As filed with the Securities and Exchange
Commission on February 12, 2021
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_____________________
SMART GLOBAL HOLDINGS, INC.
(Exact Name of Registrant as Specified in
its Charter)
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Cayman Islands
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3674
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98-1013909
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(State or Other Jurisdiction of
Incorporation or Organization)
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(Primary Standard Industrial Classification Code Number)
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(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)
_____________________
SMART Global Holdings, Inc. 2021 Inducement
Plan
(Full Title of the Plan)
Bruce Goldberg
Vice President, Chief Legal Officer
and Chief Compliance Officer
SMART Global Holdings, Inc.
c/o 39870 Eureka Drive
Newark, CA 94560
(Name and address of agent for service)
(510) 623-1231
(Telephone Number, Including Area Code,
of Agents for Service)
_____________________
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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
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Bruce Goldberg
Vice President, Chief Legal
Officer and Chief Compliance Officer
SMART Global Holdings, Inc.
c/o 39870 Eureka Drive
Newark, CA 94560
Telephone: (510) 624-8159
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_____________________
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth 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.
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Large accelerated filer ☐
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Accelerated filer ☒
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Non-accelerated filer ☐ (Do not check if a smaller reporting company)
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Smaller reporting company ☐
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Emerging growth company ☐
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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
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Title of Securities to Be Registered
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Amount to Be Registered (1)
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Proposed Maximum Offering Price Per Share
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Proposed Maximum Aggregate Offering Price
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Amount of Registration
Fee (3)
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Ordinary shares, $0.03 par value per share – SMART Global Holdings, Inc. 2021 Inducement Plan
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2,000,000
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$
40.54 (2)
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$ 81,070,000
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$ 8,844.74
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Total
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$ 8,844.74
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(1)
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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”).
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(2)
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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 February 5, 2021.
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(3)
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Rounded up to the nearest cent.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified in Part I of
Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act and the introductory
note to Part I of the Form S-8 instructions. The documents containing the information specified in Part I will be delivered to
the participants in the Plan as required by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by SMART
Global Holdings, Inc. (the “Company”) with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Securities Act”) or the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) are incorporated herein by reference:
(a) The
Company’s Annual Report on Form 10-K for the fiscal year ended August 28, 2020, filed on October 22, 2020, which
contains audited financial statements for the most recent fiscal year for which such statements have been filed;
(b) The
Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended November 27, 2020, filed on January 5, 2021,
which contains unaudited interim financial statements;
(c) The
Company’s Current Reports on Form 8-K filed on September 3, 2020, October 2, 2020, October 14, 2020, October 19,
2020, December 29, 2020, January 7, 2021, January 22, 2021 and February 2, 2021; and
(d) The
description of the Company’s capital stock which is contained in the Company’s Exchange Act Registration Statement
on Form 8-A dated May 23, 2017, (Exchange Act File No. 001-38102) including any amendments or supplements thereto.
In addition, all documents subsequently
filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from
the date of the filing of such documents.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated
or deemed to be incorporated by reference herein), modifies or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As the Company is a Cayman Islands exempted
company, the laws of the Cayman Islands will be relevant to the provisions relating to indemnification of the Company’s directors
and officers. Although the Companies Law does not specifically restrict a Cayman Islands exempted company’s ability to indemnify
its directors or officers, it
does not expressly provide for such indemnification either.
Certain Commonwealth case law (which is likely to be persuasive in the Cayman Islands), however, indicates that the indemnification
is generally permissible, unless there had been actual fraud, willful default or reckless disregard on the part of the director
or officer in question.
The second amended and restated memorandum
and articles of association of the Company provide that each of our directors or officers shall be indemnified out of our assets
against any liability, including personal liability for breaches of fiduciary duty, action, proceeding, claim, demand, costs, damages
or expenses, including legal expenses, whatsoever which they or any of them may incur as a result of any act or failure to act
in carrying out their functions other than such liability (if any) that they may incur by reason of their own actual fraud or willful
default. No such person shall be liable to the Company for any loss or damage incurred by the Company as a result (whether direct
or indirect) of the carrying out of their functions unless that liability arises through the actual fraud or willful default of
such person.
The
Company has also entered into indemnification agreements with its directors and executive officers under which the Company has
agreed to indemnify each such person and hold him or her harmless against expenses, judgments, fines and amounts payable under
settlement agreements in connection with any threatened, pending or completed action, suit or proceeding to which he or she has
been made a party or in which he or she became involved by reason of the fact that he or she is or was the Company’s director
or officer. Except with respect to expenses to be reimbursed by the Company in the event that the indemnified person has been
successful on the merits or otherwise in defense of the action, suit or proceeding, our obligations under the indemnification
agreements are subject to certain customary restrictions and exceptions. These indemnification agreements are governed under Cayman
Islands law.
In addition, we maintain standard policies
of insurance under which coverage is provided to our directors and officers against loss rising from claims made by reason of breach
of duty or other wrongful act, and to us with respect to payments which may be made by us to such directors and officers pursuant
to the above indemnification provision or otherwise as a matter of law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
___________
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(1)
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Filed as Exhibit 99.1 to the Registrant’s Periodic
Report on Form 8-K furnished on January 22, 2021 and incorporated herein by reference.
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SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant, 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 12th day of February, 2021.
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SMART Global Holdings, Inc.
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By:
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/s/ Jack Pacheco
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Name:
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Jack Pacheco
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Title:
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Executive Vice President and Chief Financial Officer
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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, Jack Pacheco and Bruce Goldberg 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:
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Signature
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Title
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Date
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/s/ Mark
Adams
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Chief Executive Officer (Principal Executive Officer and Director)
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2/12/2021
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Mark Adams
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/s/ Jack
Pacheco
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Chief Financial Officer (Principal Financial and Accounting Officer)
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2/12/2021
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Jack Pacheco
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/s/ Ajay
Shah
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Executive Chairman of the
Board of Directors
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2/12/2021
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Ajay Shah
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/s/ Randy
Furr
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Director
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2/12/2021
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Randy Furr
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/s/ Kenneth
Hao
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Director
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2/12/2021
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Kenneth Hao
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/s/ Bryan Ingram
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Director
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2/12/2021
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Bryan Ingram
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/s/ Sandeep
Nayyar
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Director
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2/12/2021
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Sandeep Nayyar
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/s/ Mukesh
Patel
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Director
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2/12/2021
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Mukesh Patel
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/s/ Maximiliane
Straub
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Director
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2/12/2021
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Maximiliane Straub
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/s/ Jason
White
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Director
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2/12/2021
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Jason White
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Exhibit 5.1
Our ref SUS/693334-000001/65525995v2
SMART Global Holdings, Inc.
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands
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12 February 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 2,000,000 ordinary shares of the
Company (the "Shares") to be issued under the Company's 2021 Inducement Plan (the "Inducement Plan").
We have reviewed originals, copies, drafts
or conformed copies of the following documents, and such other documents as we deem necessary:
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1.1
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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").
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1.2
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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") and the written resolutions
of the board of directors of the Company dated 19 January 2021 (the "Resolutions") and the corporate records of
the Company maintained at its registered office in the Cayman Islands.
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1.3
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A Certificate of Good Standing dated 10 February 2021 issued by the Registrar of Companies in the
Cayman Islands (the "Certificate of Good Standing").
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1.4
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A certificate from a director of the Company a copy of which is attached to this opinion letter
(the "Director's Certificate").
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1.6
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The Registration Statement.
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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:
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2.1
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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).
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2.2
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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).
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2.3
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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.
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2.4
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All signatures, initials and seals are genuine.
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2.5
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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.
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2.6
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There is nothing under any law (other than the law of the Cayman Islands) which would or might
affect the opinions hereinafter appearing.
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2.7
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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.
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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.
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
(shareholders), will be validly issued and
(assuming that all of the Consideration is received by the Company) will be fully paid and non-assessable.
The opinions expressed above are subject
to the following qualification:
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4.1
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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).
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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
SMART Global Holdings, Inc.
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands
11 February 2021
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands
Dear Sirs
SMART Global Holdings, Inc. (the
"Company")
I, being a director of the Company, am aware
that you are being asked to provide a legal opinion (the "Opinion") in relation to certain aspects of Cayman Islands
law. Capitalised terms used in this certificate have the meaning given to them in the Opinion. I hereby certify that:
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1
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The Memorandum and Articles remain in full force and effect and are unamended.
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2
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The Resolutions were duly passed in the manner prescribed in the Memorandum and Articles (including,
without limitation, with respect to the disclosure of interests (if any) by directors of the Company) and have not been amended,
varied or revoked in any respect.
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3
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The authorised share capital of the Company is US$6,900,000 divided into 200,000,000 Ordinary Shares
of a nominal or par value of US$0.03 each and 30,000,000 Preferred Shares of a nominal or par value of US$0.03 each.
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4
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The shareholders of the Company (the "Shareholders") have not restricted the powers
of the directors of the Company in any way. There is no contractual or other prohibition (other than as arising under Cayman Islands
law) binding on the Company prohibiting it from entering into and performing its obligations under the Inducement Plan.
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5
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The directors of the Company at the date of the 2017 Meeting were as follows: Kenneth Y. Hao, James
A. Davidson, Iain MacKenzie, Paul Mercadante, Ajay Bhupendra Shah, Jason White, Mukesh Patel, Sandeep Nayyar, and Randy Furr.
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6
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The directors of the Company at the date of the 2018 Meeting were as follows: Kenneth Y. Hao, Iain
MacKenzie, Paul Mercadante, Ajay Bhupendra Shah, Jason White, Mukesh Patel, Sandeep Nayyar, Randy Furr and Bryan Ingram.
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7
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The directors of the Company at the date of the Resolutions were as follows: Kenneth Y. Hao,
Ajay Bhupendra Shah, Jason White, Mukesh Patel, Sandeep Nayyar, Randy Furr, Mark Adams, Maximiliane Straub and Bryan
Ingram.
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8
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The directors of the Company as at the date of this certificate are as follows: Kenneth Y. Hao,
Ajay Bhupendra Shah, Jason White, Mukesh Patel, Sandeep Nayyar, Randy Furr, Bryan Ingram, Maximiliane Straub and Mark Adams.
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9
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The minute book and corporate records of the Company as maintained at its registered office in
the Cayman Islands and made available to you are complete and accurate in all material respects, and all minutes and resolutions
filed therein represent a complete and accurate record of all meetings of the shareholders and directors (or any committee thereof)
of the Company (duly convened in accordance with the Memorandum and Articles) and all resolutions passed at the meetings or passed
by written resolution or consent, as the case may be.
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10
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Prior to, at the time of, and immediately following the implementation of the Inducement
Plan the Company was, or will be, able to pay its debts as they fell, or fall, due and has entered, or will enter, into
the Inducement Plan for proper value and not with an intention to defraud or hinder its creditors or by way of fraudulent preference.
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11
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To the best of my knowledge and belief, having made due inquiry, each director considers the transactions
contemplated by the Inducement Plan to be of commercial benefit to the Company and has acted bona fide in the best interests of
the Company, and for a proper purpose of the Company, in relation to the transactions which are the subject of the Opinion.
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12
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To the best of my knowledge and belief, having made due inquiry, the Company is not the subject
of any bankruptcy, reconstruction, or other insolvency proceedings or any other material legal, arbitral, administrative or other
proceedings in any jurisdiction. Nor have the directors or shareholders taken any steps to have the Company struck off or placed
in liquidation, nor have any steps been taken to wind up the Company. Nor has any receiver been appointed over any of the Company's
property or assets.
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I confirm that you may continue to rely
on this certificate as being true and correct on the day that you issue the Opinion unless I shall have previously notified you
personally to the contrary.
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Signature:
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/s/ Mark Adams
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Name:
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Mark Adams
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Title:
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Director
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