Form S-8 SMART Global Holdings,
As filed with the Securities and Exchange Commission on July 6, 2021
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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SMART GLOBAL HOLDINGS, INC.
(Exact Name of Registrant as Specified in its Charter)
| Cayman Islands | 3674 | 98-1013909 |
| (State or Other Jurisdiction of Incorporation or Organization) |
(Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification No.) |
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c/o Maples Corporate Services Limited P.O. Box 309 Ugland House Grand Cayman KY1-1104 Cayman Islands |
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| (Address of Principal Executive Offices) | ||
| _____________________ | ||
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SMART Global Holdings, Inc. Amended and Restated 2017 Share Incentive Plan (Full Title of the Plan)
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Anne Kuykendall Vice President, General Counsel, and Chief Compliance Officer SMART Global Holdings, Inc. c/o 39870 Eureka Drive Newark, CA 94560 |
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(Name and address of agent for service)
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| (510) 623-1231 | ||
| (Telephone Number, Including Area Code, of Agents for Service) | ||
_____________________
| With copies to: | ||
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Alan F. Denenberg Davis Polk & Wardwell LLP 1600 El Camino Real Menlo Park, CA 94025 Telephone: (650) 752-2004 Facsimile: (650) 752-3604 |
Anne Kuykendall Vice President, General Counsel, and Chief Compliance Officer SMART Global Holdings, Inc. c/o 39870 Eureka Drive Newark, CA 94560 Telephone: (510) 624-8159 | |
_____________________
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ☐ | Accelerated filer ☒ |
| Non-accelerated filer ☐ (Do not check if a smaller reporting company) | Smaller reporting company ☐ |
| Emerging growth company ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities to Be Registered | Amount to Be Registered (1) | Proposed Maximum Offering Price Per Share (2) | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee (3) | |
| Ordinary shares, $0.03 par value per share, to be issued under the SMART Global Holdings, Inc. Amended and Restated 2017 Share Incentive Plan | 1,148,351 | $47.18 | $54,179,200.18 |
$5,910.96 | |
| Total | |||||
| (1) | In the event of a stock split, stock dividend or similar transaction involving the Registrant’s ordinary shares, $0.03 par value per share, the number of shares registered hereby shall automatically be adjusted in accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”). | ||||
| (2) | Estimated in accordance with Rules 457(c) and (h) solely for the purpose of calculating the registration fee on the basis of the average of the high and low prices of the Registrant’s ordinary shares on June 28, 2021. | ||||
| (3) | Rounded up to the nearest cent. | ||||
REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E
Pursuant to General Instruction E of Form S-8, SMART Global Holdings, Inc. (the “Company”) is filing this Registration Statement with the Securities and Exchange Commission (the “Commission”) to register an aggregate of 1,149,609 additional ordinary shares of the Company, $0.03 par value per share (the “Shares”). The Company is filing this Registration Statement to register (i) 1,000,000 Shares with respect to which awards may be granted under the Company’s Amended and Restated 2017 Share Incentive Plan (the “2017 Plan”), pursuant to the amendment to the 2017 Plan adopted by the Board of Directors of the Company and approved by the shareholders of the Company on February 12, 2021, which is attached as Exhibit 99.3 hereto (the “Amendment”); and (ii) 148,351 Shares previously covered by awards under the 2017 Plan that subsequently became available for new awards pursuant to Section 4(a) of the 2017 Plan. This Registration Statement hereby incorporates by reference the contents of the Company’s registration statements on Form S-8 filed with the Commission on June 8, 2017 (Registration No. 333-218605), November 13, 2017 (Registration No. 333-221534), March 23, 2018 (Registration No. 333-223880), September 20, 2018 (Registration No. 333-227449), March 28, 2019 (Registration No. 333-230578), November 6, 2019 (Registration No. 333-234541) and October 22, 2020 (Registration No. 333-249619).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
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| * | Filed herewith. |
| (1) | Filed as Exhibit 10.23 to the Registrant’s Amendment No. 2 to Registration Statement on Form S-1, filed on May 22, 2017 and incorporated herein by reference. |
| (2) | Filed as Exhibit A to the Registrant’s Definitive Proxy Statement on Schedule 14A, filed on December 14, 2018, and incorporated herein by reference. |
| (3) | Filed as Exhibit A to the Registrant’s Definitive Proxy Statement on Schedule 14A, filed on December 21, 2020, and incorporated herein by reference. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Company, SMART Global Holdings, Inc., certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Newark, State of California, on the sixth day of July, 2021.
| SMART Global Holdings, Inc. | |||
| By: | /s/ Anne Kuykendall | ||
| Name: | Anne Kuykendall | ||
| Title: | Vice President, General Counsel, and Chief Compliance Officer | ||
POWER OF ATTORNEY AND SIGNATURES
Know all persons by these presents, that each person whose signature appears below, constitutes and appoints each of Mark Adams, Ken Rizvi and Anne Kuykendall as his or her true and lawful attorney-in-fact and agent, upon the action of such appointee, with full power of substitution and resubstitution, to do any and all acts and things and execute, in the name of the undersigned, any and all instruments which each of said attorneys-in-fact and agents may deem necessary or advisable in order to enable SMART Global Holdings, Inc. to comply with the Securities Act, and any requirements of the Commission in respect thereof, in connection with the filing with the Commission of this Registration Statement under the Securities Act, including specifically but without limitation, power and authority to sign the name of the undersigned to such Registration Statement, and any amendments to such Registration Statement (including post-effective amendments), and to file the same with all exhibits thereto and other documents in connection therewith, with the Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with applicable state securities laws, and to file the same, together with other documents in connection therewith with the appropriate state securities authorities, granting unto each of said attorneys-in-fact and agents full power and authority to do and to perform each and every act and thing requisite or necessary to be done in and about the premises, as fully and to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
| Signature | Title | Date |
| /s/ Mark Adams | Chief Executive Officer (Principal Executive Officer and Director) | July 6, 2021 |
| Mark Adams | ||
| /s/ Ken Rizvi | Chief Financial Officer (Principal Financial and Accounting Officer) | July 6, 2021 |
| Ken Rizvi | ||
| /s/ Ajay Shah | Chairman of the Board of Directors |
July 6, 2021 |
| Ajay Shah | ||
| /s/ Randy Furr | Director | July 6, 2021 |
| Randy Furr | ||
| /s/ Bryan Ingram | Director | July 6, 2021 |
| Bryan Ingram | ||
| /s/ Sandeep Nayyar | Director | July 6, 2021 |
| Sandeep Nayyar | ||
| /s/ Mukesh Patel | Director | July 6, 2021 |
| Mukesh Patel | ||
| /s/ Maximiliane Straub | Director | July 6, 2021 |
| Maximiliane Straub | ||
| /s/ Jason White | Director | July 6, 2021 |
| Jason White | ||
Exhibit 5.1
Our ref SUS/693334-000001/67113534v1
| SMART Global Holdings, Inc. PO Box 309, Ugland House Grand Cayman KY1-1104 Cayman Islands |
6 July 2021
Dear Sirs
SMART Global Holdings, Inc.
We have acted as Cayman Islands counsel to SMART Global Holdings, Inc. (the "Company") in connection with the Company's registration statement on Form S-8, including all amendments or supplements thereto (the "Form S-8"), filed with the United States Securities and Exchange Commission (the "Commission") under the United States Securities Act of 1933 (the "Act"), as amended (the "Registration Statement") relating to the registration of the 1,148,351 ordinary shares of the Company (the "Shares") to be issued under the Company's Amended and Restated 2017 Share Incentive Plan (as amended, the "Inducement Plan").
| 1 | Documents Reviewed |
We have reviewed originals, copies, drafts or conformed copies of the following documents, and such other documents as we deem necessary:
| 1.1 | The Certificate of Incorporation dated 21 April 2011, the Certificate of Incorporation on Change of Name dated 29 August 2014, the Second Amended and Restated Memorandum and Articles of Association of the Company as adopted by Special Resolution passed on 30 March 2020 (the "Memorandum and Articles"). |
| 1.2 | The minutes (the "2017 Minutes") of the meeting of the board of directors of the Company held on 30 November 2017 (the "2017 Meeting"), the minutes (the "2018 Minutes") of the meeting of the board of directors of the Company held on 2 October 2018 (the "2018 Meeting"), the written resolutions of the board of directors of the Company dated 20 December 2020 (the "Resolutions") and the corporate records of the Company maintained at its registered office in the Cayman Islands. |
| 1.3 | A Certificate of Good Standing dated 30 June 2021 issued by the Registrar of Companies in the Cayman Islands (the "Certificate of Good Standing"). |
| 1.4 | A certificate from a director of the Company a copy of which is attached to this opinion letter (the "Director's Certificate"). |
| 1.5 | The Inducement Plan. |
| 1.6 | The Registration Statement. |
| 2 | Assumptions |
The following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion letter. In giving the following opinions, we have relied (without further verification) upon the completeness and accuracy of the Director's Certificate and the Certificate of Good Standing. We have also relied upon the following assumptions, which we have not independently verified:
| 2.1 | The Inducement Plan has been authorised and duly executed and unconditionally delivered by or on behalf of the Company in accordance with all relevant laws (other than the laws of the Cayman Islands). |
| 2.2 | The Inducement Plan is legal, valid, binding and enforceable against all relevant parties in accordance with its terms under all other relevant laws (other than, with respect to the Company, the laws of the Cayman Islands). |
| 2.3 | Copy documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals. |
| 2.4 | All signatures, initials and seals are genuine. |
| 2.5 | The power, authority and legal right of the Company under all relevant laws and regulations (other than the laws of the Cayman Islands) to enter into, execute, unconditionally deliver and perform its obligations under the Inducement Plan. Specifically, we have made no independent investigation of the laws of the State of California. |
| 2.6 | There is nothing under any law (other than the law of the Cayman Islands) which would or might affect the opinions hereinafter appearing. |
| 2.7 | The Company has received, or will receive, money or money's worth (the "Consideration") in consideration for the issue of the Shares, and none of the Shares have, or will be, issued for less than par value. |
Save as aforesaid we have not been instructed to undertake and have not undertaken any further enquiry or due diligence in relation to the transaction the subject of this opinion.
| 3 | Opinions |
Based upon, and subject to, the foregoing assumptions and the qualification set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that the Shares to be offered and issued by the Company pursuant to the provisions of the Inducement Plan, have been duly and validly authorised for issue, and when issued by the Company pursuant to the provisions of the Inducement Plan for the consideration fixed thereto and duly registered in the Company's register of members
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(shareholders), will be validly issued and (assuming that all of the Consideration is received by the Company) will be fully paid and non-assessable.
| 4 | Qualifications |
The opinions expressed above are subject to the following qualification:
| 4.1 | Under the Companies Act (As Revised) of the Cayman Islands (the "Companies Act"), the register of members of a Cayman Islands company is by statute regarded as prima facie evidence of any matters which the Companies Act directs or authorises to be inserted therein. A third party interest in the shares in question would not appear. An entry in the register of members may yield to a court order for rectification (for example, in the event of fraud or manifest error). |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In providing our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder.
This opinion is addressed to you and may be relied upon by you and your counsel. This opinion is limited to the matters detailed herein and is not to be read as an opinion with respect to any other matter.
Yours faithfully
Maples and Calder (Cayman) LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated October 22, 2020, relating to the financial statements of SMART Global Holdings, Inc. and subsidiaries (the “Company”) and the effectiveness of the Company’s internal control over financial reporting dated October 22, 2020, (April 6, 2021 as to the effects of the material weakness described in Management’s Report on Internal Control Over Financial Reporting (Revised)), appearing in the Annual Report on Form 10-K/A of the Company for the year ended August 28, 2020.
/s/ DELOITTE & TOUCHE LLP
San Jose, California
July 6, 2021