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Item 9A. Controls and Procedures

2024-02-22 compared with 2023-02-23 · 85 added, 13 removed, 312 unchanged (24% of the section changed)

3 unchanged sentences

Based on such evaluation, our CEO and CFO have concluded that, as of December 31, 2023, our disclosure controls and procedures are effective in ensuring that (a) the information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms, and (b) such information is accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosure.

Changes in Internal Control Over Financial Reporting

There were no changes in our internal control over financial reporting identified in connection with the evaluation required by Rules 13a-15(d) or 15d-15(d) of the Exchange Act during the quarter ended December 31, 2022, that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Management's Annual Report on Internal Control Over Financial Reporting

5 unchanged sentences

Our management conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework).

Based on this evaluation, management concluded that our internal control over financial reporting was effective as of December 31, 2022 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.

Management reviewed the results of its assessment with our Audit Committee.

The effectiveness of our internal control over financial reporting as of December 31, 2022 has been audited by Ernst & Young LLP, an independent registered public accounting firm, as stated in its report which is included immediately following Item 9A.

Based on this evaluation, management concluded that our internal control over financial reporting was effective as of December 31, 2023.

The effectiveness of our internal control over financial reporting as of December 31, 2023 has been audited by Ernst & Young LLP, an independent registered public accounting firm, as stated in its attestation report which is included immediately following Item 9A.

Controls and Procedures , in this Annual Report on Form 10-K.

4 unchanged sentences

Further, no evaluation of controls can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud, if any, within Wayfair have been detected.

Changes in Internal Control Over Financial Reporting

There were no changes in our internal control over financial reporting identified in connection with the evaluation required by Rules 13a-15(d) or 15d-15(d) of the Exchange Act during the three months ended December 31, 2023 covered by this Annual Report on Form 10-K, that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Report of Independent Registered Public Accounting Firm

4 unchanged sentences

(the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2023, based on the COSO criteria.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of the Company as of December 31, 2022 and 2021, the related consolidated statements of operations, comprehensive (loss) income, stockholders’ deficit and cash flows for each of the three years in the period ended December 31, 2022, and the related notes and our report dated February 23, 2023 expressed an unqualified opinion thereon.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of the Company as of December 31, 2023 and 2022, the related consolidated statements of operations, comprehensive loss, stockholders’ deficit and cash flows for each of the three years in the period ended December 31, 2023, and the related notes and our report dated February 22, 2024 expressed an unqualified opinion thereon.

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.

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.

16 unchanged sentences

Other Information

Rule 10b5-1 Trading Plans

During the three months ended December 31, 2023, the following directors or officers informed us of the adoption, modification or termination of a “Rule 10b5-1 trading arrangement” or “non-Rule 10b5-1 trading arrangement,” as each term is defined in Item 408(c) of Regulation S-K, that is intended to satisfy the affirmative defense conditions of Rule 10b5-1(c):

Name & Title Action Date Rule 10b5-1 Plan Non-Rule 10b5-1 Plan Aggregate number/dollar value of securities to be purchased or sold (1)

Plan expiration date (2)

Thomas Netzer , Chief Operating Officer

Modification November, 30, 2023 X Up to 38,000 shares to be sold

Jon Blotner , Chief Commercial Officer

Adoption November, 30, 2023 X Up to $1,870,000 in value of shares to be sold

(1) The “Aggregate number/dollar value of securities to be sold” represents the gross number or value of shares to be sold during the duration of the plan, before excluding any shares sold pursuant to the Company’s mandatory policies to cover necessary tax withholding obligations in connection with the vesting of the securities.

(2) Except as indicated by footnote, each trading arrangement permitted or permits transactions through and including the earlier to occur of (a) the completion of all purchases or sales or (b) the date listed in the table.

Each trading arrangement marked as a “Rule 10b5-1 Plan” only permitted or only permits transactions upon expiration of the applicable mandatory cooling-off period under Rule 10b5-1(c), as amended.

Other than those disclosed above, none of our directors or officers adopted, modified or terminated, a “Rule 10b5-1 trading arrangement” or “non-Rule 10b5-1 trading arrangement” during the three months ended December 31, 2023.

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections

9 unchanged sentences

The information required by this item is incorporated by reference from our proxy statement for our 2024 annual meeting of stockholders, which we will file with the Securities and Exchange Commission within 120 days of December 31, 2023.

Principal Accounting Fees and Services

Principal Accountant Fees and Services

Exhibits and Financial Statement Schedules

Exhibit and Financial Statement Schedules

(a) The following documents are filed as part of this Annual Report on Form 10-K:

4 unchanged sentences

(3) Exhibits:

See the Exhibit Index immediately prior to the signature page of this Annual Report on Form 10-K, which is incorporated herein by reference.

See the Exhibit Index immediately prior to the signature page in this Annual Report on Form 10-K, which is incorporated herein by reference.

Form 10–K Summary

2 unchanged sentences

Incorporated by Reference

Number Exhibit Description Filed

Number Exhibit Description Filed or Furnished

Herewith Form File No.

26 unchanged sentences

4.11 Form of 3.25% Convertible Senior Notes due 2027 (included in Exhibit 4.10)

Indenture, dated as of May 12, 2023, by and between Wayfair Inc.

Bank Trust Company, National Association, as trustee.

8-K 001-36666 5/12/2023 4.1

Form of 3.50% Convertible Senior Notes due 2028 (included in Exhibit 4.13).

8-K 001-36666 5/12/2023

4.14 Description of Wayfair Securities

180 unchanged sentences

8-K 001-36666 9/14/2022 10.11

10.53+ Wayfair Inc.

2023 Incentive Award Plan

10-Q 001-36666 5/4/2023 10.1+

10.54+ Form of Restricted Stock Unit Agreement under the 2023 Incentive Award Plan (adopted fiscal 2023)

10-Q 001-36666 5/4/2023 10.2+

10.55 Purchase Agreement, dated May 9, 2023, by and among Wayfair Inc.

and Goldman Sachs & Co.

LLC and Citigroup Global Markets Inc., as representatives of the several Initial Purchasers.

8-K 001-36666 5/12/2023 10.1

10.56 Letter Agreement, dated May 9, 2023, between Goldman Sachs & Co.

LLC and Wayfair Inc.

regarding the Base Capped Call Transaction.

8-K 001-36666 5/12/2023 10.2

10.57 Letter Agreement, dated May 9, 2023, between Citibank, N.A.

and Wayfair Inc.

regarding the Base Capped Call Transaction.

8-K 001-36666 5/12/2023 10.3

10.58 Letter Agreement, dated May 9, 2023, between Barclays Bank PLC and Wayfair Inc.

regarding the Base Capped Call Transaction.

8-K 001-36666 5/12/2023 10.4

10.59 Letter Agreement, dated May 9, 2023, between Bank of Montreal and Wayfair Inc.

regarding the Base Capped Call Transaction.

8-K 001-36666 5/12/2023 10.5

10.60 Letter Agreement, dated May 9, 2023, between BNP Paribas and Wayfair Inc.

regarding the Base Capped Call Transaction.

8-K 001-36666 5/12/2023 10.6

10.61 Letter Agreement, dated May 9, 2023, between Morgan Stanley & Co.

LLC and Wayfair Inc.

regarding the Base Capped Call Transaction.

8-K 001-36666 5/12/2023 10.7

10.62 Letter Agreement, dated May 10, 2023, between Goldman Sachs & Co.

LLC and Wayfair Inc.