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 the design and operation 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 25, 2023 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.
On August 29, 2022, we completed the acquisition of Status Technologies. For further discussion of this acquisition, see “Item 8. Financial Statements and Supplementary Data – Notes to Consolidated Financial Statements – Business Acquisitions – Stratus Technologies.” The SEC permits companies to exclude acquisitions from their assessment of internal control over financial reporting during the first year of an acquisition, and our management has elected to exclude Stratus Technologies from its assessment as of August 25, 2023. Stratus Technologies (excluding acquired intangible assets and goodwill) constituted 12% and 11% of our consolidated total assets and consolidated net sales, respectively, as of and for the year ended August 25, 2023.
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 25, 2023 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 25, 2023 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 2023, there were no changes in our internal control over financial reporting 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 Shareholders and the Board of Directors of SMART Global Holdings, Inc.
Opinion on Internal Control over Financial Reporting
We have audited the internal control over financial reporting of SMART Global Holdings, Inc. and subsidiaries (the “Company”) as of August 25, 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, the Company maintained, in all material respects, effective internal control over financial reporting as of August 25, 2023, 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 25, 2023, of the Company and our report dated October 20, 2023, expressed an unqualified opinion on those financial statements.
As described in Management’s Report on Internal Control Over Financial Reporting, management excluded from its assessment the internal control over financial reporting at Stratus Technologies, which was acquired on August 29, 2022, and whose financial statements constitute approximately 12% of consolidated total assets (excluding acquired intangible assets and goodwill) and 11% of consolidated net sales of the consolidated financial statement amounts as of and for the year ended August 25, 2023. Accordingly, our audit did not include the internal control over financial reporting at Stratus Technologies.
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 20, 2023
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Item 9B. Other Information
(a) None.
(b) During the fiscal quarter ended August 25, 2023, no director or officer of the Company 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).
On April 5, 2022, we announced that our Board of Directors approved a $75 million share repurchase authorization, under which we may repurchase our outstanding ordinary shares from time to time through open market purchases, privately-negotiated transactions or otherwise. The share repurchase authorization has no expiration date but may be suspended or terminated by our Board of Directors at any time. As of August 25, 2023, the remaining dollar value of shares that may be repurchased under this authorization was $16.6 million. Pursuant to the share repurchase authorization, on October 18, 2023 , we adopted a Rule 10b5-1 trading arrangement for the repurchase of up to $ 16 million of our ordinary shares until January 5, 2024, subject to certain price limits and other terms. There is no assurance that any repurchases pursuant to the Rule 10b5-1 trading arrangement will occur.
Item 9C. Disclosure Regarding Foreign Jurisdictions That Prevent Inspections
Not applicable.
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PART III
Item 10. Directors, Executive Officers and Corporate Governance
The information required by Item 10 is incorporated herein by reference to our 2023 Proxy Statement for our next Annual General Meeting of Shareholders to be filed with the SEC no later than 120 days after August 25, 2023.
We have adopted a Code of Business Conduct and Ethics that applies to our officers, directors and employees, which is available on our website (http://www.sghcorp.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 (http://www.sghcorp.com) (1) the nature of 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 2023 Proxy Statement for our next Annual General Meeting of Shareholders to be filed with the SEC no later than 120 days after August 25, 2023.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by Item 12 is incorporated herein by reference to our 2023 Proxy Statement for our next Annual General Meeting of Shareholders to be filed with the SEC no later than 120 days after August 25, 2023.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by Item 13 is incorporated herein by reference to our 2023 Proxy Statement for our next Annual General Meeting of Shareholders to be filed with the SEC no later than 120 days after August 25, 2023.
Item 14. Principal Accountant Fees and Services
The information required by Item 14 is incorporated herein by reference to our 2023 Proxy Statement for our next Annual General Meeting of Shareholders to be filed with the SEC no later than 120 days after August 25, 2023.
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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 Agreement and Plan of Merger, dated as of June 8, 2018, by and among SMART Global Holdings, Inc., Glacier Acquisition Sub, Inc., Penguin Computing, Inc. and Fortis Advisors LLC
8-K 001-38102 2.01 06/11/2018
2.2 Stock Purchase Agreement, dated as of July 8, 2019, by and among Artesyn Embedded Computing, Inc., Pontus Intermediate Holdings II, LLC, Pontus Holdings, LLC and SMART Global Holdings, Inc.
8-K 001-38102 2.1 07/12/2019
2.3** Asset Purchase Agreement, dated as of October 18, 2020, between Cree, Inc., SMART Global Holdings, Inc. and CreeLED, Inc.
8-K 001-38102 2.1 03/03/2021
2.4** Amendment to Asset Purchase Agreement dated March 1, 2021, between Cree, Inc., SMART Global Holdings, Inc. and CreeLED, Inc.
8-K 001-38102 2.2 03/03/2021
2.5** 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
2.6*** 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
3.1 Second Amended and Restated Memorandum and Articles of Association of SMART Global Holdings, Inc.
10-Q 001-38102 3.1 04/07/2020
4.1 Description of the Registrant’s Securities Registered Pursuant to Section 12 of the Exchange Act of 1934
10-K 001-38102 4.1 10/25/2021
4.2 Indenture, dated February 11, 2020, between SMART Global Holdings, Inc. and U.S. Bank National Association
8-K 001-38102 4.1 02/11/2020
4.3 Form of 2.25% Convertible Senior Notes due 2026
8-K 001-38102 4.2 02/11/2020
4.4 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 National Association, as trustee.
8-K 001-38102 4.1 08/29/2022
4.5 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
4.6 Form of certificate representing the 2.000% Convertible Senior Notes due 2029 (included as Exhibit A to Exhibit 4.1).
8-K 001-38102 4.2 01/23/2023
10.1* SMART Global Holdings, Inc. Amended and Restated 2017 Share Incentive Plan.
10-Q 001-38102 10.1 06/29/2017
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10.2* Amendment to the SMART Global Holdings, Inc. Amended and Restated 2017 Share Incentive Plan
DEF
14A 001-38102 Exhibit A 12/14/2018
10.3* Amendment to the SMART Global Holdings, Inc. Amended and Restated 2017 Share Incentive Plan
DEF
14A 001-38102 Exhibit A 12/21/2020
10.4* SMART Global Holdings, Inc. 2021 Inducement Plan (effective as of February 15, 2021)
8-K 001-38102 99.1 01/22/2021
10.5* Form of Restricted Share Unit Award Agreement Under the SMART Global Holdings, Inc. 2021 Inducement Plan.
10-Q 001-38102 10.5 04/06/2021
10.6* SMART Global Holdings, Inc. 2018 Employee Share Purchase Plan
S-8 333-249619 99.3 10/22/2020
10.7* 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
10.8* Amended and Restated Employment Agreement between SMART Modular Technologies, Inc. and Jack Pacheco.
10-Q 001-38102 10.2 03/22/2018
10.9* Offer Letter by and between SMART Global Holdings, Inc. and Ken Rizvi, dated January 31, 2021
8-K 001-38102 10.1 02/02/2021
10.10* Form of Indemnification Agreement entered into with each of the Registrant’s officers and directors
S-1/A 333-217539 10.1 05/11/2017
10.11* Amended and Restated Offer Letter by and between SMART Global Holdings, Inc. and David Laurello, dated June 27, 202 3
X
10.12* Transition and Separation Agreement by and among SMART Global Holdings, Inc., SMART Modular Technologies, Inc. and Thierry Pellegrino, dated July 18, 2023
X
10.13* Independent Director Compensation Policy
X
10.14 Third Amended and Restated Credit Agreement, dated as of March 6, 2020, among SMART Worldwide Holdings, Inc., SMART Modular Technologies (Global), Inc., SMART Modular Technologies, Inc., the lender parties thereto and Barclays Bank, PLC, as Administrative Agent and as Collateral Agent.
