What changed in this filing

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Item 9A. Controls and Procedures

2024-10-24 compared with 2023-10-20 · 59 added, 46 removed, 176 unchanged (37% of the section changed)

1 unchanged sentence

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.

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 30, 2024 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.

1 unchanged sentence

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.

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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.

During the fourth quarter of fiscal year 2024, 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.

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Shareholders and the Board of Directors of SMART Global Holdings, Inc.

To the Shareholders 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 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).

We have audited the internal control over financial reporting of Penguin Solutions, Inc.

(formerly SMART Global Holdings, Inc.) and subsidiaries (the “Company”) as of August 30, 2024, 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 30, 2024, 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 30, 2024, of the Company and our report dated October 24, 2024, 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

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Other Information

(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.

On August 15, 2024 , Mark Adams , our President and Chief Executive Officer , adopted a Rule 10b5-1 trading arrangement (the “Adams 10b5-1 Plan”) that is intended to satisfy the affirmative defense of Rule 10b5-1(c) under the Exchange Act.

The Adams 10b5-1 Plan provides for the sale of up to 100,000 ordinary shares, subject to pre-established limit prices and daily volume limitations, commencing on February 1, 2025 and continuing until all shares are sold or until August 1, 2025 , whichever occurs first.

On August 15, 2024 , Joseph Clark , our President of Optimized LED, adopted a Rule 10b5-1 trading arrangement (the “Clark 10b5-1 Plan”) that is intended to satisfy the affirmative defense of Rule 10b5-1(c) under the Exchange Act.

The Clark 10b5-1 Plan provides for the sale of up to (i) 15,000 ordinary shares, plus (ii) 50% of the net ordinary shares which may be acquired by Mr.

Clark upon the future vesting of 24,248 restricted share units (net of ordinary shares surrendered to Penguin Solutions to satisfy tax withholding obligations in connection with vesting), each subject to pre-established limit prices, commencing on November 14, 2024 and continuing until all shares are sold or until July 15, 2025 , whichever occurs first.

During the fiscal quarter ended August 30, 2024 , no other 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).

Disclosure Regarding Foreign Jurisdictions That Prevent Inspections

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The information required by Item 10 is incorporated herein by reference to our 2024 Proxy Statement for our next Annual General Meeting of Shareholders to be filed with the SEC no later than 120 days after August 30, 2024.

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.

We have adopted a Code of Business Conduct and Ethics that applies to our officers, directors and employees, which 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) 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.

Executive Compensation

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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.

2.3* Asset Purchase Agreement, dated as of October 18, 2020, by and among Chili Acquisition , Inc., SMART Global Holdings, Inc.

and Cree , Inc.

8-K 001-38102 2.1 03/03/2021

6 unchanged sentences

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.

2.7* 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 Third Amended and Restated Memorandum and Articles of Association of Penguin Solutions , Inc.

001-38102 3.1 10/15/2024

4.1 Description of the Registrant’s Securities Registered Pursuant to Section 12 of the Exchange Act of 1934

1 unchanged sentence

4.2 Indenture, dated February 11, 2020, between SMART Global Holdings, Inc.

Bank National Association

Bank National Association, as Trustee

8-K 001-38102 4.1 02/11/2020

4.3 Form of 2.25% Convertible Senior Notes due 2026

4.3 Form of 2.25% Convertible Senior Notes due 2026 (included as Exhibit A to the Indenture filed as Exhibit 4.2)

8-K 001-38102 4.1 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.

Bank National Association, as trustee.

Bank Trust Company , National Association, as T rustee

8-K 001-38102 4.1 08/29/2022

2 unchanged sentences

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).

4.6 Form of certificate representing the 2.000% Convertible Senior Notes due 2029 (included as Exhibit A to the Indenture filed as Exhibit 4.

8-K 001-38102 4.2 01/23/2023

4.7 Indenture, dated as of August 6, 2024, between SMART Global Holdings, Inc.

Bank Trust Company, National Association, as Trustee

8-K 001-38102 4.1 08/06/2024

4.8 Form of certificate representing the 2.00% Convertible Senior Notes due 2030 (included as Exhibit A to the Indenture filed as Exhibit 4.

8-K 001-38102 4.2 08/06/2024

10.1** SMART Global Holdings, Inc.

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and David Laurello, dated June 27, 2023

10.12* Transition and Separation Agreement by and among SMART Global Holdings, Inc., SMART Modular Technologies, Inc.

and Thierry Pellegrino, dated July 18, 2023

10.13* Independent Director Compensation Policy

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.

10-K 001-38102 10.11 10/20/2023

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

10.12** 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

10.13** Transition and Separation Agreement by and between SMART Global Holdings, Inc.

and David Laurello, dated April 6, 2024

10-Q 001-38102 10.1 07/09/2024

10.14** 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

10.15** Amended and Restated Offer Letter by and between SMART Global Holdings, Inc.

and Peter Manca, dated May 23, 2024

10.16** Independent Director Compensation Policy

10.17 Form of Confirmation for the Base Capped Call Transactions

2 unchanged sentences

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

10.19 Promissory Note, dated March 1, 2021, made by SMART Global Holdings, Inc.

13 unchanged sentences

8-K 001-38102 10.1 01/23/2023

10.25 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

10.26 Second Amendment to Credit Agreement, dated as of July 30, 2024, 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

10.27 Third Amendment to Credit Agreement, dated as of August 21, 2024, 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

10.28 Form of Confirmation for the Base Capped Call Transactions

8-K 001-38102 10.1 08/06/2024

10.29 Form of Confirmation for the Additional Capped Call Transactions

8-K 001-38102 10.1 08/14/2024

19.1 Insider Trading and Confidentiality Policy of the Registrant

21.1 List of Subsidiaries of Registrant

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Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

97.1 Clawback Policy of the Registrant

97.2 Policy for Recovery of Erroneously Awarded Compensation of the Registrant

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

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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.

** Constitutes a management contract or compensatory plan or arrangement.

*** The schedules and exhibits 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.

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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.

Penguin Solutions, Inc.

October 24, 2024

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October 24, 2024

/s/ Ken Rizvi

/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, 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.

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.

1 unchanged sentence

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/ Nate Olmstead Senior Vice President and Chief Financial Officer October 24, 2024

Nate Olmstead (Principal Financial and Accounting Officer)

/s/ Penelope Herscher Chairperson of the Board of Directors October 24, 2024

10 unchanged sentences

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures