Transition and Separation Agreement

Exhibit 10.12

Transition and Separation Agreement

This Transition and Separation Agreement (the “Agreement”) is entered into by and between Xxxxxxx Xxxxxxxxxx (the “Employee”), SMART Modular Technologies, Inc., and solely for purposes of Sections 1.a, 1.c, 2, 3.e, 4, 8, and 9, SMART Global Holdings, Inc. (“SGH”) (together with SMART Modular Technologies, Inc., the “Company”), effective as of the eighth day after the date Employee signs this Agreement (the “Effective Date”), if not revoked in accordance with Section 5(b). Reference is made to that certain employment offer letter between the Employee and the Company dated December 7, 2020 (the “Offer Letter”). In consideration of the mutual covenants and agreements of the parties set forth in this Agreement, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree to the terms set forth in this Agreement. In order to accept this Agreement, the Employee must return a signed copy of this Agreement to Xxxx Xxxxxxxxxx at [*****] no earlier than the Transition Date (as defined below) and no later than July 18, 2023, and if a signed copy of this Agreement is not returned by such date, or the Employee revokes this Agreement within seven days after signing it in accordance with Section 5(b), this Agreement shall be null and void in its entirety.

1.Termination of Employment and Consulting Period.

(a)Effective on June 27, 2023, the Employee’s role as Senior Vice President and President of Intelligent Platform Solutions and status as an officer terminated. Effective on July 18, 2023 (the “Transition Date”), the Employee’s employment with the Company will terminate.

(b)During the period (the “Consulting Period”) commencing on the Transition Date and ending on the earliest of (i) January 31, 2024, (ii) the date the Employee takes any action that constitutes Cause (as defined in the Offer Letter), (iii) the date the Employee ceases to provide or remain available to provide the Transition Services (as defined below), (iv) any termination date specified by either party, provided that such party has given the other party at least 30 days’ prior written notice of such termination date and such termination date is no earlier than July 31, 2023, or (v) the date of the Employee’s death, the Employee will serve as an independent contractor to the Company and shall provide the following transition services (the “Transition Services”): advice to the Chief Executive Officer of SGH (the “CEO”) or to those individuals as requested by the CEO on an as-requested and as-needed basis in the Employee’s areas of expertise and work experience and responsibility. If the Employee accepts or commences any employment, consulting, advisory or other similar role with any other company or entity during the Consulting Period, the Employee shall notify the Company in writing of such role no later than the date such role commences.

(c)During the Consulting Period, subject to the Employee’s compliance with this Agreement, the Employee shall continue to vest in his outstanding SGH equity incentive awards that are subject solely to service-based vesting in accordance with their terms (the “Continued Vesting”), but he shall not be entitled to any other compensation or benefits during the Consulting Period. On the Transition Date, the Employee’s outstanding SGH performance share unit awards shall be forfeited. At the end of the Consulting Period, all of the Employee’s then-outstanding and unvested SGH equity incentive awards shall be forfeited in accordance with their terms.

2.Severance. In accordance with Section 8(b) of the Offer Letter, and in consideration for the Employee’s acceptance of and agreement to the covenants set forth in this Agreement, the Employee

shall receive (i) an aggregate amount equal to $356,250 (representing 0.75 times the Employee’s base salary as of the date hereof), (ii) a prorated bonus amount under the Company’s annual bonus program with respect to the portion of the 2023 fiscal year for which the Employee provided services as an employee (i.e., the portion of the 2023 fiscal year beginning on August 27, 2022 and ending on the Transition Date), with the actual amount to be based on the determination by the Company’s compensation committee of Company performance through the Transition Date and (iii) payment or reimbursement of the cost of health benefit continuation coverage under COBRA during the period (the “COBRA Period”) starting on the Transition Date and ending on the earlier of (x) nine months following the first full month after the month in which the Transition Date falls or (y) the date the Employee becomes eligible for health benefits with another employer (collectively, the “Severance Benefits”). The Severance Benefits to be paid pursuant to clause (i) above shall be paid in accordance with the Company’s regular payroll practices in substantially equal installments over the 12-month period following the Transition Date, with the first installment to be paid no later than the Company’s second regular payroll date following the Effective Date, inclusive of any installments that would have been paid if the Effective Date had been the Transition Date. The Severance Benefits to be paid pursuant to clause (ii) above shall be paid at the same time annual bonuses for the Company’s 2023 fiscal year are paid to the Company’s other executives. The Severance Benefits to be paid pursuant to clause (iii) above shall be paid no later than the due date of such COBRA continuation coverage premiums, provided that if the Company is unable to continue to cover the Employee under its group health plans without penalty under applicable law (including without limitation, Section 2716 of the Public Health Service Act), then an amount equal to each remaining Company subsidy installment during the COBRA Period shall thereafter be paid to the Employee on, or as soon as administratively practicable after, the date the related premium is due. The payment of all Severance Benefits are subject to the Employee’s compliance with this Agreement.

3.Other Matters Related to Termination.

(a)The Employee agrees that he has received all Accrued Amounts (as defined in the Offer Letter) for all work performed for the Company and its affiliated entities (collectively, the “Company Entities”) through the Transition Date that is due and payable on or prior to the Transition Date. The Employee acknowledges and agrees that the Severance Benefits and the payments referenced in this Section 3 are in complete satisfaction of any and all compensation or benefits due to the Employee from any of the Company Entities for services provided to any of the Company Entities through the Transition Date, including under the Offer Letter, and that no further compensation or benefits are owed or will be paid to the Employee.

(b)Except for any right the Employee may have to healthcare coverage through the last day of the month in which the Transition Date occurs, as well as his right to continue his participation and that of his eligible dependents in the Company’s medical, dental, and vision plans under COBRA, the Employee’s participation in all employee benefit plans of the Company will end as of the Transition Date, in accordance with the terms of those plans. The Employee acknowledges that he will not earn paid time off or other similar benefits after the Transition Date. The Employee will receive information about his COBRA continuation rights under separate cover.

(c)Within 30 days following the Transition Date, the Employee must submit his final expense reimbursement statement reflecting all business expenses the Employee incurred through

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the Transition Date, if any, for which the Employee seeks reimbursement, and, in accordance with Company policy, reasonable substantiation and documentation for the same. The Company will reimburse the Employee for the Employee’s authorized and documented expenses within 30 days of receiving such statement pursuant to its regular business practices.

(d)The Employee agrees to return to the Company, on or before the Transition Date, (i) any documents and other materials (whether in hardcopy, on electronic media or otherwise) related to the business of the Company Entities (in each case to the extent that such documents and other materials contain confidential information of the Company Entities) and (ii) any keys, access cards, credit cards, computer hardware and software, telephones and telephone-related equipment and any other similar property of any of the Company Entities in the Employee’s possession or control. The Employee agrees that he will not, following the Transition Date, attempt to access or use any computer or computer network or system of any of the Company Entities. The Employee agrees to provide to the Company, on or before the Transition Date, passwords necessary or desirable to obtain access to, or that would assist in obtaining access to, all information which the Employee has password-protected on any computer equipment, network or system of any of the Company Entities.

(e)The Employee will be deemed to have resigned from any and all positions and offices that the Employee holds with the Company Entities as of June 27, 2023 (provided that the Employee shall remain an employee of the Company until the Transition Date), without any further action required therefor (collectively, the “Resignations”). The Company, on its own behalf and on behalf of each of the Company Entities, hereby accepts the Resignations as of June 27, 2023, and the Employee agrees to sign and return such documents confirming the Resignations as the Company Entities may reasonably require.

(f)All payments made by the Company under this Agreement, including Continued Vesting, shall be reduced by any tax or other amounts required to be withheld by the Company and, as the case may be, reported on a W-2, under applicable law and all other lawful deductions authorized by the Employee.

4.Certain Covenants and Agreements. The covenants and agreements (the “Restrictive Covenants”) set forth in the Employment Confidential Information and Invention Assignment Agreement between the Employee and the Company, dated March 8, 2021 (the “Confidentiality Agreement”), will remain in effect following the Transition Date and during and following the Consulting Period to the same extent as if the Employee were an employee of the Company during the Consulting Period, except that Section 4 of the Confidentiality Agreement shall no longer apply to the Employee as of the first day of the Consulting Period. The Employee hereby reaffirms and agrees to comply with the Confidentiality Agreement, and the Arbitration and Class Action Waiver Agreement between the Employee and the Company. Additionally, the Employee agrees that he shall not make any written or oral statements about any of the Released Parties (as defined below) that are negative or disparaging, implied or expressed, or that are intended to damage the Company’s business reputation or goodwill. The Company agrees that it will not, and it will instruct its directors and management team (including its Section 16 officers) to not make any written or oral statements about Employee that are negative or disparaging, implied or expressed, or that are intended to damage the Employee’s business reputation or goodwill. Notwithstanding the foregoing, nothing in this Agreement or otherwise shall preclude the parties from (a) communicating or testifying truthfully to the extent required by law to any federal, state, provincial or

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local governmental agency or in response to a subpoena to testify issued by a court of competent jurisdiction, or otherwise pursuant to legal process, (b) responding publicly to incorrect, disparaging or derogatory public statements by the other parties to the extent reasonably necessary to correct or refute such public statements or (c) disclosing acts in good faith thought to be unlawful. The Employee agrees to cooperate with the Company in the defense of any legal matter involving any matter that arose during the Employee’s employment with any Company Entity, and with all government authorities on matters pertaining to any investigation, litigation or administrative proceedings pertaining to any Company Entity; provided that the Company will reimburse the Employee for any reasonable travel and out of pocket expenses the Employee incurs in providing such cooperation.

5.Release. As a condition to receiving the Severance Benefits and Continued Vesting, the Employee hereby agrees to the following provisions.

(a)In consideration for the benefits outlined in the Agreement, to which the Employee is not otherwise entitled, the Employee, on the Employee’s own behalf and on behalf of the Employee’s heirs, family members, executors, agents, and assigns, hereby releases the Company as follows (the “Release”): the Employee generally and completely releases the Company Entities and their directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns (together with the Company Entities, the “Released Parties”) from any and all claims, demands, damages, loss, cost or expense, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called “Claims”), which the Employee now has or may hereafter have against the Released Parties, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof, including, without limiting the generality of the foregoing, any Claims arising out of, based upon, or relating to the Employee’s hire, employment, separation from employment, or remuneration by the Released Parties, or any of them, including Claims arising under federal, state, or local laws relating to employment, Claims of any kind that may be brought in any court or administrative agency, any Claims arising under the Age Discrimination in Employment Act (the “ADEA”); Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991; the Equal Pay Act; the Civil Rights Act of 1866; the Family and Medical Leave Act of 1993; the Americans with Disabilities Act of 1990; the False Claims Act; the Employee Retirement Income Security Act; the Worker Adjustment and Retraining Notification Act, the Fair Labor Standards Act, the Xxxxxxxx-Xxxxx Act of 2002; the Texas Labor Code, including the Texas Payday Act, the Texas Anti-Retaliation Act, Chapter 21 of the Texas Labor Code and the Texas Whistleblower Act; each as amended; and any and all other federal, state and local laws, statutes, executive orders, regulations municipal ordinances, common law, and any other jurisdiction worldwide; Claims for breach of contract; Claims arising in tort, including, without limitation, Claims of wrongful dismissal or discharge, discrimination, harassment, retaliation, fraud, misrepresentation, defamation, libel, infliction of emotional distress, violation of public policy, and/or breach of the implied covenant of good faith and fair dealing; and Claims for damages or other remedies of any sort, including, without limitation, compensatory damages, punitive damages, injunctive relief and attorney’s fees. This Release does not apply to (x) any claims which cannot be released as a matter of law, (y) any rights under this Agreement, or (z) any claims that Employee may have as a result of the indemnifications that employee may be entitled to as a current or former officer or director of any of the Company Entities as a matter of common law or under the Company’s indemnification and directors and officers insurance coverage.

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(b)The Employee acknowledges that the Employee is knowingly and voluntarily waiving and releasing any rights the Employee has under the ADEA, and the applicable rules and regulations promulgated thereunder, and that the consideration given for the waiver and release is in addition to anything of value to which the Employee was already entitled. The Employee further acknowledges that the Employee has been advised by this writing, as required by the ADEA, that: (i) the Employee’s waiver and release under this Agreement do not apply to any rights or claims that arise after the date the Employee signs this Agreement; (ii) the Employee has the right to consult with an attorney prior to signing this Agreement; (iii) the Employee has up to 21 days after the date this Agreement was first presented to the Employee to consider this Agreement (although the Employee may choose voluntarily to sign this Agreement earlier), and in the event of any changes to this Agreement, whether or not material, Employee waives the restarting of the 21 day period; (iv) the Employee has seven days after the Employee signs this Agreement to revoke it; and (v) this Agreement will not be effective until the date on which the revocation period has expired, which will be the eighth day after the Employee signs this Agreement, assuming the Employee has returned it to the Company by such date. In addition, the Employee acknowledges that he has seven calendar days following his execution of the Supplemental Release (as defined below) to revoke the Supplemental Release; provided that any revocation of the Supplemental Release shall revoke only his release of claims that were not otherwise released upon his initial execution and non-revocation of this Agreement. In order to revoke this Agreement or the Supplemental Release, the Employee must provide written notice that he is revoking it within the applicable seven-day timeframe to Xxxx Xxxxxxxxxx at [*****].

(c)In granting the general release herein, the Employee acknowledges that the Employee has read and understands California Civil Code section 1542, which states:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

The Employee expressly waives and relinquishes all rights and benefits under that section and any law of any jurisdiction of similar effect.

(d)    The Employee hereby agrees to re-execute the Release and confirm the representations set forth in this Section 5 within five business days after the end of the Consulting Period, but no earlier than the end of the Consulting Period, by signing the second signature line on the signature page hereto (the “Supplemental Release”).

6.Cessation of Payments. In the event that the Employee (i) commits a material breach of this Agreement, (ii) files any charge, claim, demand, action or arbitration with regard to the Employee’s employment, compensation or termination of employment under any federal, state, local or foreign law, or an arbitration under any industry regulatory entity, except in either case for a claim for breach of this Agreement or failure to honor the obligations set forth herein or (iii) materially violates any of the Restrictive Covenants, the Employee will immediately forfeit any right to the unpaid Severance Benefits and Continued Vesting, and, to the extent permitted by applicable law, the Employee will be required to repay the net amount of any Severance Benefits previously paid to the Employee (taking into account any taxes withheld) and all of the Employee’s SGH equity incentive awards that have vested during the

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Consulting Period shall immediately be forfeited for no consideration and to the extent that any such awards have been previously settled in ordinary shares of SGH, the Employee shall be required to return such shares or their equivalent cash value to SGH. Notwithstanding the foregoing, if an alleged breach of this Agreement or violation of a Restrictive Covenant (a) occurs more than 12 months after the end of the Consulting Period and (b) does not relate to any non-disparagement or confidentiality obligations of the Employee, the Employee will not be required to repay Severance Benefits as set forth in this Section 6.

7.Independent Contractor Status. During the Consulting Period, the Employee shall act solely as an independent contractor with respect to the Company, and as such, shall not be authorized to and shall not seek or attempt to bind, represent or speak on behalf of the Company to third parties without the prior written consent of the Company. The Employee shall be solely responsible for the payment of any federal, state, or local income or self-employment taxes imposed on him with respect to any amounts paid to the Employee in respect of the Consulting Period. During the Consulting Period the Employee shall not be eligible to participate in the benefit plans of the Company, including without limitation, any retirement, pension, profit sharing, group insurance, health insurance or similar plans, if any, that have been or may be instituted by the Company for the benefit of its employees; provided that the Employee may participate in the benefit plans of the Company in his status as a former employee of the Company where applicable.

8.Certain Exceptions.

