Consulting Agreement dated December 9, 2021 by and between SMART Global Holdings, Inc. and Ajay Shah

EXHIBIT 10.1

Consulting Agreement

This Consulting Agreement (the “Agreement”) is entered into as of December 9, 2021, by and between Ajay Shah (“Advisor”) and SMART Global Holdings, Inc. (the “Company”).

WHEREAS, Advisor serves as Chairman of the Board of Directors for the Company (the “Board”);

WHEREAS, Advisor previously served as President and Chief Executive Officer for the Company;

WHEREAS, on August 13, 2020, Advisor stepped down from his role as President and Chief Executive Officer following his assistance in selecting and recruiting Mark Adams as successor;

WHEREAS, Advisor now intends to retire from his services as Chairman of the Board, effective as of the date of the consummation of the Company’s annual meeting of shareholders held in 2022 (the “Effective Date”); and

WHEREAS, the Company desires to provide an orderly transition of Advisor’s duties and responsibilities and Advisor desires to assist the Company in realizing an orderly transition and retain Advisor.

NOW, THEREFORE, in furtherance of the foregoing, Advisor and the Company agree as follows:

3.Term and Termination.  

(a)The term of the Services to be provided pursuant to this Agreement shall commence on the Effective Date and continue until the date of the Company’s annual meeting of shareholders occurring in 2023 (the “Term”); provided, that (i) Advisor may terminate the Term early for any reason with 30 days’ written notice and (ii) the Company may terminate the Term early upon written notice to Advisor of a termination for “Cause” in accordance with Section 3(b).

(b)For purposes of this Agreement, “Cause” shall mean the Advisor’s: (A) material breach of this Agreement or any other material written agreement with the Company, (B) conviction of, or plea of nolo contendere to, a felony (excluding traffic offenses) which has or is reasonably expected to have a material detrimental effect on the reputation or business of the Company or its affiliates; (C) gross misconduct or other intentional conduct that has or is reasonably expected to have a material detrimental effect on the reputation or business of the Company or its affiliates; (D) willful and improper disclosure of confidential information; or (E) willful failure to reasonably cooperate with the Company in any investigation or formal proceeding; provided that no such determination may be made until Advisor has been given written notice detailing the specific Cause event and a period of thirty (30) days following receipt of such notice to cure such event (if the event is curable), or, if such event is not so cured (or is not curable), an opportunity on at least five (5) days

advance written notice to appear (with legal counsel) before the full Board to discuss the specific circumstances alleged to constitute a Cause event.

5.Release.

(a)In consideration for the benefits outlined in the Agreement, to which Advisor is not otherwise entitled, Advisor hereby releases the Company as follows (the “Release”): Advisor generally and completely releases the Company and its affiliated entities (collectively “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, liabilities and obligations, both known and unknown (collectively, “Claims”), arising (i) out of Advisor’s employment, Board membership or other relationship with the Company Entities, and the termination of such service or relationship or (ii) any event, condition, circumstance or obligation that occurred, existed or arose on or prior to the date hereof, in each case that Advisor ever had, now has or may hereinafter have against any of the Release Parties. This Release does not apply to (w) any rights Advisor may have as a member or holder of equity or other securities of the Company, (x) any claims which cannot be released as a matter of law, (y) any rights Advisor may have under Section 4 or any other benefits to which Advisor is entitled under the Agreement, or (z) any claim relating to directors’ and officers’ liability insurance coverage or any right of indemnification and similar matters in accordance with applicable laws, the articles, the charter and bylaws of the Company or other organizational documents and any indemnification agreement Advisor has with the Company.  

(b)Advisor acknowledges that Advisor is knowingly and voluntarily waiving and releasing any rights Advisor has under the Federal Age Discrimination in Employment Act of 1967, as amended, and the applicable rules and regulations promulgated thereunder (“ADEA”) and that the consideration given for the waiver and release is in addition to anything of value to which Advisor was already entitled. Advisor further acknowledges that Advisor has been advised by this writing, as required by the ADEA, that: (i) Advisor’s waiver and release specified in this paragraph do not apply to any rights or claims that arise after the date Advisor signs this Release; (ii) Advisor has the right to consult with an attorney prior to signing this Release; (iii) Advisor has up to 21 days to consider this Agreement (although Advisor may choose voluntarily to sign this Release earlier); (iv) Advisor has seven days after Advisor signs this Agreement to revoke the Release; 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 Advisor signs this Release, assuming Advisor has returned it to the Company by such date.

(c)Waiver of Unknown Claims. In granting the general release herein, Advisor acknowledges that Advisor has read and understand California Civil Code section 1542, which states:

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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

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

(d)In addition, Advisor agrees that during the Term and at all times thereafter, he shall not make any written or oral statements about any of the Released Parties that are negative or disparaging, implied or express, or that are intended to damage the Company’s business reputation or goodwill, and he shall not engage in discussions or correspondence about the Company with the media, the Company’s shareholders or the Company’s employees, directors or officers, except in connection with providing the Services. Notwithstanding the foregoing, nothing in this Agreement or otherwise shall preclude Advisor from (a) communicating or testifying truthfully to the extent required by law to any federal, state, provincial or local governmental agency or in response to a subpoena to testify issued by a court of competent jurisdiction, or otherwise pursuant to legal process or (b) responding publicly to incorrect, disparaging or derogatory public statements by the Company to the extent reasonably necessary to correct or refute such public statements.

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.