1995 Stock Option Plan (Chairman of the Board or any Board Committee Chairperson).
10-K
000-27130
10.22
July 8, 2005
10.10*
The Company’s Amended and Restated 1999 Stock Option Plan, as amended effective July 19, 2018.
DEF 14A
000-27130
Appendix A
August 1, 2018
10.11*
Form of Stock Option Agreement approved for use under the Company’s amended and restated 1999 Stock Option Plan.
10-Q
000-27130
10.3
November 26, 2013
10.12*
Form of Restricted Stock Unit Agreement approved for use under the Company’s amended and restated 1999 Stock Option Plan (Employees).
10-Q
000-27130
10.4
November 26, 2013
10.13*
Form of Restricted Stock Unit Agreement (Employees) approved for use under the Company’s 1999 Stock option Plan, effective June 2019.
10-K
000-27130
10.14
June 15, 2020
10.14*
Form of Stock Option Agreement approved for use under the Company’s amended and restated 1999 Stock Option Plan (Non-Employee Director Automatic Stock Option — Initial).
10-K
000-27130
10.29
July 8, 2005
10.15*
Form of Stock Option Agreement approved for use under the Company’s amended and restated 1999 Stock Option Plan (Non-Employee Director Automatic Stock Option — Annual).
10-K
000-27130
10.28
July 8, 2005
10.16*
Form of Restricted Stock Unit Agreement approved for use under the Company’s amended and restated 1999 Stock Option Plan (Non-Employees Directors).
10-K
000-27130
10.17
June 18, 2010
10.17*
Form of Restricted Stock Unit Agreement (Non-Employee Directors) approved for use under the Company’s 1999 Stock Option Plan.
10-Q
000-27130
10.2
February 11, 2019
10.18*
Form of Restricted Stock Unit Agreement (Non-Employee Directors) approved for use under the Company’s 1999 Stock Option Plan, effective June 2019.
10-K
000-27130
10.19
June 15, 2020
94
Incorporation by Reference
Exhibit No
Description
Form
File No.
Exhibit
Filing Date
10.19*
Form of Restricted Stock Unit Agreement (Performance Based) under the NetApp, Inc. 1999 Stock Option Plan.
8-K
000-27130
10.1
June 26, 2015
10.20*
Form of Restricted Stock Unit Agreement (Performance-Based) Total Stockholder Return approved for use under the Company’s 1999 Stock Option Plan.
10-Q
000-27130
10.2
August 21, 2018
10.21*
Form of Restricted Stock Unit Agreement (Performance-Based) – Adjusted Operating Income approved for use under the Company’s 1999 Stock Option Plan.
10-Q
000-27130
10.3
August 21, 2018
10.22*
Form of Restricted Stock Unit Agreement (Performance-Based) Total Stockholder Return approved for use under the Company’s 1999 Stock Option Plan, effective June 2019.
10-K
000-27130
10.23
June 15, 2020
10.23*
Form of Restricted Stock Unit Agreement (Performance-Based) – Adjusted Operating Income approved for use under the Company’s 1999 Stock Option Plan, effective June 2019.
10-K
000-27130
10.24
June 15, 2020
10.24*
Form of Stock Option Agreement approved for use under the Company’s amended and restated 1999 Stock Option Plan (China).
10-K
000-27130
10.27
July 8, 2005
10.25*
Form of Stock Option Agreement approved for use under the Company’s amended and restated 1999 Stock Option Plan (France).
10-K
000-27130
10.30
July 8, 2005
10.26*
Form of Stock Option Agreement approved for use under the Company’s amended and restated 1999 Stock Option Plan (India).
10-K
000-27130
10.31
July 8, 2005
10.27*
Form of Stock Option Agreement approved for use under the Company’s amended and restated 1999 Stock Option Plan (United Kingdom).
10-K
000-27130
10.32
July 8, 2005
10.28*
Form of Stock Option Agreement approved for use under the Company’s amended and restated 1999 Stock Option Plan (Israel).