(a)Nothing in this Agreement or otherwise limits the Employee’s ability to (i) communicate directly with, cooperate with or provide information, including documents, not otherwise protected from disclosure by any applicable law or privilege, to any federal, state or local government agency or commission (each, a “Government Agency”), including without limitation the U.S. Securities and Exchange Commission (the “SEC”), the U.S. Commodity Futures Trading Commission, the U.S. Department of Justice, the U.S. Equal Employment Opportunity Commission, or the U.S. National Labor Relations Board, without notifying or seeking permission from the Company, (ii) exercise any rights the Employee may have under Section 7 of the U.S. National Labor Relations Act, or (iii) discuss or disclose information about unlawful acts in the workplace, such as harassment or discrimination based on a protected characteristic or any other conduct that Employee has reason to believe is unlawful. The Company may not retaliate against the Employee for any of these activities, and nothing in this Agreement requires the Employee to waive any monetary award or other payment that the Employee might become entitled to from the SEC or any other Government Agency or self-regulatory organization. Moreover, nothing in this Agreement or otherwise prohibits the Employee from notifying the Company that the Employee is going to make a report or disclosure to law enforcement.

(b)Further, nothing in this Agreement precludes the Employee from filing a charge of discrimination or unfair labor practice with the U.S. Equal Employment Opportunity Commission or a like charge or complaint with a state or local fair employment or labor Government Agency. However, the Employee may not receive a monetary award or any other form of personal relief from the Company in connection with any such charge or complaint that the Employee has filed or is filed on the Employee’s behalf.

(c)Pursuant to the Defend Trade Secrets Act of 2016, the Employee and the Company acknowledge and agree that the Employee will not have criminal or civil liability under any federal or state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a

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federal, state, or local government official, either directly or indirectly, or to an attorney and (B) solely for the purpose of reporting or investigating a suspected violation of law or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition and without limiting the preceding sentence, if the Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Employee may disclose the trade secret to the Employee’s attorney and may use the trade secret information in the court proceeding, if the Employee (x) files any document containing the trade secret under seal and (y) does not disclose the trade secret, except pursuant to court order.

9.Section 409A. This Agreement and the payments to be made hereunder are intended to comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (“Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and construed to be in compliance therewith or exempt therefrom. For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), the Employee’s right to receive any installment payments under this Agreement shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment. The Company and the Employee acknowledge that the termination of the Employee’s employment with the Company is intended to constitute an involuntary separation from service for purposes of Section 409A.

10.Miscellaneous. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to such subject matter, including without limitation the Offer Letter. The provisions and obligations of this Agreement that are intended to survive upon termination of this Agreement shall survive. This Agreement and the rights and obligations hereunder shall be governed by and construed in accordance with the laws of the State of Texas without regard to its principles of conflict of laws. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. No amendment, modification, termination or waiver of any provisions of this Agreement and no consent to any departure by any party therefrom shall in any event be effective unless the same shall be in writing and signed by the parties hereto, and then such waiver or consent shall be effective only in the given instance and for the specific purpose for which given.

11.Assignment. Neither this Agreement nor any right or interest hereunder shall be assignable by the Employee, his beneficiaries or legal representatives without the Company’s prior written consent. The Company may assign this Agreement to any successor or assign (whether directly or indirectly, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company. This Agreement shall inure to the benefit of the Company and its permitted successors and assigns.

[Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.

SMART MODULAR TECHNOLOGIES, INC.
By:			/s/ Xxxx Xxxxx
			Name: Xxxx Xxxxx
Date:			Title: Chief Executive Officer     July 18, 2023

Solely for purposes of Sections 1.a, 1.c, 2, 3.e, 4, 8, and 9:

SMART GLOBAL HOLDINGS, INC.
By:			/s/ Xxxx Xxxxx
			Name: Xxxx Xxxxx
Date:			Title: Chief Executive Officer     July 18, 2023

THE EMPLOYEE HEREBY ACKNOWLEDGES THAT THE EMPLOYEE HAS READ THIS AGREEMENT, THAT THE EMPLOYEE FULLY KNOWS, UNDERSTANDS AND APPRECIATES ITS CONTENTS, AND THAT THE EMPLOYEE HEREBY ENTERS INTO THIS AGREEMENT VOLUNTARILY AND OF THE EMPLOYEE’S OWN FREE WILL.

ACCEPTED AND AGREED:

/s/ Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxxxx
Date:			July 18, 2023

SUPPLEMENTAL RELEASE

The Release and representations contained in Section 5 above are ratified and confirmed with respect to any Claims, acts or omissions through and as of the end of the Consulting Period.

ACCEPTED AND AGREED:

Xxxxxxx Xxxxxxxxxx

Date: