Exhibit 5.1
Our ref SMC/693334-000001/67187584v1
SMART Global Holdings, Inc.
PO Box 309
Ugland House
South Church Street
Grand Cayman KY1-1104
Cayman Islands
13 July 2021
Dear Sirs
SMART Global Holdings, Inc.
We have acted as counsel as to Cayman Islands law to SMART Global Holdings, Inc., an exempted company incorporated in the Cayman Islands with limited liability (the “Company”), in connection with the filing with the Securities and Exchange Commission under the Securities Act of 1933, as amended, a supplement to the Company’s registration statement on Form S-3 dated 20 September 2018 (Registration No. 333-227451) (the “Registration Statement”) relating to the sale of up to 3,000,000 ordinary shares (the “Ordinary Shares”) which have been issued to, and which may be offered by, the selling shareholders identified in the Registration Statement (together, the “Selling Shareholders”).
1 | Documents Reviewed |
We have reviewed originals, copies, drafts or conformed copies of the following documents:
1.1 | The Certificate of Incorporation dated 21 April 2011, the Certificate of Incorporation upon Change of Name dated 29 August 2014 and the Amended and Restated Memorandum and Articles of Association of the Company as adopted on 30 March 2020 (the “Memorandum and Articles”). |
1.2 | The written resolutions of the board of directors of the Company dated 8 July 2021 (the “Resolutions”) and the corporate records of the Company maintained at its registered office in the Cayman Islands. |
1.3 | A certificate from a director of the Company, a copy of which is attached to this opinion letter (the “Director’s Certificate”). |
1.4 | A copy of the register of members of the Company dated 6 July 2021 (the “Register of Members”). |
1.5 | 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. We have also relied upon the following assumptions, which we have not independently verified:
2.1 | Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals, and translations of documents provided to us are complete and accurate. |
2.2 | No invitation has been or will be made by or on behalf of the Company to the public in the Cayman Islands to subscribe for any of the Ordinary Shares. |
2.3 | All signatures, initials and seals are genuine. |
2.4 | The completeness and accuracy of the Register of Members. |
2.5 | The completeness and accuracy of the Register of Members. |
2.6 | No monies paid to or for the account of any party under the Registration Statement or any property received or disposed of by any party to the Registration Statement in connection with the Registration Statement or the consummation of the transactions contemplated thereby represent or will represent proceeds of criminal conduct or criminal property or terrorist property (as defined in the Proceeds of Crime Act (As Revised) and the Terrorism Act (As Revised), respectively). |
2.7 | There is nothing under any law (other than the laws of the Cayman Islands) which would or might affect the opinions set out below. Specifically, we have made no independent investigation of the State of New York. |
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 qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:
3.1 | The Company has been duly incorporated as an exempted company with limited liability and is validly existing. |
3.2 | Based solely of our inspection of the Register of Members, the Selling Shareholders have valid title to their respective Ordinary Shares and such Ordinary Shares have been duly authorised, legally issued and are fully paid and non-assessable and there are no entries or notations indicating any third party interests, including any security interest as at the date hereof. |
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3.3 | The statements under the caption “Taxation—Cayman Islands Tax Considerations” in the prospectus included in the Registration Statement, to the extent that they constitute statements of Cayman Islands law, are accurate in all material respects and such statements constitute our opinion. |
4 | Qualifications |
The opinions expressed above are subject to the following qualifications:
4.1 | To maintain the Company in good standing under the laws of the Cayman Islands, annual filing fees must be paid and returns made to the Registrar of Companies within the time frame prescribed by law. |
4.2 | Under Cayman Islands law, the register of members (shareholders) is prima facie evidence of title to shares and this register would not record a third party interest in such shares. However, there are certain limited circumstances where an application may be made to a Cayman Islands court for a determination on whether the register of members reflects the correct legal position. Further, the Cayman Islands court has the power to order that the register of members maintained by a company should be rectified where it considers that the register of members does not reflect the correct legal position. As far as we are aware, such applications are rarely made in the Cayman Islands, but if this were to occur in respect of the Company’s Shares, then the validity of such shares may be subject to re-examination by a Cayman Islands court. |
4.3 | Except as specifically stated herein, we make no comment with respect to any representations and warranties which may be made by or with respect to the Company in any of the documents or instruments cited in this opinion letter or otherwise with respect to the commercial terms of the transactions the subject of this opinion letter. |
4.4 | In this opinion letter, the phrase “non-assessable” means, with respect to the issuance of shares, that a shareholder shall not, in respect of the relevant shares and in the absence of a contractual arrangement, or an obligation pursuant to the memorandum and articles of association, to the contrary, have any obligation to make further contributions to the Company’s assets (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil). |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus included in 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 Securities Act of 1933, as amended, or the Rules and Regulations of the Securities and Exchange Commission thereunder.
Yours faithfully
/s/ Maples and Calder (Cayman) LLP
Maples and Calder (Cayman) LLP
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SMART Global Holdings, Inc.
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands
13 July 2021
To: | Maples and Calder (Cayman) LLP |
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:
1 | The Memorandum and Articles remain in full force and effect and are unamended. |
2 | The Company has not entered into any mortgages or charges over its property or assets other than those entered in the register of mortgages and charges of the Company. |
3 | 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. |
4 | The authorised share capital of the Company is US$6,900,000 divided into 200,000,000 Ordinary Shares of a par value of US$0.03 each and 30,000,000 Preferred Shares of a par value of US$0.03 each. |
5 | 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 or restriction (other than as arising under Cayman Islands law) binding on the Company prohibiting or restricting it from entering into and performing its obligations under the Registration Statement and any documents in connection therewith. |
6 | The directors of the Company at the date of the Resolutions and at the date of this certificate were and are as follows: Kenneth Y. Hao, Ajay Bhupendra Shah, Jason White, Mukesh Patel, Sandeep Nayyar, Randy Furr, Bryan Ingram, Maximiliane Straub and Mark Adams. |
7 | 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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8 | Prior to, at the time of, and immediately following the approval of the transactions the subject of the Registration Statement 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 transactions the subject of the Registration Statement for proper value and not with an intention to defraud or wilfully defeat an obligation owed to any creditor or with a view to giving a creditor a preference. |
9 | Each director of the Company considers the transactions contemplated by the Registration Statement to be of commercial benefit to the Company and has acted in good faith 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. |
10 | To the best of my knowledge and belief, having made due inquiry, the Company is not the subject of legal, arbitral, administrative or other proceedings in any jurisdiction. |
11 | To the best of my knowledge and belief, having made due inquiry, there are no circumstances or matters of fact existing which may properly form the basis for an application for an order for rectification of the register of members of the Company. |
12 | The Registration Statement has been, or will be, authorised and duly executed and delivered by or on behalf of all relevant parties in accordance with all relevant laws. |
13 | The Shares to be issued pursuant to the Registration Statement have been, or will be, duly registered, and will continue to be registered, in the Company’s register of members (shareholders). |
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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 in writing personally to the contrary.
Signature: | /s/ Mark Adams | |
Name: | Mark Adams | |
Title: | Director |
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