What changed in this filing

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Item 9A. Controls and Procedures

2024-09-19 compared with 2023-09-21 · 38 added, 73 removed, 181 unchanged (38% of the section changed)

1 unchanged sentence

Evaluation of Disclosure Controls and Procedures

Our management, with the participation of our principal executive officer and our principal financial officer, has evaluated the effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended ("Exchange Act")).

As initially disclosed in our Annual Report on Form 10-K/A filed with the SEC on May 24, 2023, our management identified a material weakness in our internal control over financial reporting.

As described below, while our management, with the oversight of the Audit Committee of our Board of Directors, has made significant progress toward remediating this material weakness, our management determined that this material weakness has not yet been fully remediated.

Accordingly, based on our management’s evaluation, our principal executive officer and principal financial officer concluded that our disclosure controls and procedures were not effective as of July 31, 2023.

Notwithstanding this material weakness, our management concluded that our consolidated financial statements included in Part II, Item 8 of this Annual Report on Form 10-K fairly present, in all material respects, our financial condition, results of operations and cash flows as of and for the periods presented in conformity with U.S.

Management’s Report on Internal Control over Financial Reporting

Based on our management’s evaluation, our principal executive officer and principal financial officer concluded that our disclosure controls and procedures were, in design and operation, effective at the reasonable assurance level as of July 31, 2024.

Management’s Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Rule 13a-15(f) and Rule 15d-15(f) of the Exchange Act.

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Our management evaluated the effectiveness of our internal control over financial reporting using the criteria set forth in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (the "COSO Framework").

Our management has identified control deficiencies, as previously disclosed, that, individually or in the aggregate, constitute a material weakness in our internal control over financial reporting.

While our management, with the oversight of the Audit Committee of our Board of Directors, has made significant progress toward remediating the material weakness, our management has determined that the material weakness has not yet been fully remediated.

As a result, our management has concluded that our internal control over financial reporting was not effective as of July 31, 2023.

A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of a company's annual or interim financial statements will not be prevented or detected on a timely basis.

The material weakness identified by management primarily relates to design deficiencies in the information and communication component of the COSO Framework, that also impacted the design and operating effectiveness of elements of the risk assessment and other components.

In particular, we determined that our controls were not designed and operating effectively to provide the information necessary for our risk assessment process to identify non-compliant use of third-party software as a risk of material misstatement in our financial reporting and we did not effectively reinforce the importance of raising concerns about perceived unethical conduct in a timely manner.

These control deficiencies, individually or in the aggregate, create a reasonable possibility that a material misstatement of our consolidated financial statements would not be prevented or detected on a timely basis, and constitute a material weakness in our internal control over financial reporting.

This material weakness resulted in an immaterial error in the reporting of expenses for software licenses and support for each prior period beginning in August 2014, which we have corrected prospectively as we issue future financial statements, as disclosed in Note 2 of Notes to Consolidated Financial Statements included in Part II, Item 8 of this Annual Report on Form 10-K.

We have evaluated the materiality of this error and determined that the impact is not material to our previously issued financial statements.

Remediation Efforts to Address Material Weakness

Our management and the Audit Committee of our Board of Directors are committed to remediating the material weakness and strengthening our overall internal control over financial reporting.

To this end, our management, with oversight from the Audit Committee, has implemented many of the remedial measures outlined in the remediation plan initially disclosed in our Annual Report on Form 10-K/A filed with the SEC on May 24, 2023 and remains in the process of implementing the remaining remedial measures.

Our goal is to implement the remaining remedial measures by the end of the fiscal quarter ending January 31, 2024.

To date, we have implemented the following remedial measures outlined in the remediation plan:

We have enhanced management’s quarterly sub-certification process related to non-compliant use of third-party software and increased the certifiers’

awareness of financial reporting implications of non-compliant use of third-party software.

We have enhanced management’s disclosure committee process related to non-compliant use of third-party software.

We have enhanced the finance department’s process for collecting information about unaccrued software expenditures and/or other potential unrecorded usage of third-party software.

We have educated business unit representatives on understanding potential items, activities or services that require accrual.

We have trained relevant employees on appropriate software acquisition and usage practices and software licensing compliance.

We have revised our code of business conduct and ethics to reinforce the importance of compliant use of third-party software.

We have provided additional training of, and communications to, employees to further promote ethical conduct and timely escalation of concerns.

The remaining remedial measures outlined in the remediation plan, which are being implemented as scheduled, include the following:

Completing the design and implementation of additional systems, processes and controls over third-party software license procurement, usage, and compliance.

Our management believes that the remediation measures described above will remediate the material weakness and strengthen our overall internal control over financial reporting.

As our management continues to evaluate and work to enhance our internal control over financial reporting, our management may take additional measures to address control deficiencies or we may modify some of the remediation measures described above.

The material weakness will not be considered remediated until the applicable remediated controls operate for a sufficient period of time and management has concluded, through testing, that these controls are operating effectively.

Based on our management’s evaluation, our management concluded that our internal control over financial reporting was effective as of July 31, 2024.

The effectiveness of our internal control over financial reporting as of July 31, 2024 has been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which appears below.

Remediation of Prior Material Weakness

As initially disclosed in our Annual Report on Form 10-K/A filed with the SEC on May 24, 2023, our management previously identified a material weakness in our internal control over financial reporting related to design deficiencies in the information and communication component of the COSO Framework that also impacted the design and operating effectiveness of elements of the risk assessment and other components.

Management has since completed implementation of all of the remedial measures outlined in its remediation plan as well as testing of the applicable remediated controls.

Limitations on the Effectiveness of Controls

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Changes in Internal Control over Financial Reporting

Except for the remediation measures we have implemented to address the previously identified material weakness noted above, there was no change in our internal control over financial reporting identified in connection with the evaluation required by Rule 13a-15(d) and 15d-15(d) of the Exchange Act that occurred during the most recently completed fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

Except for the changes related to the remediation of the previously identified material weakness noted above, there was no change in our internal control over financial reporting identified in connection with the evaluation required by Rule 13a-15(d) and 15d-15(d) of the Exchange Act that occurred during the most recently completed fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

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We have audited the internal control over financial reporting of Nutanix, Inc.

and subsidiaries (the "Company") as of July 31, 2023, based on criteria established in Internal Control —

Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

In our opinion, because of the effect of the material weakness identified below on the achievement of the objectives of the control criteria, the Company has not maintained effective internal control over financial reporting as of July 31, 2023, based on criteria established in Internal Control —

Integrated Framework (2013) issued by COSO.

and subsidiaries (the “Company”) as of July 31, 2024, based on criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of July 31, 2024, based on criteria established in Internal Control — Integrated Framework (2013) issued by COSO.

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated financial statements as of and for the year ended July 31, 2024, of the Company and our report dated September 19, 2024, expressed an unqualified opinion on those financial statements.

Basis for Opinion

The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management's Report on Internal Control over Financial Reporting.

Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.

We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S.

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Definition and Limitations of Internal Control over Financial Reporting

A company’s 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.

A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company;

(2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company;

and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

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.

Material Weakness

A material weakness is a deficiency or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the company’s annual or interim financial statements will not be prevented or detected on a timely basis.

The following material weakness has been identified and included in management's assessment.

The material weakness relates to design deficiencies in the information and communication component of the COSO framework, that also impacted the design and operating effectiveness of elements of the risk assessment and other components.

In particular, controls were not designed and operating effectively to provide the information necessary for the risk assessment process to identify non-compliant use of third-party software as a risk of material misstatement in the Company’s financial reporting and did not effectively reinforce the importance of raising concerns about perceived unethical conduct in a timely manner.

This resulted in the understatement of expenses for software licenses and support for prior periods.

This material weakness was considered in determining the nature, timing, and extent of audit tests applied in our audit of the consolidated financial statements as of and for the year ended July 31, 2023, of the Company, and this report does not affect our report on such financial statements.

/s/ DELOITTE & TOUCHE LLP

2 unchanged sentences

Other Information

Rule 10b5-1 Trading Plans

On June 14, 2023 , David Sangster , our Chief Operating Officer , entered into a trading plan that is intended to satisfy the affirmative defense conditions of Rule 10b5-1(c) under the Exchange Act.

Sangster’s plan provides for the sale of up to 101,474 shares of Class A common stock and up to 50% of the net shares that Mr.

Sangster may receive from the vesting of certain outstanding awards of restricted stock units from time to time between September 13, 2023 through August 8, 2024.

Due to pricing conditions in the plan and the vesting conditions of the awards, the number of shares actually sold under the plan may be less than the maximum number of shares that can be sold.

The plan will expire on September 13, 2024, or earlier if all transactions under the plan are completed.

On June 22, 2023 , Rajiv Ramaswami , our President and Chief Executive Officer , entered into a trading plan that is intended to satisfy the affirmative defense conditions of Rule 10b5-1(c ) under the Exchange Act.

Ramaswami’s plan provides for the sale of up to 210,098 shares of Class A common stock upon vesting of restricted stock units and performance-based restricted stock units and up to 20% of the net shares that Mr.

Ramaswami may receive from the vesting of certain outstanding awards of restricted stock units and performance-based restricted stock units from time to time between September 21, 2023 through August 8, 2024.

Due to pricing conditions in the plan and the vesting conditions of the awards, the number of shares actually sold under the plan may be less than the maximum number of shares that can be sold.

The plan will expire on September 23, 2024, or earlier if all transactions under the plan are completed.

During the three months ended July 31, 2024 , no director or Section 16 officer adopted or terminated any Rule 10b5-1 trading arrangements or non-Rule 10b5-1 trading arrangements (in each case, as defined in Item 408(a) of Regulation S-K).

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections

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Exhibit Title

Amended and Restated Certificate of Incorporation.

Complete copy of the Amended and Restated Certificate of Incorporation, as amended, consisting of (i) the Amended and Restated Certificate of Incorporation filed on December 9, 2022 and (ii) the Certificate of Amendment filed on December 8, 2023 .

Amended and Restated Bylaws.

Certificate of Retirement of Class B Common Stock.

Amended and Restated Investors’

Rights Agreement, dated as of August 26, 2014, as amended, by and among the Registrant and certain of its stockholders.

Amended and Restated Investors’ Rights Agreement, dated as of August 26, 2014, as amended, by and among the Registrant and certain of its stockholders.

Specimen Class A Common Stock Certificate of the Registrant.

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Form of Global Restricted Stock Unit Agreement for Performance-Based Restricted Stock Units (Fiscal Year 2022) under the 2016 Equity Incentive Plan.

Form of Global Restricted Stock Unit Agreement for Performance-Based Restricted Stock Units (Fiscal Year 2023) under the 2016 Equity Incentive Plan.

Form of Global Restricted Stock Unit Agreement for Performance-Based Restricted Stock Units (Fiscal Year 2024) under the 2016 Equity Incentive Plan.

Form of Global Restricted Stock Unit Agreement for Performance-Based Restricted Stock Units

Incorporated by Reference

Exhibit Title

(Fiscal Year 2023) under the 2016 Equity Incentive Plan.

Form of Global Restricted Stock Unit Agreement for Performance-Based Restricted Stock Units (Fiscal Year 2024) under the 2016 Equity Incentive Plan.

Form of Global Restricted Stock Unit Agreement for Performance-Based Restricted Stock Units (Fiscal Year 2025) under the 2016 Equity Incentive Plan.

Amended and Restated 2016 Employee Stock Purchase Plan and forms of equity agreements thereunder.

5 unchanged sentences

Offer Letter, dated as of November 20, 2017, by and between the Registrant and Tyler Wall .

Form of Global Restricted Stock Unit Agreement for the Stock Price Performance-Based Restricted Stock Units.

Form of Global Restricted Stock Unit Agreement for the Operational Metrics Performance-Based Restricted Stock Units.

Transition Agreement and Release, dated as of February 7, 2024, by and between the Registrant and Tyler Wall .

Offer Letter, dated as of April 29, 2024, by and between the Registrant and Brian Martin.

Senior Advisor Agreement, dated as of September 3, 2024, by and between the Registrant and David Sangster.

Change of Control and Severance Policy.

3 unchanged sentences

Amendment Two to Original Equipment Manufacturer (OEM) Purchase Agreement, dated as of October 31, 2018, by and between the Registrant and Super Micro Computer, Inc.

Incorporated by Reference

Exhibit Title

Participation Agreement to the Original Equipment Manufacturer Purchase Agreement, entered into as of September 26, 2019, by and between the Registrant, Nutanix Netherlands B.V.

5 unchanged sentences

Sixth Amendment to the Office Lease dated as of January 29, 2018, by and between the Registrant and Hudson 1740 Technology, LLC.

Incorporated by Reference

Exhibit Title

Seventh Amendment to the Office Lease dated as of April 4, 2018, by and between the Registrant and Hudson 1740 Technology, LLC.

4 unchanged sentences

Twelfth Amendment to the Office Lease dated as of August 31, 2022, by and between the Registrant and Hudson 1740 Technology, LLC.

Thirteenth Amendment to the Office Lease dated as of November 16, 2023, by and between the Registrant and Hudson 1740 Technology, LLC.

Fourth Amendment to the Office Lease dated as of April 4, 2018, by and between the Registrant and Hudson Metro Plaza, LLC.

1 unchanged sentence

Sixth Amendment to the Office Lease dated as of April 5, 2019, by and between the Registrant and Hudson Metro Plaza, LLC.

Incorporated by Reference

Exhibit Title

Seventh Amendment to the Office Lease dated as of April 25, 2019, by and between the Registrant and Hudson Metro Plaza, LLC.

7 unchanged sentences

First Amendment to the Office Lease, dated as of October 22, 2019, by and between the Registrant and Hudson Concourse, LLC.

Incorporated by Reference

Exhibit Title

Confirmation Letter, dated as of November 12, 2019, relating to the Office Lease by and between the Registrant and Hudson Concourse, LLC.

6 unchanged sentences

Amendment to Investment Agreement, dated as of September 24, 2020, by and between the Registrant and BCPE Nucleon (DE) SPV, LP.

Insider Trading Policy .

List of significant subsidiaries of the Registrant.

Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm.

Consent of Deloitte & Touche LLP, Independent

Incorporated by Reference

Exhibit Title

Registered Public Accounting Firm.

Power of Attorney (included on the Signatures page of this Annual Report on Form 10-K).

5 unchanged sentences

Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.*

Compensation Recovery Policy .

Inline XBRL Instance Document.

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Inline XBRL Taxonomy Extension Presentation Linkbase Document.

Incorporated by Reference

Exhibit Title

Cover Page Interactive Data File (formatted as inline XBRL with applicable taxonomy extension information contained in Exhibits 101)

45 unchanged sentences

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures