Item 9A. Controls and Procedures
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
An evaluation was performed under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, of 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 (the “Exchange Act”)) as of the end of the period covered by this report. Based upon that evaluation, our management, including our principal executive officer and principal financial officer, concluded that our disclosure controls and procedures were effective as of August 29, 2025 to provide reasonable assurance that the information required to be disclosed by us in the reports that we file or submit under the Exchange Act is (i) recorded, processed, summarized and reported within the time periods specified in the SEC rules and forms and (ii) accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosures.
Management’s Annual 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 the Exchange Act.
Management conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this evaluation, management concluded that our internal control over financial reporting was effective as of August 29, 2025 to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP. The effectiveness of our internal control over financial reporting as of August 29, 2025 has been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is included in this Annual Report on Form 10-K.
Changes in Internal Control Over Financial Reporting
During the fourth quarter of fiscal year 2025, there were no changes in our internal control over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Stockholders and the Board of Directors of Penguin Solutions, Inc.
Opinion on Internal Control over Financial Reporting
We have audited the internal control over financial reporting of Penguin Solutions, Inc. and subsidiaries (the “Company”) as of August 29, 2025, 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 August 29, 2025, 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 August 29, 2025, of the Company and our report dated October 21, 2025, 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 Annual 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. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
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.
/s/ DELOITTE & TOUCHE LLP
San Jose, California
October 21, 2025
121
Item 9B. Other Information
During the fiscal quarter ended August 29, 2025, no officers or directors of Penguin Solutions adopted or terminated a “Rule 10b5-1 trading arrangement” or a “non-Rule 10b5-1 trading arrangement” (in each case, as defined in Item 408 of Regulation S-K).
Item 9C. Disclosure Regarding Foreign Jurisdictions That Prevent Inspections
Not applicable.
122
PART III
Item 10. Directors, Executive Officers and Corporate Governance
The information required by Item 10 is incorporated herein by reference to our 2025 Proxy Statement for our next Annual Meeting of Stockholders to be filed with the SEC no later than 120 days after August 29, 2025.
We have adopted a Code of Business Conduct and Ethics that applies to our officers, directors and employees, and that is available on our website (www.penguinsolutions.com) under “Governance.” The Code of Business Conduct and Ethics is intended to qualify as a “code of ethics” within the meaning of Section 406 of the Sarbanes-Oxley Act of 2002, as amended, and Item 406 of Regulation S-K. In addition, we intend to promptly disclose on our website (1) any amendment to our Code of Business Conduct and Ethics that applies to our directors or our principal executive officer, principal financial officer, principal accounting officer or controller or persons performing similar functions and (2) the nature of any waiver, including an implicit waiver, from a provision of our Code of Business Conduct and Ethics that is granted to a director or one of these specified officers, the name of such person who is granted the waiver and the date of the waiver.
Item 11. Executive Compensation
The information required by Item 11 is incorporated herein by reference to our 2025 Proxy Statement for our next Annual Meeting of Stockholders to be filed with the SEC no later than 120 days after August 29, 2025.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by Item 12, including Securities Authorized for Issuance Under Equity Plans, is incorporated herein by reference to our 2025 Proxy Statement for our next Annual Meeting of Stockholders to be filed with the SEC no later than 120 days after August 29, 2025.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by Item 13 is incorporated herein by reference to our 2025 Proxy Statement for our next Annual Meeting of Stockholders to be filed with the SEC no later than 120 days after August 29, 2025.
Item 14. Principal Accountant Fees and Services
The information required by Item 14 is incorporated herein by reference to our 2025 Proxy Statement for our next Annual Meeting of Stockholders to be filed with the SEC no later than 120 days after August 29, 2025.
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PART IV
Item 15. Exhibits and Financial Statement Schedules
(a) The following documents are filed as part of this report:
1. Financial Statements. See “PART II – Item 8. Financial Statements and Supplementary Data.”
2. Financial Statement Schedules. Certain financial statement schedules have been omitted since they are either not required, not applicable or the information is otherwise included.
3. Exhibits. See “Index to Exhibits” below.
INDEX TO EXHIBITS
Incorporated by Reference
Exhibit
No.
Description Filed
Herewith
Form
File No.
Exhibit Filing
Date
2.1*
Share Purchase Agreement, dated as of June 28, 2022, by and among SMART Global Holdings, Inc., a Cayman Islands exempted company, Storm Private Holdings I Ltd., a Cayman Islands exempted company, and Storm Private Investments LP, a Cayman Islands exempted limited partnership
8-K 001-38102 2.1 08/29/2022
2.2*
Stock Purchase Agreement, dated as of June 13, 2023, by and among SMART Modular Technologies (LX) S.à r.l., a société à responsabilité limitée governed by the laws of Grand Duchy of Luxembourg, Lexar Europe B.V., a company organized under the laws of The Netherlands, Shenzhen Longsys Electronics Co., Ltd., a company limited by shares governed by the laws of the People’s Republic of China, solely with respect to certain provisions therein, Shanghai Intelligent Memory Semiconductor Co., Ltd., a limited liability company governed by the laws of the People’s Republic of China, and, solely with respect to certain provisions therein, SMART Global Holdings, Inc., a Cayman Islands exempted company
8-K 001-38102 2.1 06/13/2023
2.3*
Letter Agreement, dated as of October 24, 2023, to that certain Stock Purchase Agreement, dated as of June 13, 2023, by and among SMART Modular Technologies (LX) S.à r.l., a société à responsabilité limitée governed by the laws of Grand Duchy of Luxembourg, Lexar Europe B.V., a company organized under the laws of The Netherlands, Shenzhen Longsys Electronics Co., Ltd., a company limited by shares governed by the laws of the People’s Republic of China, solely with respect to certain provisions therein, Shanghai Intelligent Memory Semiconductor Co., Ltd., a limited liability company governed by the laws of the People’s Republic of China, and, solely with respect to certain provisions therein, SMART Global Holdings, Inc., a Cayman Islands exempted company
10-Q 001-38102 2.1 01/09/2024
3.1 Amended and Restated Certificate of Incorporation of Penguin Solutions, Inc., effective as of June 27, 2025
8-K12B
001-38102 3.1 06/30/2025
3.2 Amended and Restated Bylaws of Penguin Solutions, Inc., effective as of June 30 , 2025
8-K12B 001-38102 3.3 06/30/2025
3.3 C ertificate of Designation of Convertible Preferred Stock, effective as of June 2 7, 2025
8-K12B 001-38102 3.2 06/30/2025
4.1 Description of the Registrant’s Capital Stock
X
4.2 Form of Common Stock Certificate
S-8 POS 333-286347 4.1 06/30/2025
4.3 Indenture, dated February 11, 2020, between SMART Global Holdings, Inc. and U.S. Bank National Association, as Trustee
8-K 001-38102 4.1 02/11/2020
4.4 Form of 2.25% Convertible Senior Notes due 2026 (included as Exhibit A to the Indenture filed as Exhibit 4. 3 )
8-K 001-38102 4.1 02/11/2020
4.5 First Supplemental Indenture with respect to 2.25% Convertible Senior Notes due 2026, dated August 26, 2022, between SMART Global Holdings, Inc. and U.S. Bank Trust Company, National Association, as Trustee
8-K 001-38102 4.1 08/29/2022
124
4.6 Second Supplemental Indenture in respect of the 2026 Notes, dated as of June 30, 2025, by and among Penguin Solutions Delaware, Penguin Solutions Cayman and U.S. Bank Trust Company, National Association, a national banking association organized under the laws of the United States of America, as trustee
8-K12B 001-38102 4.1 06/30/2025
4.7 Indenture, dated as of January 23, 2023, between SMART Global Holdings, Inc. and U.S. Bank Trust Company, National Association, as Trustee
8-K 001-38102 4.1 01/23/2023
4.8 Form of certificate representing the 2.000% Convertible Senior Notes due 2029 (included as Exhibit A to the Indenture filed as Exhibit 4. 7 )
8-K 001-38102 4.2 01/23/2023
4.9 First Supplemental Indenture in respect of the 2029 Notes, dated as of June 30, 2025, by and among Penguin Solutions Delaware, Penguin Solutions Cayman and U.S. Bank Trust Company, National Association, a national banking association organized under the laws of the United States of America, as trustee
8-K12B 001-38102 4.2 06/30/2025
4.10 Indenture, dated as of August 6, 2024, between SMART Global Holdings, Inc. and U.S. Bank Trust Company, National Association, as Trustee
8-K 001-38102 4.1 08/06/2024
4.11 Form of certificate representing the 2.00% Convertible Senior Notes due 2030 (included as Exhibit A to the Indenture filed as Exhibit 4. 1 0 )
8-K 001-38102 4.1 08/06/2024
4.12 First Supplemental Indenture in respect of the 2030 Notes, dated as of June 30, 2025, by and among Penguin Solutions Delaware, Penguin Solutions Cayman and U.S. Bank Trust Company, National Association, a national banking association organized under the laws of the United States of America, as trustee
8-K12B 001-38102 4.3 06/30/2025
4.13 Amended and Restated Investor Agreement, dated as of June 30, 2025, by and between Penguin Solutions Delaware and Astra AI Infra LLC
8-K12B 001-38102 4.4 06/30/2025
10.1** Penguin Solutions , Inc. Amended and Restated 2017 Stock Incentive Plan
8-K12B
001-38102 10.3 06/30/2025
10.2** Form of Restricted Stock Unit Award Agreement (Stock-Settled) under the Penguin Solutions, Inc. Amended and Restated 2017 Stock Incentive Plan
S-8 POS
333-286347
99.4 06/30/2025
10.3** Form of Restricted Stock Unit Award Agreement (Cash-Settled) under the Penguin Solutions, Inc. Amended and Restated 2017 Stock Incentive Plan
S-8 POS 333-286347 99.5 06/30/2025
10.4**
Form of Performance Stock Unit Award Agreement under the Penguin Solutions, Inc. Amended and Restated 2017 Stock Incentive Plan
X
10.5**
Penguin Solutions, Inc. Amended and Restated 2021 Inducement Plan
8-K12B 001-38102 10.5 06/30/2025
10.6**
Form of Restricted Stock Unit Award Agreement (Stock-Settled) under the Penguin Solutions, Inc. Amended and Restated 2021 Inducement Plan
S-8 POS 333-286347 99.6 06/30/2025
10.7**
Form of Restricted Stock Unit Award Agreement (Cash-Settled) under the Penguin Solutions, Inc. Amended and Restated 2021 Inducement Plan
S-8 POS 333-286347 99.7 06/30/2025
10.8**
Form of Performance Stock Unit Award Agreement under the Penguin Solutions, Inc. Amended and Restated 2021 Inducement Plan
S-8 POS 333-286347 99.9 06/30/2025
10.9**
Penguin Solutions, Inc. Amended and Restated 2018 Employee Stock Purchase Plan
8-K12B 001-38102 10.4 06/30/2025
10.10**
Offer Letter by and between SMART Global Holdings, Inc. and Mark Adams, dated August 12, 2020
8-K 001-38102 10.1 08/13/2020
10.11**
Offer Letter by and between SMART Global Holdings, Inc. and Joseph Clark, dated September 6, 2022
10-Q 001-38102 10.1 04/09/2024
10.12**
Amended and Restated Offer Letter by and between Penguin Solutions, Inc. and Anne Kuykendall, effective as of September 25, 2023
10-Q 001-38102 10.1 04/02/2025
125
10.13**
Offer Letter by and between SMART Global Holdings, Inc. and Nathan Olmstead, dated June 18, 2024
10-Q 001-38102 10.2 07/09/2024
10.14**
Amended and Restated Employment Agreement between SMART Modular Technologies, Inc. and Jack Pacheco
10-Q 001-38102 10.2 03/22/2018
10.15**
Transition Agreement, effective as of April 10, 2025, by and between SMART Modular Technologies, Inc. and Jack Pacheco
10-Q
001-38102 10.18 07/08/2025
10.16**
Amended and Restated Offer Letter by and between SMART Global Holdings, Inc. and Peter Manca, dated May 23, 2024
10-K
001-38102 10.15 10/24/2024
10.17**
Separation Agreement by and between Penguin Solutions, Inc. and Peter Manca , effective as of August 10 , 2025
X
10.18 Form of Indemnification and Advancement Agreement for Directors and Officers
8-K12B 001-38102 10.1 06/30/2025
10.19**
Independent Director Compensation Policy
8-K12B
001-38102 10.2 06/30/2025
10.20 Form of Confirmation for the Base Capped Call Transactions
8-K 001-38102 99.1 02/11/2020
10.21 Form of Confirmation for the Additional Capped Call Transactions
8-K 001-38102 99.2 02/11/2020
10.22 Promissory Note, dated March 1, 2021, made by SMART Global Holdings, Inc. in favor of CreeLED, Inc.
8-K 001-38102 10.1 03/03/2021
10.23 Form of Earnout Note
8-K 001-38102 10.2 03/03/2021
10.24 Promissory Note, dated June 24, 2022, made by CreeLED, Inc. in favor of Wolfspeed, Inc.
8-K 001-38102 10.1 06/29/2022
10.25 Form of confirmation for the Capped Call Transactions
8-K 001-38102 10.1 01/23/2023
10.26 Securities Purchase Agreement, dated July 14, 2024, by and between SK Telecom Co., Ltd. and SMART Global Holdings, Inc.
8-K 001-38102 10.1 07/16/2024
10.27 Form of Confirmation for the Base Capped Call Transactions
8-K 001-38102 10.1 08/06/2024
10.28 Form of Confirmation for the Additional Capped Call Transactions
8-K 001-38102 10.1 08/14/2024
10.29***
Credit Agreement, dated as of June 24, 2025, by and among Penguin Solutions, Inc., SMART Modular Technologies, Inc., the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent, Collateral Agent and an Issuing Bank
8-K 001-38102 10.1 06/26/2025
19.1 Insider Trading and Confidentiality Policy of the Registrant
X
21.1 List of Subsidiaries of the Registrant
X
23.1 Consent of Independent Registered Public Accounting Firm
X
24.1 Power of Attorney (contained in the signature page to this Annual Report on Form 10-K)
X
31.1 Certification of Principal Executive Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
X
31.2 Certification of Principal Financial Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
X
32.1**** Certification of Principal Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
X
32.2**** Certification of Principal Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
X
97.1 Clawback Policy of the Registrant
X
101.INS Inline XBRL Instance Document – the instance document does not appear in the Interactive Data File because XBRL tags are embedded within the Inline XBRL document X
126
101.SCH Inline XBRL Taxonomy Extension Schema Document X
101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document X
101.DEF Inline XBRL Taxonomy Extension Definition Linkbase Document X
101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document X
101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document X
104 Cover Page Interactive Data File (embedded within the Inline XBRL document) X
* Portions of this exhibit have been excluded pursuant to Rule 601(b)(2)(ii) of Regulation S-K. The omitted information is both not material and is the type that the registrant treats as private or confidential.
** Constitutes a management contract or compensatory plan or arrangement.
***
Certain schedules and exhibits have been omitted from this filing pursuant to Item 601(a)(5) of Regulation S-K. The Registrant agrees to furnish supplementally a copy of any omitted attachment to the Securities and Exchange Commission on a confidential basis upon request.
**** The certifications attached as Exhibit 32.1 and Exhibit 32.2 that accompany this Annual Report are deemed furnished and not filed with the Securities and Exchange Commission and are not to be incorporated by reference into any filing of the Registrant under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date of this Annual Report, irrespective of any general incorporation language contained in such filing.
Item 16. Form 10-K Summary
Not applicable.
127
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Penguin Solutions, Inc.
Date: October 21, 2025
By: /s/ Mark Adams
Mark Adams
President and Chief Executive Officer
Date: October 21, 2025
By: /s/ Nate Olmstead
Nate Olmstead
Senior Vice President and Chief Financial Officer
POWER OF ATTORNEY AND SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Mark Adams, Nate Olmstead and Anne Kuykendall, and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all 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 SEC, granting unto said attorney-in-fact and agent 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 for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant in the capacities and on the dates indicated.
/s/ Mark Adams President, Chief Executive Officer and Director October 21, 2025
Mark Adams (Principal Executive Officer)
/s/ Nate Olmstead Senior Vice President and Chief Financial Officer October 21, 2025
Nate Olmstead (Principal Financial and Accounting Officer)
/s/ Penelope Herscher Chairperson of the Board of Directors October 21, 2025
Penelope Herscher
/s/ Min Yong Ha
Director October 21, 2025
Min Yong Ha
/s/ Bryan Ingram Director October 21, 2025
Bryan Ingram
/s/ Sandeep Nayyar Director October 21, 2025
Sandeep Nayyar
/s/ Mark Papermaster Director October 21, 2025
Mark Papermaster
/s/ Mary Puma Director October 21, 2025
Mary Puma
/s/ Maximiliane Straub Director October 21, 2025
Maximiliane Straub
128