10-K
000-27130
10.81
June 24, 2008
10.29*
Bycast Inc. 2010 Equity Incentive Plan.
S-8
333-167619
99.1
June 18, 2010
10.30*
Incentive Stock Option Plan of Bycast Inc.
S-8
333-167619
99.2
June 18, 2010
10.31*
SolidFire, Inc. 2010 Stock Incentive Plan.
S-8
333-209570
99.1
February 17, 2016
10.32*
SolidFire, Inc. 2016 Equity Incentive Plan.
S-8
333-209570
99.2
February 17, 2016
95
Incorporation by Reference
Exhibit No
Description
Form
File No.
Exhibit
Filing Date
10.33*
Outside Director Compensation Policy (effective September 1, 2018) of the Company.
10-Q
000-27130
10.1
February 11, 2019
10.34
NetApp, Inc. Executive Retiree Health Plan, as amended and restated.
8-K
000-27130
10.1
November 21, 2016
10.35
Amended and Restated Credit Agreement, dated as of January 22, 2021, by and among NetApp, Inc., the lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent.
8-K
000-27130
10.1
January 22, 2021
10.36
Form of Dealer Agreement between the Company, as issuer, and each Dealer.
8-K
000-27130
10.2
December 12, 2016
10.37
Collared Accelerated Share Repurchase Transaction dated as of June 5, 2013, by and between the Company and Goldman, Sachs & Co.
10-Q
000-27130
10.1
August 29, 2013
10.38
Agreement of Purchase and Sale and Joint Escrow Instructions dated as of March 9, 2016 by and between the Company and Google Inc.
10-K
000-27130
10.41
June 22, 2016
10.39
First Amendment to Agreement of Purchase and Sale and Joint Escrow Instructions dated as of March 11, 2016, by and between the Company and Google Inc.
10-K
000-27130
10.42
June 22, 2016
10.40
Second Amendment to Agreement of Purchase and Sale and Joint Escrow Instructions dated as of April 8, 2016, by and between the Company and Google Inc.
10-K
000-27130
10.43
June 22, 2016
10.41
Agreement of Purchase and Sale and Joint Escrow Instructions dated as of September 11, 2017 by and between the Company and Google Inc.
10-Q
000-27130
10.2
November 29, 2017
10.42
First Amendment to Agreement of Purchase and Sale and Joint Escrow Instructions dated as of October 2, 2017, by and between the Company and Google LLC.
10-Q
000-27130
10.3
November 29, 2017
10.43
Second Amendment to Agreement of Purchase and Sale and Joint Escrow Instructions dated as of October 25, 2017, by and between the Company and Google LLC.
10-Q
000-27130
10.4
November 29, 2017
96
Incorporation by Reference
Exhibit No
Description
Form
File No.
Exhibit
Filing Date
10.44
Third Amendment to Agreement of Purchase and Sale and Joint Escrow Instructions dated as of October 31, 2017, by and between the Company and Google LLC.
10-Q
000-27130
10.1
February 22, 2018
10.45
Fourth Amendment to Agreement of Purchase and Sale and Joint Escrow Instructions dated as of November 2, 2017, by and between the Company and Google LLC.
10-Q
000-27130
10.2
February 22, 2018
10.46
Fifth Amendment to Agreement of Purchase and Sale and Joint Escrow Instructions dated as of November 8, 2017, by and between the Company and Google LLC.
10-Q
000-27130
10.3
February 22, 2018
10.47
Sixth Amendment to Agreement of Purchase and Sale and Joint Escrow Instructions dated as of November 10, 2017, by and between the Company and Google LLC.
10-Q
000-27130
10.4
February 22, 2018
10.48
Seventh Amendment to the Agreement of Purchase and Sale and Joint Escrow Instructions dated as of March 15, 2019 by and between the Company and Google LLC.
10-K
000-27130
10.54
June 18, 2019
10.49
Separation Agreement dated May 28, 2020 by and between the Company and Henri Richard.
10-K
000-27130
10.57
June 15, 2020
10.50
Offer Letter for employment at the Company to César Cernuda, date March 23, 2020.
10-K
000-27130
10.58
June 15, 2020
10.51
Senior Executive Employment Contract by and between NetApp Sales Spain S.L., a subsidiary of the Company, and Cesar Cernuda, effective January 1, 2021
10-Q
000-27130
10.1
January 29, 2021
10.52
Offer Letter for employment at the Company to Michael J. Berry, dated January 30, 2020.
10-Q
000-27130
10.1
August 28, 2020
10.53
Underwriting Agreement, dated June 17, 2020, by and among the Company, Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, BofA Securities, Inc. and Morgan Stanley & Co. LLC.
8-K
000-27130
1.1
June 17, 2020
21.1
Subsidiaries of the Company.
—
—
—
—
23.1
Consent of Independent Registered Public Accounting Firm.
—
—
—
—
97
Incorporation by Reference
Exhibit No
Description
Form
File No.
Exhibit
Filing Date
24.1
Power of Attorney (see signature page).
—
—
—
—
31.1
Certification of the Chief Executive Officer pursuant to Section 302(a) of the Sarbanes-Oxley Act of 2002.
—
—
—
—
31.2
Certification of the Chief Financial Officer pursuant to Section 302(a) of the Sarbanes-Oxley Act of 2002.
—
—
—
—
32.1
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to section 906 of the Sarbanes-Oxley Act of 2002.
—
—
—
—
32.2
Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to section 906 of the Sarbanes-Oxley Act of 2002.
—
—
—
—
101.INS
Inline XBRL Instance Document – the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document
—
—
—
—
101.SCH
Inline XBRL Taxonomy Extension Schema Document
—
—
—
—
101.CAL
Inline XBRL Taxonomy Calculation Linkbase Document
—
—
—
—
101.DEF
Inline XBRL Taxonomy Extension Definition Linkbase Document
—
—
—
—
101.LAB
Inline XBRL Taxonomy Label Linkbase Document
—
—
—
—
101.PRE
Inline XBRL Taxonomy Extension Presentation Linkbase Document
—
—
—
—
104
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101)
* Identifies management plan or compensatory plan or arrangement.
(p) Identifies paper format filed exhibit.
98
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
NETAPP, INC.
By:
/s/ GEORGE KURIAN
George Kurian
Chief Executive Officer and Director
(Principal Executive Officer and Principal Operating Officer)
Date: June 21, 2021
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints George Kurian and Michael J. Berry, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Annual Report on Form 10-K, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature
Title
Date
/s/ GEORGE KURIAN
Chief Executive Officer and Director
(Principal Executive Officer
and Principal Operating Officer)
June 21, 2021
George Kurian
/s/ MICHAEL J. BERRY
Executive Vice President and Chief Financial Officer (Principal Financial Officer)
June 21, 2021
Michael J. Berry
/s/ ROBERT PARKS
Vice President and Chief Accounting Officer
(Principal Accounting Officer)
June 21, 2021
Robert Parks
/s/ T. MICHAEL NEVENS
Chairman of the Board
June 21, 2021
T. Michael Nevens
/s/ GERALD HELD
Director
June 21, 2021
Gerald Held
/s/ KATHRYN M. HILL
Director
June 21, 2021
Kathryn M. Hill
/s/ DEBORAH KERR
Director
June 21, 2021
Deborah Kerr
/s/ SCOTT SCHENKEL
Director
June 21, 2021
Scott Schenkel
/s/ GEORGE T. SHAHEEN
Director
June 21, 2021
George T. Shaheen
/s/ CARRIE PALIN
Director
June 21, 2021
Carrie Palin
/s/ DEEPAK AHUJA
Director
June 21, 2021
Deepak Ahuja
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