8-K 001-38102 10.1 03/11/2020
10.15 Master Guarantee Agreement, dated as of August 26, 2011, among SMART Modular Technologies (Global Memory Holdings), Inc., SMART Modular Technologies (Global), Inc., SMART Modular Technologies, Inc., the subsidiary guarantors identified therein and JPMorgan Chase Bank, N.A. as Administrative Agent
S-1 333-217539 10.11 04/28/2017
10.16 Collateral Agreement, dated as of August 26, 2011, among SMART Modular Technologies, Inc., the other grantors party thereto and JPMorgan Chase Bank, N.A. as Administrative Agent
S-1 333-217539 10.12 04/28/2017
10.17 Form of Confirmation for the Base Capped Call Transactions
8-K 001-38102 99.1 02/11/2020
10.18 Form of Confirmation for the Additional Capped Call Transactions
8-K 001-38102 99.2 02/11/2020
10.19 Loan, Guaranty and Security Agreement, dated as of December 23, 2020, among SMART Modular Technologies, Inc., SMART Embedded Computing, Inc., and Penguin Computing, Inc., as borrowers, SMART Modular Technologies (DE), Inc., SMART High Reliability Solutions, Inc., Premiere Customs Brokers, Inc., Premiere Logistics, Inc., and SMART Wireless Computing, Inc., as Guarantors, and the financial institutions party thereto from time to time as Lenders, and Bank of America, N.A. as the agent for the lenders.
8-K 001-38102 10.1 12/29/2020
10.20 Promissory Note, dated March 1, 2021, made by SMART Global Holdings, Inc. in favor of Cree LED , Inc.
8-K 001-38102 10.1 03/03/2021
10.21 Form of Earnout Note
8-K 001-38102 10.2 03/03/2021
10.22 Credit Agreement, dated as of February 7, 2022, by and among SMART Global Holdings, Inc., SMART Modular Technologies, Inc., the lenders party thereto and Citizens Bank, N.A., as Administrative Agent, Collateral Agent and an Issuing Bank.
8-K 001-38102 10.1 02/08/2022
10.23 Promissory Note, dated June 24, 2022, made by CreeLED, Inc. in favor of Wolfspeed, Inc.
8-K 001-38102 10.1 06/29/2022
107
10.24*** First Amendment to Credit Agreement, dated as of August 29, 2022, by and among SMART Global Holdings, Inc. , SMART Modular Technologies, Inc., the lenders party thereto and Citizens Bank, N.A., as administrative agent, and acknowledged and agreed to by the subsidiary loan parties party thereto.
8-K 001-38102 10.1 08/29/2022
10.25 Form of confirmation for the Capped Call Transactions.
8-K 001-38102 10.1 08/29/2022
21.1 List of Subsidiaries of 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
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
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
* Constitutes a management contract or compensatory plan or arrangement.
** Portions of this exhibit have been omitted pursuant to Rule 601(b)(2) of Regulation S-K. The omitted information is not material and would likely cause competitive harm to the registrant if publicly disclosed.
*** The schedules and exhibits to the Incremental Amendment have been omitted from this filing pursuant to Item 601(b)(10)(iv) of Regulation S-K. Registrant will furnish copies of such exhibits and schedules to the Securities and Exchange Commission 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.
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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.
SMART Global Holdings, Inc.
Date: October 20, 2023
By: /s/ Mark Adams
Mark Adams
President and Chief Executive Officer
Date: October 20, 2023
By: /s/ Ken Rizvi
Ken Rizvi
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, Ken Rizvi 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 20, 2023
Mark Adams (Principal Executive Officer)
/s/ Ken Rizvi Senior Vice President and Chief Financial Officer October 20, 2023
Ken Rizvi (Principal Financial and Accounting Officer)
/s/ Penelope Herscher Chairperson of the Board of Directors October 20, 2023
Penelope Herscher
/s/ Randy Furr Director October 20, 2023
Randy Furr
/s/ Bryan Ingram Director October 20, 2023
Bryan Ingram
/s/ Sandeep Nayyar Director October 20, 2023
Sandeep Nayyar
/s/ Mark Papermaster Director October 20, 2023
Mark Papermaster
/s/ Mary Puma Director October 20, 2023
Mary Puma
/s/ Maximiliane Straub Director October 20, 2023
Maximiliane Straub
109