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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
June 12, 2024
Date
of Report (Date of earliest event reported)
SHAKE
SHACK INC.
(Exact
name of registrant as specified in its charter)
Delaware |
001-36823 |
47-1941186 |
(State
or other jurisdiction of
incorporation
or organization)
|
(Commission
File
Number) |
(IRS
Employer
Identification
No.) |
|
225
Varick Street, Suite
301
New
York, New
York |
10014 |
|
(Address
of principal executive offices) |
(Zip
Code) |
(646)
747-7200
(Registrant's
telephone number, including area code)
Not
applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
¨ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
|
Trading
symbol(s)
|
Name
of each exchange on which registered |
Class
A Common Stock, par value $0.001 |
SHAK |
New
York Stock Exchange |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405)
or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 5.02. | Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers. |
On
June 12, 2024, the stockholders of Shake Shack Inc. (“Shake Shack” or the “Company”) voted
at the Company’s 2024 annual meeting of stockholders (the “Annual
Meeting”) to approve the amendment and restatement of the Company’s Incentive Award Plan (as amended and restated, the
“2025 Plan”), as further described in Item 5.07 of this Current Report on Form 8-K below, which is an amendment
and restatement of the Shake Shack Inc. 2015 Incentive Award Plan. The Company’s Board of Directors previously approved the 2025
Plan, subject to stockholder approval at the Annual Meeting. The amendment and restatement of the Plan (i) authorizes the issuance
of up to 842,321 additional shares of the Company’s Class A Common Stock that may be issued under the Plan, (ii) imposes
a minimum vesting requirement on awards of one year, subject to certain limited exceptions, (iii) extends the term of the Plan by
10 years from the date of stockholder approval, and (iv) provides other clarifying and ministerial changes, each as described in
more detail in the Company’s Definitive Proxy Statement on Schedule 14A for the Annual Meeting under Proposal 5, as filed with
the Securities and Exchange Commission on April 25, 2024, which is incorporated by reference herein.
The
foregoing summary description of the 2025 Plan is qualified in its entirety by the full text of the 2025 Plan, which is filed as Exhibit 10.1
to this Current Report on Form 8-K and incorporated herein by reference.
Item 5.07 |
Submission of
Matters to a Vote of Security Holders. |
At
the Annual Meeting, the Company’s stockholders were asked to vote on five proposals: (i) to elect three Class III directors;
(ii) to ratify the appointment of Ernst & Young LLP as Shake Shack’s independent registered public accounting firm
for the fiscal year ending December 25, 2024; (iii) to conduct an advisory vote on the compensation of named executive officers;
(iv) to provide input on the frequency of the non-binding advisory vote approving the compensation of the Company’s named
executive officers; and (v) to approve the amendment and restatement of the Company’s Incentive Award Plan. The results of
the stockholder vote are set forth below.
Proposal
1 - Election of Directors
Shake
Shack’s stockholders elected three nominees, Sumaiya Balbale, Charles Chapman III, and Jeffrey Lawrence, as Class III directors
to hold office until the annual meeting of stockholders to be held during Shake Shack’s 2027 fiscal year and until their respective
successor is duly elected and qualified. The results of the stockholder vote are set forth below:
Name | |
Votes For | |
Votes Withheld | |
Broker Non-Votes |
Sumaiya Balbale | |
25,622,784 | |
7,042,600 | |
4,939,430 |
Charles Chapman III | |
32,460,817 | |
204,567 | |
4,939,430 |
Jeffrey Lawrence | |
25,321,892 | |
7,343,492 | |
4,939,430 |
Proposal
2 - Ratification of the Appointment of Independent Registered Public Accounting Firm for the Fiscal Year Ending December 25, 2024
Shake
Shack’s stockholders ratified the appointment of Ernst & Young LLP as the Company’s independent registered public
accounting firm for the fiscal year ending December 25, 2024. The voting results are set forth below:
Votes For | |
Votes Against | |
Abstentions | |
Broker Non-Votes |
37,399,027 | |
181,137 | |
24,650 | |
0 |
Proposal
3 - Advisory Vote on the Compensation of Named Executive Officers
Shake
Shack’s stockholders approved the advisory resolution approving the compensation of Shake Shack’s Named Executive Officers.
The voting results are set forth below:
Votes For | |
Votes Against | |
Abstentions | |
Broker Non-Votes |
29,558,537 | |
3,080,699 | |
26,148 | |
4,939,430 |
Proposal
4 - Approval, on an Advisory Basis, of the Frequency of Future Advisory Votes on the Compensation of Shake Shack's Named Executive Officers
Shake
Shack stockholders approved, on an advisory basis, a frequency of one year for the non-binding, advisory vote on the frequency of future
advisory votes on the compensation of Shake Shack's named executive officers, as set forth below:
1 Year | |
2 Years | |
3 Years | |
Abstentions | |
Broker Non-Votes |
31,708,434 | |
29,915 | |
886,913 | |
40,122 | |
4,939,430 |
Proposal
5 – Approve the Amendment and Restatement of Shake Shack’s Incentive Award Plan
Shake
Shack’s stockholders approved the amendment and restatement of the Company’s Incentive Award Plan, as set forth above in
Item 5.02 of this Current Report on Form 8-K. The voting results are set forth below:
Votes For | |
Votes Against | |
Abstentions | |
Broker Non-Votes |
31,953,510 | |
692,723 | |
19,151 | |
4,939,430 |
(d) The
Company’s Board of Directors, taking into consideration the final tabulation of votes for Proposal 3, as described above, and consistent
with the Company’s Board of Directors’ recommendation, determined that the Company will hold non-binding, advisory votes to approve
the compensation of the Company’s named executive officers every year until the next required advisory vote on the frequency of
future advisory votes on the compensation of the Company’s named executive officers.
Item 9.01.
Financial Statements and Exhibits
(d) Exhibits.
* Filed herewith
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
|
Shake
Shack Inc. |
|
(Registrant) |
|
|
|
By: |
/s/
Ronald Palmese, Jr. |
|
|
Ronald
Palmese, Jr. |
Date:
June 13, 2024 |
|
Chief
Legal Officer |
Exhibit 10.1
SHAKE SHACK INC.
2025 INCENTIVE AWARD PLAN
As Amended and Restated Effective as of June 12,
2024
ARTICLE 1.
PURPOSE
The purpose of the Shake Shack
Inc. 2025 Incentive Award Plan is to promote the success and enhance the value of Shake Shack Inc. (the “Company”)
by linking the individual interests of the members of the Board, Employees, and Consultants to those of Company stockholders and by providing
such individuals with an incentive for outstanding performance to generate superior returns to Company stockholders. The Plan is further
intended to provide flexibility to the Company in its ability to motivate, attract, and retain the services of members of the Board, Employees,
and Consultants upon whose judgment, interest, and special effort the successful conduct of the Company’s operation is largely dependent.
ARTICLE 2.
DEFINITIONS AND CONSTRUCTION
Wherever the following terms
are used in the Plan they shall have the meanings specified below, unless the context clearly indicates otherwise. The singular pronoun
shall include the plural where the context so indicates.
2.1 “Administrator”
shall mean the entity that conducts the general administration of the Plan as provided in Article 13. With reference to the
duties of the Committee under the Plan which have been delegated to one or more persons pursuant to Section 12.6, or as to which
the Board has assumed, the term “Administrator” shall refer to such person(s) unless the Committee or the Board has revoked
such delegation or the Board has terminated the assumption of such duties.
2.2 “Affiliate”
shall mean (a) any Subsidiary, (b) any Parent, and (c) any domestic eligible entity that is disregarded, under Treasury
Regulation Section 301.7701-3, as an entity separate from either (i) the Company, (ii) any Subsidiary or (iii) any
Parent.
2.3 “Applicable Accounting
Standards” shall mean Generally Accepted Accounting Principles in the United States, International Financial Reporting
Standards or such other accounting principles or standards as may apply to the Company’s financial statements under United States
federal securities laws from time to time.
2.4 “Applicable Law”
shall mean any applicable law, including without limitation: (i) provisions of the Code, the Securities Act, the Exchange Act and
any rules or regulations thereunder; (ii) corporate, securities, tax or other laws, statutes, rules, requirements or regulations,
whether federal, state, local or foreign; and (iii) rules of any securities exchange or automated quotation system on which
the Shares are listed, quoted or traded.
2.5 “Automatic Exercise
Date” shall mean, with respect to an Option or a Stock Appreciation Right, the last business day of the applicable Option Term
or Stock Appreciation Right Term that was initially established by the Administrator for such Option or Stock Appreciation Right (e.g.,
the last business day prior to the tenth anniversary of the date of grant of such Option or Stock Appreciation Right if the Option or
Stock Appreciation Right initially had a ten-year Option Term or Stock Appreciation Right Term, as applicable).
2.6 “Award”
shall mean an Option, a Restricted Stock award, a Restricted Stock Unit award, a Performance Award, a Dividend Equivalent award, a Deferred
Stock award, a Deferred Stock Unit award, a Stock Payment award or a Stock Appreciation Right, which may be awarded or granted under the
Plan (collectively, “Awards”).
2.7 “Award Agreement”
shall mean any written notice, agreement, terms and conditions, contract or other instrument or document evidencing an Award, including
through electronic medium, which shall contain such terms and conditions with respect to an Award as the Administrator shall determine
consistent with the Plan.
2.8 “Award Limit”
shall mean with respect to Awards that shall be payable in Shares or in cash, as the case may be, the respective limit set forth in Section 3.3.
2.9 “Board”
shall mean the Board of Directors of the Company.
2.10 “Change in Control”
shall mean and includes each of the following:
(a) A transaction or series of
transactions (other than an offering of Common Stock to the general public through a registration statement filed with the Securities
and Exchange Commission) whereby any “person” or related “group” of “persons” (as such terms are used
in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of its subsidiaries, any employee benefit plan
maintained by the Company or any of its subsidiaries, any Significant Stockholder, or a “person” that, prior to such transaction,
directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than 50% of the
total combined voting power of the Company’s securities outstanding immediately after such acquisition; or
(b) During any period of two consecutive
years, individuals who, at the beginning of such period, constitute the Board together with any new Director(s) (other than a Director
designated by a person who shall have entered into an agreement with the Company to effect a transaction described in Section 2.10(a) or
2.10(c)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at
least a majority of the Directors then still in office who either were Directors at the beginning of the two-year period or whose election
or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(c) The consummation by the Company
(whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger,
consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company’s
assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in
each case other than a transaction:
(i) which results
in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding
or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or
indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds
to the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least
a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction,
and
(ii) after which
no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity;
provided, however, that no person or group shall be treated for purposes of this Section 2.10(c)(ii) as
beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the
Company prior to the consummation of the transaction; or
(d) The consummation of a liquidation
or dissolution of the Company.
Notwithstanding the foregoing, if a Change in
Control constitutes a payment event with respect to any portion of an Award that provides for the deferral of compensation and is subject
to Section 409A of the Code, the transaction or event described in subsection (a), (b), (c) or (d) with
respect to such Award (or portion thereof) must also constitute a “change in control event,” as defined in Treasury Regulation
Section 1.409A-3(i)(5) to the extent required by Section 409A of the Code.
The Committee shall have full and final authority,
which shall be exercised in its sole discretion, to determine conclusively whether a Change in Control has occurred pursuant to the above
definition, and the date of the occurrence of such Change in Control and any incidental matters relating thereto; provided that
any exercise of authority in conjunction with a determination of whether a Change in Control is a “change in control event”
as defined in Treasury Regulation Section 1.409A-3(i)(5) shall be consistent with such regulation.
2.11 “Clawback Policies”
shall have the meaning set forth in Section 11.5.
2.12 “Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time, together with the regulations and official guidance promulgated
thereunder.
2.13 “Committee”
shall mean the Compensation Committee of the Board, or another committee or subcommittee of the Board or the Compensation Committee of
the Board, appointed as provided in Section 12.1.
2.14 “Common Stock”
shall mean the Class A common stock of the Company, par value $0.001 per share.
2.15 “Company”
shall have the meaning set forth in Article 1.
2.16 “Consultant”
shall mean any consultant or adviser engaged to provide services to the Company or any Affiliate that qualifies as a consultant under
the applicable rules of the Securities and Exchange Commission for registration of shares on a Form S-8 Registration Statement.
2.17 “Deferred Stock”
shall mean a right to receive Shares awarded under Section 9.4.
2.18 “Deferred Stock
Unit” shall mean a right to receive Shares awarded under Section 9.5.
2.19 “Director”
shall mean a member of the Board, as constituted from time to time.
2.20 “Director Limit”
shall have the meaning set forth in Section 4.6.
2.21 “Dividend Equivalent”
shall mean a right to receive the equivalent value (in cash or Shares) of dividends paid on Shares, awarded under Section 9.2.
2.22 “DRO”
shall mean a domestic relations order as defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended
from time to time, or the rules thereunder.
2.23 “Effective Date”
shall mean January 16, 2025.
2.24 “Eligible Individual”
shall mean any person who is an Employee, a Consultant or a Non-Employee Director, as determined by the Committee.
2.25 “Employee”
shall mean any officer or other employee (as determined in accordance with Section 3401(c) of the Code and the Treasury Regulations
thereunder) of the Company or of any Affiliate.
2.26 “Equity Restructuring”
shall mean a nonreciprocal transaction between the Company and its stockholders, such as a stock dividend, stock split, spin-off, rights
offering or recapitalization through a large, nonrecurring cash dividend, that affects the number or kind of Shares (or other securities
of the Company) or the share price of Common Stock (or other securities) and causes a change in the per-share value of the Common Stock
underlying outstanding Awards.
2.27 “Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended from time to time.
2.28 “Expiration
Date” shall have the meaning given to such term in Section 13.1.
2.29 “Fair Market
Value” shall mean, as of any given date, the value of a Share determined as follows:
(a) If the Common Stock
is listed on any (i) established securities exchange (such as the New York Stock Exchange, the NASDAQ Global Market and the NASDAQ
Global Select Market), (ii) national market system or (iii) automated quotation system on which the Shares are listed, quoted
or traded, its Fair Market Value shall be the closing sales price for a Share as quoted on such exchange or system for such date or, if
there is no closing sales price for a Share on the date in question, the closing sales price for a Share on the last preceding date for
which such quotation exists, as reported in The Wall Street Journal or such other source as the Administrator deems reliable;
(b) If the Common Stock
is not listed on an established securities exchange, national market system or automated quotation system, but the Common Stock is regularly
quoted by a recognized securities dealer, its Fair Market Value shall be the mean of the high bid and low asked prices for such date or,
if there are no high bid and low asked prices for a Share on such date, the high bid and low asked prices for a Share on the last preceding
date for which such information exists, as reported in The Wall Street Journal or such other source as the Administrator deems
reliable; or
(c) If the Common Stock
is neither listed on an established securities exchange, national market system or automated quotation system nor regularly quoted by
a recognized securities dealer, its Fair Market Value shall be established by the Administrator in good faith.
2.30 “Greater Than
10% Stockholder” shall mean an individual then owning (within the meaning of Section 424(d) of the Code) more than
10% of the total combined voting power of all classes of stock of the Company or any subsidiary corporation (as defined in Section 424(f) of
the Code) or parent corporation thereof (as defined in Section 424(e) of the Code).
2.31 “Holder”
shall mean a person who has been granted an Award.
2.32 “Incentive Stock
Option” shall mean an Option that is intended to qualify as an incentive stock option and conforms to the applicable provisions
of Section 422 of the Code.
2.33 “Non-Employee
Director” shall mean a Director of the Company who is not an Employee.
2.34 “Non-Employee
Director Equity Compensation Policy” shall have the meaning set forth in Section 4.6.
2.35 “Non-Qualified
Stock Option” shall mean an Option that is not an Incentive Stock Option.
2.36 “Option”
shall mean a right to purchase Shares at a specified exercise price, granted under Article 6. An Option shall be either a
Non-Qualified Stock Option or an Incentive Stock Option; provided, however, that Options granted to Non-Employee Directors
and Consultants shall only be Non-Qualified Stock Options.
2.37 “Option Term”
shall have the meaning set forth in Section 5.4.
2.38 “Parent”
shall mean any entity (other than the Company), whether domestic or foreign, in an unbroken chain of entities ending with the Company
if each of the entities other than the Company beneficially owns, at the time of the determination, securities or interests representing
at least fifty percent (50%) of the total combined voting power of all classes of securities or interests in one of the other entities
in such chain.
2.39 “Performance
Award” shall mean a cash bonus award, stock bonus award, performance award or incentive award that is paid in cash, Shares or
a combination of both, awarded under Section 9.1.
2.40 “Performance
Criteria” shall mean the criteria (and adjustments) that the Committee selects for an Award for purposes of establishing the
Performance Goal or Performance Goals for a Performance Period, determined as follows:
(a) The Performance Criteria
that shall be used to establish Performance Goals are limited to the following: (i) net earnings or losses (either before or after
one or more of the following: (A) interest, (B) taxes, (C) depreciation, (D) amortization; and (E) rent); and
(F) bonuses and related employer payroll taxes on such bonuses; (ii) gross or net sales or revenue; (iii) revenue growth
or product revenue growth; (iv) net income (either before or after taxes); (v) same-store sales; (vi) operating earnings
or profit (either before or after one or more of the following: (A) general and administrative expenses, (B) depreciation, (C) pre-opening
costs, (D) loss on disposal of property and equipment, (E) occupancy and related expenses; and (F) utilities; and (G) bonuses
and related employer payroll taxes on such bonuses); (vii) cash flow (including, but not limited to, operating cash flow and free
cash flow); (viii) return on assets or net assets; (ix) return on capital and cost of capital; (x) return on stockholders’
equity; (xi) total stockholder return; (xii) return on sales; (xiii) gross or net profit or operating margin; (xiv) costs,
reductions in costs and cost control measures; (xv) funds from operations or funds available for distributions; (xvi) expenses;
(xvii) working capital; (xviii) earnings or loss per share; (xix) adjusted pro forma earnings or loss per share; (xx) price
per share of Common Stock or appreciation in and/or maintenance of such price; (xxi) economic value added models or similar metrics;
(xxii) regulatory achievements or compliance (including, without limitation, regulatory body approval for commercialization of a
product); (xxiii) implementation or completion of critical projects or processes; (xxiv) sales or market share; (xxv) licensing
revenue; (xxvi) brand recognition/acceptance, (xxvii) inventory turns or cycle time and supply chain achievements (including,
without limitation, establishing relationships with manufacturers or suppliers of component materials and manufacturers of the Company’s
products), (xxviii) strategic initiatives (including, without limitation, with respect to market penetration, geographic business
expansion, manufacturing, commercialization, production and productivity, customer satisfaction and growth, employee satisfaction, recruitment
and maintenance of personnel, human resources management, supervision of litigation and other legal matters, information technology, strategic
partnerships and transactions (including acquisitions, dispositions, joint ventures, in-licensing and outlicensing of intellectual property,
and establishment of relationships with commercial entities with respect to the marketing, distribution and sale of Company products,
and factoring transactions, research and development and related activity, and financial or other capital raising transactions); (xxix) new
or existing store results and operations and new store openings; and (xxx) financial ratios (including, without limitation, those
measuring liquidity, activity, profitability or leverage), any of which may be measured either in absolute terms or as compared to any
incremental increase or decrease or as compared to results of a peer group or to market performance indicators or indices. Performance
Criteria shall be calculated in accordance with the Company’s financial statements or generally accepted accounting principles,
on an operating basis, or under a methodology established by the Committee prior to the issuance of an Award that is consistently applied
and identified.
(b) The Administrator,
in its sole discretion, may provide that one or more objectively determinable adjustments shall be made to one or more of the Performance
Goals. Such adjustments may include one or more of the following: (i) items related to a change in accounting principle; (ii) items
relating to financing activities; (iii) expenses for restructuring or productivity initiatives; (iv) other non-operating items;
(v) items related to acquisitions; (vi) items attributable to the business operations of any entity acquired by the Company
during the Performance Period; (vii) items related to the disposal of a business or segment of a business; (viii) items related
to discontinued operations that do not qualify as a segment of a business under Applicable Accounting Standards; (ix) items attributable
to any stock dividend, stock split, combination or exchange of stock occurring during the Performance Period; (x) any other items
of significant income or expense which are determined to be appropriate adjustments (including certain non-cash and other items not considered
in the Company’s evaluation of ongoing operating performance, including equity-based compensation expense, non-cash deferred rent
charges and certain non-recurring charges); (xi) items relating to unusual or extraordinary corporate transactions, events or developments,
(xii) items related to amortization of acquired intangible assets; (xiii) items that are outside the scope of the Company’s
core, on-going business activities; (xiv) items related to acquired in-process research and development; (xv) items relating
to changes in tax laws; (xvi) items relating to major licensing or partnership arrangements; (xvii) items relating to asset
impairment charges; (xviii) items relating to gains or losses for litigation, arbitration and contractual settlements; or (xix) items
relating to any other unusual or nonrecurring events or changes in Applicable Law, accounting principles or business conditions. For all
Awards intended to qualify as Performance-Based Compensation, such determinations shall be made within the time prescribed by, and otherwise
in compliance with, Section 162(m) of the Code.
2.41 “Performance
Goals” shall mean, for a Performance Period, one or more goals established in writing by the Administrator for the Performance
Period based upon one or more Performance Criteria. Depending on the Performance Criteria used to establish such Performance Goals, the
Performance Goals may be expressed in terms of overall Company performance or the performance of an Affiliate, division, business unit,
or an individual. The achievement of each Performance Goal shall be determined, to the extent applicable, with reference to Applicable
Accounting Standards.
2.42 “Performance
Period” shall mean one or more periods of time, which may be of varying and overlapping durations, as the Administrator may
select, over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Holder’s right
to, and the payment of, an Award.
2.43 “Performance
Stock Unit” shall mean a Performance Award awarded under Section 9.1 which is denominated in units of value including dollar
value of Shares.
2.44 “Permitted Transferee”
shall mean, with respect to a Holder, any “family member” of the Holder, as defined in the instructions to Form S-8 under
the Securities Act, after taking into account Applicable Law.
2.45 “Plan”
means the Shake Shack Inc. 2025 Incentive Award Plan, as amended from time to time (formerly referred to as the Shake Shack Inc. 2015
Incentive Award Plan).
2.46 “Program”
shall mean any program adopted by the Administrator pursuant to the Plan containing the terms and conditions intended to govern a specified
type of Award granted under the Plan and pursuant to which such type of Award may be granted under the Plan.
2.47 “Restricted
Stock” shall mean Common Stock awarded under Article 8 that is subject to certain restrictions and may be subject to risk
of forfeiture or repurchase.
2.48 “Restricted
Stock Units” shall mean the right to receive Shares awarded under Article 9.
2.49 “Securities
Act” shall mean the Securities Act of 1933, as amended.
2.50 “Share Limit”
shall have the meaning set forth in Section 3.1(a).
2.51 “Shares”
shall mean shares of Common Stock.
2.52 “Significant
Stockholder” shall mean any “person” or related “group” of “persons” (as such terms are
used in Sections 13(d) and 14(d)(2) of the Exchange Act) that holds 10% or more of the total combined voting power of all classes
of common stock of the Company.
2.53 “Stock Appreciation
Right” shall mean a stock appreciation right granted under Article 11.
2.54 “Stock Appreciation
Right Term” shall have the meaning set forth in Section 10.4.
2.55 “Stock Payment”
shall mean (a) a payment in the form of Shares, or (b) an option or other right to purchase Shares, as part of a bonus, deferred
compensation or other arrangement, awarded under Section 9.3.
2.56 “Subsidiary”
shall mean any entity (other than the Company), whether domestic or foreign, in an unbroken chain of entities beginning with the Company
if each of the entities other than the last entity in the unbroken chain beneficially owns, at the time of the determination, securities
or interests representing at least fifty percent (50%) of the total combined voting power of all classes of securities or interests in
one of the other entities in such chain.
2.57 “Substitute
Award” shall mean an Award granted under the Plan upon the assumption of, or in substitution for, outstanding equity awards
previously granted by a company or other entity in connection with a corporate transaction, such as a merger, combination, consolidation
or acquisition of property or stock; provided, however, that in no event shall the term “Substitute Award” be
construed to refer to an award made in connection with the cancellation and repricing of an Option or Stock Appreciation Right.
2.58 “Termination
of Service” shall mean:
(a) As to a Consultant,
the time when the engagement of a Holder as a Consultant to the Company or an Affiliate is terminated for any reason, with or without
cause, including, without limitation, by resignation, discharge, death or retirement, but excluding terminations where the Consultant
simultaneously commences or remains in employment or service with the Company or any Affiliate.
(b) As to a Non-Employee
Director, the time when a Holder who is a Non-Employee Director ceases to be a Director for any reason, including, without limitation,
a termination by resignation, failure to be elected, death or retirement, but excluding terminations where the Holder simultaneously commences
or remains in employment or service with the Company or any Affiliate.
(c) As to an Employee,
the time when the employee-employer relationship between a Holder and the Company or any Affiliate is terminated for any reason, including,
without limitation, a termination by resignation, discharge, death, disability or retirement; but excluding terminations where the Holder
simultaneously commences or remains in employment or service with the Company or any Affiliate.
The Administrator, in its sole discretion, shall
determine the effect of all matters and questions relating to any Termination of Service, including, without limitation, the question
of whether a Termination of Service resulted from a discharge for cause and all questions of whether particular leaves of absence constitute
a Termination of Service; provided, however, that, with respect to Incentive Stock Options, unless the Administrator otherwise
provides in the terms of the Program, the Award Agreement or otherwise, or as otherwise required by Applicable Law, a leave of absence,
change in status from an employee to an independent contractor or other change in the employee-employer relationship shall constitute
a Termination of Service only if, and to the extent that, such leave of absence, change in status or other change interrupts employment
for the purposes of Section 422(a)(2) of the Code and the then-applicable regulations and revenue rulings under said Section.
For purposes of the Plan, a Holder’s employee-employer relationship or consultancy relations shall be deemed to be terminated in
the event that the Affiliate employing or contracting with such Holder ceases to remain an Affiliate following any merger, sale of stock
or other corporate transaction or event (including, without limitation, a spin-off).
ARTICLE 3.
SHARES SUBJECT TO THE PLAN
3.1 Number of Shares.
(a) Subject to Sections
3.1(b) and 14.2, the aggregate number of Shares which may be issued or transferred pursuant to Awards under the Plan is
3,200,000 (the “Share Limit”). Notwithstanding the foregoing, to the extent permitted under applicable law and applicable
stock exchange rules, Awards that provide for the delivery of Shares subsequent to the applicable grant date may be granted in excess
of the Share Limit if such Awards provide for the forfeiture or cash settlement of such Awards to the extent that insufficient Shares
remain under the Share Limit at the time that Shares would otherwise be issued in respect of such Award.
(b) If any Shares subject
to an Award are forfeited or expire or such Award is settled in cash (in whole or in part), the Shares subject to such Award shall, to
the extent of such forfeiture, expiration or cash settlement, again be available for future grants of Awards under the Plan. Notwithstanding
anything to the contrary contained herein, the following Shares shall not be added to the Shares authorized for grant under Section 3.1(a) and
shall not be available for future grants of Awards: (i) Shares tendered by a Holder or withheld by the Company in payment of the
exercise price of an Option; (ii) Shares tendered by the Holder or withheld by the Company to satisfy any tax withholding obligation
with respect to an Option or Stock Appreciation Right; (iii) Shares subject to a Stock Appreciation Right that are not issued in
connection with the stock settlement of the Stock Appreciation Right on exercise thereof; and (iv) Shares purchased on the open market
with the cash proceeds from the exercise of Options. Any Shares repurchased by the Company under Section 7.4 at the same price paid
by the Holder so that such Shares are returned to the Company shall again be available for Awards. The payment of Dividend Equivalents
in cash in conjunction with any outstanding Awards shall not be counted against the Shares available for issuance under the Plan. Notwithstanding
the provisions of this Section 3.1(b), no Shares may again be optioned, granted or awarded if such action would cause an Incentive
Stock Option to fail to qualify as an incentive stock option under Section 422 of the Code.
(c) Substitute Awards shall
not reduce the Shares authorized for grant under the Plan. Additionally, in the event that a company acquired by the Company or any Affiliate
or with which the Company or any Affiliate combines has shares available under a pre-existing plan approved by stockholders and not adopted
in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as
adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition
or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination)
may be used for Awards under the Plan and shall not reduce the Shares authorized for grant under the Plan; provided that Awards
using such available Shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing
plan, absent the acquisition or combination, and shall only be made to individuals who were not employed by or providing services to the
Company or its Affiliates immediately prior to such acquisition or combination.
3.2 Stock Distributed.
Any Shares distributed pursuant to an Award may consist, in whole or in part, of authorized and unissued Common Stock, treasury Common
Stock or Common Stock purchased on the open market.
3.3 Limitation on Number
of Shares Subject to Awards. Notwithstanding any provision in the Plan to the contrary, and subject to Section 13.2, the
maximum aggregate number of Shares with respect to one or more Awards that may be granted to any one person during any calendar year shall
be 1,500,000 and the maximum aggregate amount that may be paid in cash to any one person during any calendar year with respect to one
or more Awards payable in cash shall be $7,500,000.
ARTICLE 4.
GRANTING OF AWARDS
4.1 Participation.
The Administrator may, from time to time, select from among all Eligible Individuals, those to whom an Award shall be granted and shall
determine the nature and amount of each Award, which shall not be inconsistent with the requirements of the Plan. Except as provided in
Section 4.6 regarding the grant of Awards pursuant to the Non-Employee Director Equity Compensation Policy, no Eligible Individual
shall have any right to be granted an Award pursuant to the Plan.
4.2 Award Agreement.
Each Award shall be evidenced by an Award Agreement that sets forth the terms, conditions and limitations for such Award, which may include
the term of the Award, the provisions applicable in the event of the Holder’s Termination of Service, and the Company’s authority
to unilaterally or bilaterally amend, modify, suspend, cancel or rescind an Award. Award Agreements evidencing Incentive Stock Options
shall contain such terms and conditions as may be necessary to meet the applicable provisions of Section 422 of the Code.
4.3 Limitations Applicable
to Section 16 Persons. Notwithstanding any other provision of the Plan, the Plan, and any Award granted or awarded to any individual
who is then subject to Section 16 of the Exchange Act, shall be subject to any additional limitations set forth in any applicable
exemptive rule under Section 16 of the Exchange Act (including Rule 16b-3 of the Exchange Act and any amendments thereto)
that are requirements for the application of such exemptive rule. To the extent permitted by Applicable Law, the Plan and Awards granted
or awarded hereunder shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.
4.4 At-Will Employment;
Voluntary Participation. Nothing in the Plan or in any Program or Award Agreement hereunder shall confer upon any Holder any right
to continue in the employ of, or as a Director or Consultant for, the Company or any Affiliate, or shall interfere with or restrict in
any way the rights of the Company and any Affiliate, which rights are hereby expressly reserved, to discharge any Holder at any time for
any reason whatsoever, with or without cause, and with or without notice, or to terminate or change all other terms and conditions of
employment or engagement, except to the extent expressly provided otherwise in a written agreement between the Holder and the Company
or any Affiliate. Participation by each Holder in the Plan shall be voluntary and nothing in the Plan shall be construed as mandating
that any Eligible Individual shall participate in the Plan.
4.5 Foreign Holders.
Notwithstanding any provision of the Plan to the contrary, in order to comply with the laws in countries other than the United States
in which the Company and its Affiliates operate or have Employees, Non-Employee Directors or Consultants, or in order to comply with the
requirements of any foreign securities exchange, the Administrator, in its sole discretion, shall have the power and authority to: (a) determine
which Affiliates shall be covered by the Plan; (b) determine which Eligible Individuals outside the United States are eligible to
participate in the Plan; (c) modify the terms and conditions of any Award granted to Eligible Individuals outside the United States
to comply with applicable foreign laws or listing requirements of any such foreign securities exchange; (d) establish subplans and
modify exercise procedures and other terms and procedures, to the extent such actions may be necessary or advisable (any such subplans
and/or modifications shall be attached to the Plan as appendices); provided, however, that no such subplans and/or modifications
shall increase the Share Limit, the Award Limit or the Director Limit; and (e) take any action, before or after an Award is made,
that it deems advisable to obtain approval or comply with any necessary local governmental regulatory exemptions or approvals or listing
requirements of any such foreign securities exchange. Notwithstanding the foregoing, the Administrator may not take any actions hereunder,
and no Awards shall be granted, that would violate Applicable Law. For purposes of the Plan, all references to foreign laws, rules, regulations
or taxes shall be references to the laws, rules, regulations and taxes of any applicable jurisdiction other than the United States or
a political subdivision thereof.
4.6 Non-Employee Director
Awards. The Administrator, in its sole discretion, may provide that Awards granted to Non-Employee Directors shall be granted pursuant
to a written nondiscretionary formula established by the Administrator (the “Non-Employee Director Equity Compensation Policy”),
subject to the limitations of the Plan. The Non-Employee Director Equity Compensation Policy shall set forth the type of Award(s) to
be granted to Non-Employee Directors, the number of Shares to be subject to Non-Employee Director Awards, the conditions on which such
Awards shall be granted, become exercisable and/or payable and expire, and such other terms and conditions as the Administrator shall
determine in its sole discretion. The Non-Employee Director Equity Compensation Policy may be modified by the Administrator from time
to time in its sole discretion. Notwithstanding any provision to the contrary in the Plan or in the Non-Employee Director Equity Compensation
Policy, the maximum aggregate grant date fair value of Awards granted to a Non-Employee Director during any calendar year shall be $500,000
(the “Director Limit”).
4.7 Stand-Alone and Tandem
Awards. Awards granted pursuant to the Plan may, in the sole discretion of the Administrator, be granted either alone, in addition
to, or in tandem with, any other Award granted pursuant to the Plan. Awards granted in addition to or in tandem with other Awards may
be granted either at the same time as or at a different time from the grant of such other Awards.
4.8 Minimum Purchase Price.
Notwithstanding any provision of the Plan to the contrary, if authorized but previously unissued Shares are issued under the Plan, such
Shares shall not be issued for a consideration which is less than permitted under Applicable Law.
4.9 Minimum Vesting Requirement.
Notwithstanding any provision of the Plan to the contrary, the vesting schedule for any Award granted under the Plan shall be no less
than one year.
ARTICLE 5.
GRANTING OF OPTIONS
5.1 Granting of Options
to Eligible Individuals. The Administrator is authorized to grant Options to Eligible Individuals from time to time, in its sole discretion,
on such terms and conditions as it may determine, which shall not be inconsistent with the Plan.
5.2 Qualification of Incentive
Stock Options. No Incentive Stock Option shall be granted to any person who is not an Employee of the Company or any “subsidiary
corporation” (as defined in Section 424(f) of the Code) of the Company. No person who qualifies as a Greater Than 10%
Stockholder may be granted an Incentive Stock Option unless such Incentive Stock Option conforms to the applicable provisions of Section 422
of the Code. Any Incentive Stock Option granted under the Plan may be modified by the Administrator, with the consent of the Holder, to
disqualify such Option from treatment as an “incentive stock option” under Section 422 of the Code. To the extent that
the aggregate Fair Market Value of stock with respect to which “incentive stock options” (within the meaning of Section 422
of the Code, but without regard to Section 422(d) of the Code) are exercisable for the first time by a Holder during any calendar
year under the Plan, and all other plans of the Company and any parent or subsidiary corporation thereof (each as defined in Section 424(e) and
424(f) of the Code, respectively), exceeds $100,000, the Options shall be treated as Non-Qualified Stock Options to the extent required
by Section 422 of the Code. The rule set forth in the immediately preceding sentence shall be applied by taking Options and
other “incentive stock options” into account in the order in which they were granted and the Fair Market Value of stock shall
be determined as of the time the respective options were granted.
5.3 Option Exercise Price.
The exercise price per Share subject to each Option shall be set by the Administrator, but shall not be less than 100% of the Fair Market
Value of a Share on the date the Option is granted (or, as to Incentive Stock Options, on the date the Option is modified, extended or
renewed for purposes of Section 424(h) of the Code). In addition, in the case of Incentive Stock Options granted to a Greater
Than 10% Stockholder, such price shall not be less than 110% of the Fair Market Value of a Share on the date the Option is granted (or
the date the Option is modified, extended or renewed for purposes of Section 424(h) of the Code). Notwithstanding the foregoing,
an outstanding Option may not be modified to reduce the exercise price thereof nor may a new Option at a lower price or any other Award
or cash be substituted for a surrendered Option unless such action is approved by the stockholders of the Company.
5.4 Option Term. The
term of each Option (the “Option Term”) shall be set by the Administrator in its sole discretion; provided,
however, that the Option Term shall not be more than ten (10) years from the date the Option is granted, or five (5) years
from the date an Incentive Stock Option is granted to a Greater Than 10% Stockholder. The Administrator shall determine the time period,
including the time period following a Termination of Service, during which the Holder has the right to exercise the vested Options, which
time period may not extend beyond the last day of the Option Term. Except as limited by the requirements of Section 409A or Section 422
of the Code and regulations and rulings thereunder or the first sentence of this Section 5.4, the Administrator may extend the Option
Term of any outstanding Option, and may extend the time period during which vested Options may be exercised, in connection with any Termination
of Service of the Holder, and may amend, subject to Section 13.1, any other term or condition of such Option relating to such
a Termination of Service.
5.5 Option Vesting.
(a) The period during which
the right to exercise, in whole or in part, an Option vests in the Holder shall be set by the Administrator and the Administrator may
determine that an Option may not be exercised in whole or in part for a specified period after it is granted. Such vesting may be based
on service with the Company or any Affiliate, any of the Performance Criteria, or any other criteria selected by the Administrator, and,
except as limited by the Plan, at any time after the grant of an Option, the Administrator, in its sole discretion and subject to whatever
terms and conditions it selects, may accelerate the period during which an Option vests.
(b) No portion of an Option
which is unexercisable at a Holder’s Termination of Service shall thereafter become exercisable, except as may be otherwise provided
by the Administrator either in the applicable Program, the Award Agreement evidencing the grant of an Option, or by action of the Administrator
following the grant of the Option. Unless otherwise determined by the Administrator in the Award Agreement or by action of the Administrator
following the grant of the Option, the portion of an Option that is unexercisable at a Holder’s Termination of Service shall automatically
expire thirty (30) days following such Termination of Service.
5.6 Substitute Awards.
Notwithstanding the foregoing provisions of this Article 6 to the contrary, in the case of an Option that is a Substitute Award,
the price per share of the Shares subject to such Option may be less than the Fair Market Value per share on the date of grant; provided
that the excess of: (a) the aggregate Fair Market Value (as of the date such Substitute Award is granted) of the Shares subject to
the Substitute Award, over (b) the aggregate exercise price thereof does not exceed the excess of: (x) the aggregate fair market
value (as of the time immediately preceding the transaction giving rise to the Substitute Award, such fair market value to be determined
by the Administrator) of the shares of the predecessor entity that were subject to the grant assumed or substituted for by the Company,
over (y) the aggregate exercise price of such shares.
5.7 Substitution of Stock
Appreciation Rights. The Administrator may provide in the applicable Program or the Award Agreement evidencing the grant of an Option
that the Administrator, in its sole discretion, shall have the right to substitute a Stock Appreciation Right for such Option at any time
prior to or upon exercise of such Option; provided that such Stock Appreciation Right shall be exercisable with respect to the
same number of Shares for which such substituted Option would have been exercisable, and shall also have the same exercise price, vesting
schedule and remaining Option Term as the substituted Option.
ARTICLE 6.
EXERCISE OF OPTIONS
6.1 Partial Exercise.
An exercisable Option may be exercised in whole or in part. However, an Option shall not be exercisable with respect to fractional Shares
and the Administrator may require that, by the terms of the Option, a partial exercise must be with respect to a minimum number of Shares.
6.2 Expiration of Option
Term: Automatic Exercise of In-The-Money Options. Unless otherwise provided by the Administrator (in an Award Agreement or otherwise)
or as otherwise directed by an Option Holder in writing to the Company, each vested and exercisable Option outstanding on the Automatic
Exercise Date with an exercise price per share that is less than the Fair Market Value per Share as of such date shall automatically and
without further action by the Option Holder or the Company be exercised on the Automatic Exercise Date. In the sole discretion of the
Administrator, payment of the exercise price of any such Option shall be made pursuant to Section 11.1(b) or 11.1(c) and
the Company or any Affiliate shall deduct or withhold an amount sufficient to satisfy all taxes associated with such exercise in accordance
with Section 11.2. Unless otherwise determined by the Administrator, this Section 6.2 shall not apply to an Option
if the Holder of such Option incurs a Termination of Service on or before the Automatic Exercise Date. For the avoidance of doubt, no
Option with an exercise price per Share that is equal to or greater than the Fair Market Value per Share on the Automatic Exercise Date
shall be exercised pursuant to this Section 6.2.
6.3 Manner of Exercise.
All or a portion of an exercisable Option shall be deemed exercised upon delivery of all of the following to the Secretary of the Company,
the stock administrator of the Company or such other person or entity designated by the Administrator, or his, her or its office, as applicable:
(a) A written or electronic
notice complying with the applicable rules established by the Administrator stating that the Option, or a portion thereof, is exercised.
The notice shall be signed by the Holder or other person then entitled to exercise the Option or such portion of the Option;
(b) Such representations
and documents as the Administrator, in its sole discretion, deems necessary or advisable to effect compliance with Applicable Law. The
Administrator, in its sole discretion, may also take whatever additional actions it deems appropriate to effect such compliance including,
without limitation, placing legends on share certificates and issuing stop-transfer notices to agents and registrars;
(c) In the event that the
Option shall be exercised pursuant to Section 11.3 by any person or persons other than the Holder, appropriate proof of the
right of such person or persons to exercise the Option, as determined in the sole discretion of the Administrator; and
(d) Full payment of the
exercise price and applicable withholding taxes to the stock administrator of the Company for the Shares with respect to which the Option,
or portion thereof, is exercised, in a manner permitted by Sections 11.1 and 11.2.
7.4 Notification Regarding
Disposition. The Holder shall give the Company prompt written or electronic notice of any disposition of Shares acquired by exercise
of an Incentive Stock Option which occurs within (a) two years from the date of granting (including the date the Option is modified,
extended or renewed for purposes of Section 424(h) of the Code) such Option to such Holder, or (b) one year after the transfer
of such Shares to such Holder.
ARTICLE 7.
AWARD OF RESTRICTED STOCK
7.1 Award of Restricted
Stock.
(a) The Administrator is
authorized to grant Restricted Stock to Eligible Individuals, and shall determine the terms and conditions, including the restrictions
applicable to each award of Restricted Stock, which terms and conditions shall not be inconsistent with the Plan, and may impose such
conditions on the issuance of such Restricted Stock as it deems appropriate.
(b) The Administrator shall
establish the purchase price, if any, and form of payment for Restricted Stock; provided, however, that if a purchase price
is charged, such purchase price shall be no less than the par value, if any, of the Shares to be purchased, unless otherwise permitted
by Applicable Law. In all cases, legal consideration shall be required for each issuance of Restricted Stock.
7.2 Rights as Stockholders.
Subject to Section 7.4, upon issuance of Restricted Stock, the Holder shall have, unless otherwise provided by the Administrator,
all the rights of a stockholder with respect to said Shares, subject to the restrictions in the applicable Program or in each individual
Award Agreement, including the right to receive all dividends and other distributions paid or made with respect to the Shares; provided,
however, that, in the sole discretion of the Administrator, any extraordinary distributions with respect to the Shares shall be
subject to the restrictions set forth in Section 7.3. In addition, with respect to a share of Restricted Stock with performance-based
vesting, dividends which are paid prior to vesting shall only be paid out to the Holder to the extent that the performance-based vesting
conditions are subsequently satisfied and the share of Restricted Stock vests.
7.3 Restrictions. All
shares of Restricted Stock (including any shares received by Holders thereof with respect to shares of Restricted Stock as a result of
stock dividends, stock splits or any other form of recapitalization) shall, in the terms of the applicable Program or in each individual
Award Agreement, be subject to such restrictions and vesting requirements as the Administrator shall provide. Such restrictions may include,
without limitation, restrictions concerning voting rights and transferability and such restrictions may lapse separately or in combination
at such times and pursuant to such circumstances or based on such criteria as selected by the Administrator, including, without limitation,
criteria based on the Holder’s duration of employment, directorship or consultancy with the Company, the Performance Criteria, Company
performance, individual performance or other criteria selected by the Administrator. By action taken after the Restricted Stock is issued,
the Administrator may, on such terms and conditions as it may determine to be appropriate, accelerate the vesting of such Restricted Stock
by removing any or all of the restrictions imposed by the terms of the applicable Program or Award Agreement. Restricted Stock may not
be sold or encumbered until all restrictions are terminated or expire.
7.4 Repurchase or Forfeiture
of Restricted Stock. Except as otherwise determined by the Administrator at the time of the grant of the Award or thereafter, if no
price was paid by the Holder for the Restricted Stock, upon a Termination of Service during the applicable restriction period, the Holder’s
rights in unvested Restricted Stock then subject to restrictions shall lapse, and such Restricted Stock shall be surrendered to the Company
and cancelled without consideration. If a price was paid by the Holder for the Restricted Stock, upon a Termination of Service during
the applicable restriction period, the Company shall have the right to repurchase from the Holder the unvested Restricted Stock then subject
to restrictions at a cash price per share equal to the price paid by the Holder for such Restricted Stock or such other amount as may
be specified in the applicable Program or Award Agreement. Notwithstanding the foregoing, the Administrator, in its sole discretion, may
provide that upon certain events, including a Change in Control, the Holder’s death, retirement or disability or any other specified
Termination of Service or any other event, the Holder’s rights in unvested Restricted Stock shall not lapse, such Restricted Stock
shall vest and, if applicable, the Company shall not have a right of repurchase.
7.5 Certificates for Restricted
Stock. Restricted Stock granted pursuant to the Plan may be evidenced in such manner as the Administrator shall determine. Certificates
or book entries evidencing shares of Restricted Stock shall include an appropriate legend referring to the terms, conditions, and restrictions
applicable to such Restricted Stock. The Company, in its sole discretion, may (a) retain physical possession of any stock certificate
evidencing shares of Restricted Stock until the restrictions thereon shall have lapsed and/or (b) require that the stock certificates
evidencing shares of Restricted Stock be held in custody by a designated escrow agent (which may but need not be the Company) until the
restrictions thereon shall have lapsed, and that the Holder deliver a stock power, endorsed in blank, relating to such Restricted Stock.
7.6 Section 83(b) Election.
If a Holder makes an election under Section 83(b) of the Code to be taxed with respect to the Restricted Stock as of the date
of transfer of the Restricted Stock rather than as of the date or dates upon which the Holder would otherwise be taxable under Section 83(a) of
the Code, the Holder shall be required to deliver a copy of such election to the Company promptly after filing such election with the
Internal Revenue Service along with proof of the timely filing thereof with the Internal Revenue Service.
ARTICLE 8.
AWARD OF RESTRICTED STOCK UNITS
8.1 Grant of Restricted
Stock Units. The Administrator is authorized to grant Awards of Restricted Stock Units to any Eligible Individual selected by the
Administrator in such amounts and subject to such terms and conditions as determined by the Administrator.
8.2 Term. Except as
otherwise provided herein, the term of a Restricted Stock Unit award shall be set by the Administrator in its sole discretion.
8.3 Purchase Price.
The Administrator shall specify the purchase price, if any, to be paid by the Holder to the Company with respect to any Restricted Stock
Unit award; provided, however, that value of the consideration shall not be less than the par value of a Share, unless otherwise
permitted by Applicable Law.
8.4 Vesting of Restricted
Stock Units. At the time of grant, the Administrator shall specify the date or dates on which the Restricted Stock Units shall become
fully vested and nonforfeitable, and may specify such conditions to vesting as it deems appropriate, including, without limitation, vesting
based upon the Holder’s duration of service to the Company or any Affiliate, one or more Performance Criteria, Company performance,
individual performance or other specific criteria, in each case on a specified date or dates or over any period or periods, as determined
by the Administrator.
8.5 Maturity and Payment.
At the time of grant, the Administrator shall specify the maturity date applicable to each grant of Restricted Stock Units, which shall
be no earlier than the vesting date or dates of the Award and may be determined at the election of the Holder (if permitted by the applicable
Award Agreement); provided that, except as otherwise determined by the Administrator, set forth in any applicable Award Agreement,
and subject to compliance with Section 409A of the Code, in no event shall the maturity date relating to each Restricted Stock Unit
occur following the later of (a) the 15th day of the third month following the end of calendar year in which the applicable portion
of the Restricted Stock Unit vests; or (b) the 15th day of the third month following the end of the Company’s fiscal year in
which the applicable portion of the Restricted Stock Unit vests. On the maturity date, the Company shall, subject to Section 11.4(e),
transfer to the Holder one unrestricted, fully transferable Share for each Restricted Stock Unit scheduled to be paid out on such date
and not previously forfeited, or in the sole discretion of the Administrator, an amount in cash equal to the Fair Market Value of such
Shares on the maturity date or a combination of cash and Common Stock as determined by the Administrator.
8.6 Payment upon Termination
of Service. An Award of Restricted Stock Units shall only be payable while the Holder is an Employee, a Consultant or a member of
the Board, as applicable; provided, however, that the Administrator, in its sole discretion, may provide (in an Award Agreement
or otherwise) that a Restricted Stock Unit award may be paid subsequent to a Termination of Service in certain events, including a Change
in Control, the Holder’s death, retirement or disability or any other specified Termination of Service.
8.7 No Rights as a Stockholder.
Unless otherwise determined by the Administrator, a Holder of Restricted Stock Units shall possess no incidents of ownership with respect
to the Shares represented by such Restricted Stock Units, unless and until such Shares are transferred to the Holder pursuant to the terms
of this Plan and the applicable Award Agreement.
8.8 Dividend Equivalents.
Subject to Section 9.2, the Administrator, in its sole discretion, may provide that Dividend Equivalents shall be earned by
a Holder of Restricted Stock Units based on dividends declared on the Common Stock, to be credited as of dividend payment dates during
the period between the date an Award of Restricted Stock Units is granted to a Holder and the maturity date of such Award.
ARTICLE 9.
AWARD OF PERFORMANCE AWARDS, DIVIDEND EQUIVALENTS,
STOCK PAYMENTS, DEFERRED STOCK, DEFERRED STOCK UNITS
9.1 Performance Awards.
(a) The Administrator is
authorized to grant Performance Awards, including Awards of Performance Stock Units, to any Eligible Individual. The value of Performance
Awards, including Performance Stock Units, may be linked to any one or more of the Performance Criteria or other specific criteria determined
by the Administrator, in each case on a specified date or dates or over any period or periods and in such amounts as may be determined
by the Administrator. Performance Awards, including Performance Stock Unit awards may be paid in cash, Shares, or a combination of cash
and Shares, as determined by the Administrator.
(b) Without limiting Section 9.1(a),
the Administrator may grant Performance Awards to any Eligible Individual in the form of a cash bonus payable upon the attainment of objective
Performance Goals, or such other criteria, whether or not objective, which are established by the Administrator, in each case on a specified
date or dates or over any period or periods determined by the Administrator.
9.2 Dividend Equivalents.
(a) Dividend Equivalents
may be granted by the Administrator based on dividends declared on the Common Stock, to be credited as of dividend payment dates with
respect to dividends with record dates that occur during the period between the date an Award is granted to a Holder and the date such
Award vests, is exercised, is distributed or expires, as determined by the Administrator. Such Dividend Equivalents shall be converted
to cash or additional Shares by such formula and at such time and subject to such restrictions and limitations as may be determined by
the Administrator. In addition, Dividend Equivalents with respect to an Award with performance-based vesting that are based on dividends
paid prior to the vesting of such Award shall only be paid out to the Holder to the extent that the performance-based vesting conditions
are subsequently satisfied and the Award vests.
(b) Notwithstanding the
foregoing, no Dividend Equivalents shall be payable with respect to Options or Stock Appreciation Rights.
9.3 Stock Payments.
The Administrator is authorized to make Stock Payments to any Eligible Individual. The number or value of Shares of any Stock Payment
shall be determined by the Administrator and may be based upon one or more Performance Criteria or any other specific criteria, including
service to the Company or any Affiliate, determined by the Administrator. Shares underlying a Stock Payment which is subject to a vesting
schedule or other conditions or criteria set by the Administrator shall not be issued until those conditions have been satisfied. Unless
otherwise provided by the Administrator, a Holder of a Stock Payment shall have no rights as a Company stockholder with respect to such
Stock Payment until such time as the Stock Payment has vested and the Shares underlying the Award have been issued to the Holder. Stock
Payments may, but are not required to, be made in lieu of base salary, bonus, fees or other cash compensation otherwise payable to such
Eligible Individual.
9.4 Deferred Stock.
The Administrator is authorized to grant Deferred Stock to any Eligible Individual. The number of shares of Deferred Stock shall be determined
by the Administrator and may (but is not required to) be based on one or more Performance Criteria or other specific criteria, including
service to the Company or any Affiliate, as the Administrator determines, in each case on a specified date or dates or over any period
or periods determined by the Administrator. Shares underlying a Deferred Stock award which is subject to a vesting schedule or other conditions
or criteria set by the Administrator shall be issued on the vesting date(s) or date(s) that those conditions and criteria have
been satisfied, as applicable. Unless otherwise provided by the Administrator, a Holder of Deferred Stock shall have no rights as a Company
stockholder with respect to such Deferred Stock until such time as the Award has vested and any other applicable conditions and/or criteria
have been satisfied and the Shares underlying the Award have been issued to the Holder.
9.5 Deferred Stock Units.
The Administrator is authorized to grant Deferred Stock Units to any Eligible Individual. The number of Deferred Stock Units shall be
determined by the Administrator and may (but is not required to) be based on one or more Performance Criteria or other specific criteria,
including service to the Company or any Affiliate, as the Administrator determines, in each case on a specified date or dates or over
any period or periods determined by the Administrator. Each Deferred Stock Unit shall entitle the Holder thereof to receive one Share
on the date the Deferred Stock Unit becomes vested or upon a specified settlement date thereafter (which settlement date may (but is not
required to) be the date of the Holder’s Termination of Service). Shares underlying a Deferred Stock Unit award which is subject
to a vesting schedule or other conditions or criteria set by the Administrator shall not be issued until on or following the date that
those conditions and criteria have been satisfied. Unless otherwise provided by the Administrator, a Holder of Deferred Stock Units shall
have no rights as a Company stockholder with respect to such Deferred Stock Units until such time as the Award has vested and any other
applicable conditions and/or criteria have been satisfied and the Shares underlying the Award have been issued to the Holder.
9.6 Term. The term
of a Performance Award, Dividend Equivalent award, Stock Payment award, Deferred Stock award and/or Deferred Stock Unit award shall be
established by the Administrator in its sole discretion.
9.7 Purchase Price.
The Administrator may establish the purchase price of a Performance Award, Shares distributed as a Stock Payment award, shares of Deferred
Stock or Shares distributed pursuant to a Deferred Stock Unit award; provided, however, that value of the consideration
shall not be less than the par value of a Share, unless otherwise permitted by Applicable Law.
9.8 Termination of Service.
A Performance Award, Stock Payment award, Dividend Equivalent award, Deferred Stock award and/or Deferred Stock Unit award is distributable
only while the Holder is an Employee, Director or Consultant, as applicable. The Administrator, however, in its sole discretion, may provide
that the Performance Award, Dividend Equivalent award, Stock Payment award, Deferred Stock award and/or Deferred Stock Unit award may
be distributed subsequent to a Termination of Service in certain events, including a Change in Control, the Holder’s death, retirement
or disability or any other specified Termination of Service.
ARTICLE 10.
AWARD OF STOCK APPRECIATION RIGHTS
10.1 Grant of Stock Appreciation Rights.
(a) The Administrator is
authorized to grant Stock Appreciation Rights to Eligible Individuals from time to time, in its sole discretion, on such terms and conditions
as it may determine, which shall not be inconsistent with the Plan.
(b) A Stock Appreciation
Right shall entitle the Holder (or other person entitled to exercise the Stock Appreciation Right pursuant to the Plan) to exercise all
or a specified portion of the Stock Appreciation Right (to the extent then exercisable pursuant to its terms) and to receive from the
Company an amount determined by multiplying the difference obtained by subtracting the exercise price per share of the Stock Appreciation
Right from the Fair Market Value on the date of exercise of the Stock Appreciation Right by the number of Shares with respect to which
the Stock Appreciation Right shall have been exercised, subject to any limitations the Administrator may impose. Except as described in
(c) below, the exercise price per Share subject to each Stock Appreciation Right shall be set by the Administrator, but shall not
be less than 100% of the Fair Market Value on the date the Stock Appreciation Right is granted.
(c) Notwithstanding the
foregoing provisions of Section 10.1(b) to the contrary, in the case of a Stock Appreciation Right that is a Substitute
Award, the exercise price per share of the Shares subject to such Stock Appreciation Right may be less than 100% of the Fair Market Value
per share on the date of grant; provided that the excess of: (i) the aggregate Fair Market Value (as of the date such Substitute
Award is granted) of the Shares subject to the Substitute Award, over (ii) the aggregate exercise price thereof does not exceed the
excess of: (x) the aggregate fair market value (as of the time immediately preceding the transaction giving rise to the Substitute
Award, such fair market value to be determined by the Administrator) of the shares of the predecessor entity that were subject to the
grant assumed or substituted for by the Company, over (y) the aggregate exercise price of such shares.
10.2 Stock Appreciation
Right Vesting.
(a) The period during which
the right to exercise, in whole or in part, a Stock Appreciation Right vests in the Holder shall be set by the Administrator and the Administrator
may determine that a Stock Appreciation Right may not be exercised in whole or in part for a specified period after it is granted. Such
vesting may be based on service with the Company or any Affiliate, any of the Performance Criteria, or any other criteria selected by
the Administrator. Except as limited by the Plan, at any time after grant of a Stock Appreciation Right, the Administrator, in its sole
discretion and subject to whatever terms and conditions it selects, may accelerate the period during which a Stock Appreciation Right
vests.
(b) No portion of a Stock
Appreciation Right which is unexercisable at a Holder’s Termination of Service shall thereafter become exercisable, except as may
be otherwise provided by the Administrator in the applicable Program, the Award Agreement evidencing the grant of a Stock Appreciation
Right, or by action of the Administrator following the grant of the Stock Appreciation Right.
10.3 Manner of Exercise.
All or a portion of an exercisable Stock Appreciation Right shall be deemed exercised upon delivery of all of the following to the Secretary
of the Company, the stock administrator of the Company, or such other person or entity designated by the Administrator, or his, her or
its office, as applicable:
(a) A written or electronic
notice complying with the applicable rules established by the Administrator stating that the Stock Appreciation Right, or a portion
thereof, is exercised. The notice shall be signed by the Holder or other person then entitled to exercise the Stock Appreciation Right
or such portion of the Stock Appreciation Right;
(b) Such representations
and documents as the Administrator, in its sole discretion, deems necessary or advisable to effect compliance with Applicable Law. The
Administrator, in its sole discretion, may also take whatever additional actions it deems appropriate to effect such compliance, including,
without limitation, placing legends on share certificates and issuing stop-transfer notices to agents and registrars;
(c) In the event that the
Stock Appreciation Right shall be exercised pursuant to this Section 10.3 by any person or persons other than the Holder, appropriate
proof of the right of such person or persons to exercise the Stock Appreciation Right, as determined in the sole discretion of the Administrator;
and
(d) Full payment of the
applicable withholding taxes to the stock administrator of the Company for the Shares with respect to which the Stock Appreciation Right,
or portion thereof, is exercised, in a manner permitted by Sections 11.1 and 11.2.
10.4 Stock Appreciation
Right Term. The term of each Stock Appreciation Right (the “Stock Appreciation Right Term”) shall be set by the
Administrator in its sole discretion; provided, however, that the Stock Appreciation Right Term shall not be more than ten
(10) years from the date the Stock Appreciation Right is granted. The Administrator shall determine the time period, including the
time period following a Termination of Service, during which the Holder has the right to exercise the vested Stock Appreciation Rights,
which time period may not extend beyond the last day of the Stock Appreciation Right Term applicable to such Stock Appreciation Right.
Except as limited by the requirements of Section 409A of the Code and regulations and rulings thereunder or the first sentence of
this Section 10.4, the Administrator may extend the Stock Appreciation Right Term of any outstanding Stock Appreciation Right,
and may extend the time period during which vested Stock Appreciation Rights may be exercised, in connection with any Termination of Service
of the Holder, and may amend, subject to Section 13.1, any other term or condition of such Stock Appreciation Right relating
to such a Termination of Service.
10.5 Payment. Payment
of the amounts payable with respect to Stock Appreciation Rights pursuant to this Article 11 shall be in cash, Shares (based
on its Fair Market Value as of the date the Stock Appreciation Right is exercised), or a combination of both, as determined by the Administrator.
10.6 Expiration of Stock
Appreciation Right Term: Automatic Exercise of In-The-Money Stock Appreciation Rights. Unless otherwise provided by the Administrator
(in an Award Agreement or otherwise) or as otherwise directed by a Stock Appreciation Right Holder in writing to the Company, each vested
and exercisable Stock Appreciation Right outstanding on the Automatic Exercise Date with an exercise price per share that is less than
the Fair Market Value per Share as of such date shall automatically and without further action by the Stock Appreciation Right Holder
or the Company be exercised on the Automatic Exercise Date. In the sole discretion of the Administrator, the Company or any Affiliate
shall deduct or withhold an amount sufficient to satisfy all taxes associated with such exercise in accordance with Section 11.2.
Unless otherwise determined by the Administrator, this Section 10.6 shall not apply to a Stock Appreciation Right if the Stock
Appreciation Right Holder incurs a Termination of Service on or before the Automatic Exercise Date. For the avoidance of doubt, no Stock
Appreciation Right with an exercise price per share that is equal to or greater than the Fair Market Value per Share on the Automatic
Exercise Date shall be exercised pursuant to this Section 10.6.
ARTICLE 11.
ADDITIONAL TERMS OF AWARDS
11.1 Payment. The Administrator
shall determine the methods by which payments by any Holder with respect to any Awards granted under the Plan shall be made, including,
without limitation: (a) cash or check, (b) Shares (including, in the case of payment of the exercise price of an Award, Shares
issuable pursuant to the exercise of the Award) or Shares held for such period of time as may be required by the Administrator in order
to avoid adverse accounting consequences, in each case, having a Fair Market Value on the date of delivery equal to the aggregate payments
required, (c) delivery of a written or electronic notice that the Holder has placed a market sell order with a broker acceptable
to the Company with respect to Shares then issuable upon exercise or vesting of an Award, and that the broker has been directed to pay
a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the aggregate payments required; provided
that payment of such proceeds is then made to the Company upon settlement of such sale, or (d) other form of legal consideration
acceptable to the Administrator in its sole discretion. The Administrator shall also determine the methods by which Shares shall be delivered
or deemed to be delivered to Holders. Notwithstanding any other provision of the Plan to the contrary, no Holder who is a Director or
an “executive officer” of the Company within the meaning of Section 13(k) of the Exchange Act shall be permitted
to make payment with respect to any Awards granted under the Plan, or continue any extension of credit with respect to such payment, with
a loan from the Company or a loan arranged by the Company in violation of Section 13(k) of the Exchange Act.
11.2 Tax Withholding.
The Company or any Affiliate shall have the authority and the right to deduct or withhold, or require a Holder to remit to the Company,
an amount sufficient to satisfy federal, state, local and foreign taxes (including the Holder’s FICA, employment tax or other social
security contribution obligation) required by law to be withheld with respect to any taxable event concerning a Holder arising as a result
of the Plan. The Administrator, in its sole discretion and in satisfaction of the foregoing requirement, may withhold, or allow a Holder
to elect to have the Company withhold, Shares otherwise issuable under an Award (or allow the surrender of Shares). The number of Shares
which may be so withheld or surrendered shall be limited to the number of Shares which have a fair market value on the date of withholding
or repurchase equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal, state, local
and foreign income tax and payroll tax purposes that are applicable to such supplemental taxable income. The Administrator shall determine
the fair market value of the Shares, consistent with applicable provisions of the Code, for tax withholding obligations due in connection
with a broker-assisted cashless Option or Stock Appreciation Right exercise involving the sale of Shares to pay the Option or Stock Appreciation
Right exercise price or any tax withholding obligation.
11.3 Transferability of Awards.
(a) Except as otherwise
provided in Sections 11.3(b) and 11.3(c):
(i) No Award under the
Plan may be sold, pledged, assigned or transferred in any manner other than by will or the laws of descent and distribution or, subject
to the consent of the Administrator, pursuant to a DRO, unless and until such Award has been exercised, or the Shares underlying such
Award have been issued, and all restrictions applicable to such Shares have lapsed;
(ii) No Award or interest
or right therein shall be liable for the debts, contracts or engagements of the Holder or the Holder’s successors in interest or
shall be subject to disposition by transfer, alienation, anticipation, pledge, hypothecation, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect, except
to the extent that such disposition is permitted by Section 11.3(a)(i); and
(iii) During the lifetime
of the Holder, only the Holder may exercise an Award (or any portion thereof) granted to such Holder under the Plan, unless it has been
disposed of pursuant to a DRO; after the death of the Holder, any exercisable portion of an Award may, prior to the time when such portion
becomes unexercisable under the Plan or the applicable Program or Award Agreement, be exercised by the Holder’s personal representative
or by any person empowered to do so under the deceased Holder’s will or under the then-applicable laws of descent and distribution.
(b) Notwithstanding Section 11.3(a),
the Administrator, in its sole discretion, may determine to permit a Holder to transfer an Award other than an Incentive Stock Option
to any one or more Permitted Transferees, subject to the following terms and conditions: (i) an Award transferred to a Permitted
Transferee shall not be assignable or transferable by the Permitted Transferee other than by will or the laws of descent and distribution
or pursuant to a DRO; (ii) an Award transferred to a Permitted Transferee shall continue to be subject to all the terms and conditions
of the Award as applicable to the original Holder (other than the ability to further transfer the Award); (iii) the Holder and the
Permitted Transferee shall execute any and all documents requested by the Administrator, including, without limitation documents to (A) confirm
the status of the transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the transfer under Applicable
Law and (C) evidence the transfer; and (iv) any transfer of an Award to a Permitted Transferee shall be without consideration,
except as required by applicable Law.
(c) Notwithstanding Section 11.3(a),
a Holder may, in the manner determined by the Administrator, designate a beneficiary to exercise the rights of the Holder and to receive
any distribution with respect to any Award upon the Holder’s death. A beneficiary, legal guardian, legal representative, or other
person claiming any rights pursuant to the Plan is subject to all terms and conditions of the Plan and any Program or Award Agreement
applicable to the Holder, except to the extent the Plan, the Program and the Award Agreement otherwise provide, and to any additional
restrictions deemed necessary or appropriate by the Administrator. If the Holder is married or a domestic partner in a domestic partnership
qualified under Applicable Law and resides in a community property state, a designation of a person other than the Holder’s spouse
or domestic partner, as applicable, as the Holder’s beneficiary with respect to more than 50% of the Holder’s interest in
the Award shall not be effective without the prior written or electronic consent of the Holder’s spouse or domestic partner. If
no beneficiary has been designated or survives the Holder, payment shall be made to the person entitled thereto pursuant to the Holder’s
will or the laws of descent and distribution. Subject to the foregoing, a beneficiary designation may be changed or revoked by a Holder
at any time; provided that the change or revocation is filed with the Administrator prior to the Holder’s death.
11.4 Conditions to Issuance
of Shares.
(a) Notwithstanding anything
herein to the contrary, the Company shall not be required to issue or deliver any certificates or make any book entries evidencing Shares
pursuant to the exercise of any Award, unless and until the Board or the Committee has determined, with advice of counsel, that the issuance
of such Shares is in compliance with Applicable Law and the Shares are covered by an effective registration statement or applicable exemption
from registration. In addition to the terms and conditions provided herein, the Board or the Committee may require that a Holder make
such reasonable covenants, agreements and representations as the Board or the Committee, in its sole discretion, deems advisable in order
to comply with Applicable Law.
(b) All share certificates
delivered pursuant to the Plan and all Shares issued pursuant to book entry procedures are subject to any stop-transfer orders and other
restrictions as the Administrator deems necessary or advisable to comply with Applicable Law. The Administrator may place legends on any
share certificate or book entry to reference restrictions applicable to the Shares.
(c) The Administrator shall
have the right to require any Holder to comply with any timing or other restrictions with respect to the settlement, distribution or exercise
of any Award, including a window-period limitation, as may be imposed in the sole discretion of the Administrator.
(d) No fractional Shares
shall be issued and the Administrator, in its sole discretion, shall determine whether cash shall be given in lieu of fractional Shares
or whether such fractional Shares shall be eliminated by rounding down.
(e) Notwithstanding any
other provision of the Plan, unless otherwise determined by the Administrator or required by Applicable Law, the Company shall not deliver
to any Holder certificates evidencing Shares issued in connection with any Award and instead such Shares shall be recorded in the books
of the Company (or, as applicable, its transfer agent or stock plan administrator).
11.5 Clawback Provisions.
Notwithstanding any other provisions of the Plan to the contrary, Awards granted pursuant to the Plan are subject to (i) the Company’s
Dodd-Frank Clawback Policy and (ii) any other clawback or recoupment policy approved by the Board or Committee (or other committee
of the Board with authority delegated by the Board to approve such policy) from time to time, to the extent each is applicable to the
Eligible Individual and/or any other Company recoupment policies or procedures that may be required under applicable law or otherwise
adopted by the Company or incorporated into any other part of an Award (collectively, the “Clawback Policies”). The
Eligible Individual’s execution or acceptance of an Award shall constitute the Eligible Individual’s acknowledgement that
the Eligible Individual is subject to the Clawback Policies (as applicable) and that such Eligible Individual’s Award may be subject
to recoupment to the extent provided in such Clawback Policies. Nothing herein shall be construed as limiting any right of the Company
to impose additional restrictions or other conditions with respect to an Award.
11.6 Prohibition on Repricing.
Subject to Section 13.2, the Administrator shall not, without the approval of the stockholders of the Company, (i) authorize
the amendment of any outstanding Option or Stock Appreciation Right to reduce its price per share, or (ii) cancel any Option or Stock
Appreciation Right in exchange for cash or another Award when the Option or Stock Appreciation Right price per share exceeds the Fair
Market Value of the underlying Shares. Subject to Section 13.2, the Administrator shall have the authority, without the approval
of the stockholders of the Company, to amend any outstanding Award to increase the price per share or to cancel and replace an Award with
the grant of an Award having a price per share that is greater than or equal to the price per share of the original Award. Furthermore,
for purposes of this Section 11.6, except in connection with a corporate transaction involving the Company (including, without
limitation, any stock dividend, stock split, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination or exchange of shares), the terms of outstanding Awards may not be amended to reduce the exercise price per share
of outstanding Options or Stock Appreciation Rights or cancel outstanding Options or Stock Appreciation Rights in exchange for cash, other
Awards or Options or Stock Appreciation Rights with an exercise price per share that is less than the exercise price per share of the
original Options or Stock Appreciation Rights without the approval of the stockholders of the Company.
ARTICLE 12.
ADMINISTRATION
12.1 Administrator.
The Committee (or another committee or a subcommittee of the Board or the Committee of the Board assuming the functions of the Committee
under the Plan) shall administer the Plan (except as otherwise permitted herein). To the extent necessary to comply with Rule 16b-3
of the Exchange Act, the Committee (or another committee or subcommittee of the Board or the Committee of the Board assuming the functions
of the Committee under the Plan) shall take all action with respect to such Awards, and the individuals taking such action shall consist
solely of two or more Non-Employee Directors appointed by and holding office at the pleasure of the Board, each of whom is intended to
qualify as both a “non-employee director” as defined by Rule 16b-3 of the Exchange Act or any successor rule. Additionally,
to the extent required by Applicable Law, each of the individuals constituting the Committee (or another committee or subcommittee of
the Board or the Committee of the Board assuming the functions of the Committee under the Plan) shall be an “independent director”
under the rules of any securities exchange or automated quotation system on which the Shares are listed, quoted or traded. Notwithstanding
the foregoing, any action taken by the Committee shall be valid and effective, whether or not members of the Committee at the time of
such action are later determined not to have satisfied the requirements for membership set forth in this Section 12.1 or otherwise
provided in any charter of the Committee. Except as may otherwise be provided in any charter of the Committee, appointment of Committee
members shall be effective upon acceptance of appointment. Committee members may resign at any time by delivering written or electronic
notice to the Board. Vacancies in the Committee may only be filled by the Board. Notwithstanding the foregoing, (a) the full Board,
acting by a majority of its members in office, shall conduct the general administration of the Plan with respect to Awards granted to
Non-Employee Directors and, with respect to such Awards, the terms “Administrator” and “Committee” as used in
the Plan shall be deemed to refer to the Board and (b) the Board or Committee may delegate its authority hereunder to the extent
permitted by Section 12.6.
12.2 Duties and Powers
of Committee. It shall be the duty of the Committee to conduct the general administration of the Plan in accordance with its provisions.
The Committee shall have the power to interpret the Plan, the Program and the Award Agreement, and to adopt such rules for the administration,
interpretation and application of the Plan as are not inconsistent therewith, to interpret, amend or revoke any such rules and to
amend any Program or Award Agreement; provided that the rights or obligations of the Holder of the Award that is the subject of
any such Program or Award Agreement are not affected adversely by such amendment, unless the consent of the Holder is obtained or such
amendment is otherwise permitted under Section 13.10. Any such grant or award under the Plan need not be the same with respect
to each Holder. Any such interpretations and rules with respect to Incentive Stock Options shall be consistent with the provisions
of Section 422 of the Code. In its sole discretion, the Board may at any time and from time to time exercise any and all rights and
duties of the Committee under the Plan except with respect to matters which under Rule 16b-3 under the Exchange Act or any successor
rule, or any regulations or rules issued thereunder, or the rules of any securities exchange or automated quotation system on
which the Shares are listed, quoted or traded are required to be determined in the sole discretion of the Committee.
12.3 Action by the Committee.
Unless otherwise established by the Board or in any charter of the Committee, a majority of the Committee shall constitute a quorum and
the acts of a majority of the members present at any meeting at which a quorum is present, and acts approved in writing by all members
of the Committee in lieu of a meeting, shall be deemed the acts of the Committee. Each member of the Committee is entitled to, in good
faith, rely or act upon any report or other information furnished to that member by any officer or other employee of the Company or any
Affiliate, the Company’s independent certified public accountants, or any executive compensation consultant or other professional
retained by the Company to assist in the administration of the Plan.
12.4 Authority of Administrator.
Subject to the Company’s Bylaws, the Committee’s Charter and any specific designation in the Plan, the Administrator has the
exclusive power, authority and sole discretion to:
(a) Designate Eligible
Individuals to receive Awards;
(b) Determine the type
or types of Awards to be granted to each Eligible Individual;
(c) Determine the number
of Awards to be granted and the number of Shares to which an Award will relate;
(d) Determine the terms
and conditions of any Award granted pursuant to the Plan, including, but not limited to, the exercise price, grant price, purchase price,
any Performance Criteria, any restrictions or limitations on the Award, any schedule for vesting, lapse of forfeiture restrictions or
restrictions on the exercisability of an Award, and accelerations or waivers thereof, and any provisions related to non-competition and
recapture of gain on an Award, based in each case on such considerations as the Administrator in its sole discretion determines;
(e) Determine whether,
to what extent, and pursuant to what circumstances an Award may be settled in, or the exercise price of an Award may be paid in cash,
Shares, other Awards, or other property, or an Award may be canceled, forfeited, or surrendered;
(f) Prescribe the form
of each Award Agreement, which need not be identical for each Holder;
(g) Decide all other matters
that must be determined in connection with an Award;
(h) Establish, adopt, or
revise any rules and regulations as it may deem necessary or advisable to administer the Plan;
(i) Interpret the terms
of, and any matter arising pursuant to, the Plan, any Program or any Award Agreement;
(j) Make all other decisions
and determinations that may be required pursuant to the Plan or as the Administrator deems necessary or advisable to administer the Plan;
and
(k) Accelerate wholly or
partially the vesting or lapse of restrictions of any Award or portion thereof at any time after the grant of an Award, subject to whatever
terms and conditions it selects and Section 13.2.
12.5 Decisions Binding.
The Administrator’s interpretation of the Plan, any Awards granted pursuant to the Plan, any Program, any Award Agreement and all
decisions and determinations by the Administrator with respect to the Plan are final, binding and conclusive on all parties.
12.6 Delegation of Authority.
To the extent permitted by Applicable Law, the Board or Committee may from time to time delegate to a committee of one or more members
of the Board or one or more officers of the Company the authority to grant or amend Awards or to take other administrative actions pursuant
to this Article 13; provided, however, that in no event shall an officer of the Company be delegated the authority
to grant awards to, or amend awards held by, the following individuals: (a) individuals who are subject to Section 16 of the
Exchange Act, (b) Covered Employees or (c) officers of the Company (or Directors) to whom authority to grant or amend Awards
has been delegated hereunder; provided, further, that any delegation of administrative authority shall only be permitted
to the extent it is permissible under Applicable Law. Any delegation hereunder shall be subject to the restrictions and limits that the
Board or Committee specifies at the time of such delegation, and the Board may at any time rescind the authority so delegated or appoint
a new delegatee. At all times, the delegatee appointed under this Section 12.6 shall serve in such capacity at the pleasure
of the Board and the Committee.
ARTICLE 13.
MISCELLANEOUS PROVISIONS
13.1 Amendment, Suspension
or Termination of the Plan. Except as otherwise provided in this Section 13.1, the Plan may be wholly or partially amended
or otherwise modified, suspended or terminated at any time or from time to time by the Board or the Committee. However, without approval
of the Company’s stockholders given within twelve (12) months before or after the action by the Administrator, no action of the
Administrator may, except as provided in Section 13.2, (a) increase the Share Limit, (b) reduce the price per share
of any outstanding Option or Stock Appreciation Right granted under the Plan or take any action prohibited under Section 11.6,
or (c) cancel any Option or Stock Appreciation Right in exchange for cash or another Award when the Option or Stock Appreciation
Right price per share exceeds the Fair Market Value of the underlying Shares. Except as provided in Section 13.10, no amendment,
suspension or termination of the Plan shall, without the consent of the Holder, impair any rights or obligations under any Award theretofore
granted or awarded, unless the Award itself otherwise expressly so provides. No Awards may be granted or awarded during any period of
suspension or after termination of the Plan, and notwithstanding anything herein to the contrary, in no event may any Award be granted
under the Plan after the tenth (10th) anniversary of the Effective Date (the “Expiration Date”). Any Awards that are
outstanding on the Expiration Date shall remain in force according to the terms of the Plan and the applicable Award Agreement.
13.2 Changes in Common
Stock or Assets of the Company, Acquisition or Liquidation of the Company and Other Corporate Events.
(a) In the event of any
stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than normal cash dividends)
of Company assets to stockholders, or any other change affecting the Shares of the Company’s stock or the share price of the Company’s
stock other than an Equity Restructuring, the Administrator may make equitable adjustments, if any, to reflect such change with respect
to: (i) the aggregate number and kind of Shares that may be issued under the Plan (including, but not limited to, adjustments of
the Share Limit and Award Limit); (ii) the number and kind of Shares (or other securities or property) subject to outstanding Awards;
(iii) the number and kind of Shares (or other securities or property) for which automatic grants are subsequently to be made to new
and continuing Non-Employee Directors pursuant to Section 4.6; (iv) the terms and conditions of any outstanding Awards
(including, without limitation, any applicable performance targets or criteria with respect thereto); and (v) the grant or exercise
price per share for any outstanding Awards under the Plan.
(b) In the event of any
transaction or event described in Section 13.2(a) or any unusual or nonrecurring transactions or events affecting the
Company, any Affiliate, or the financial statements of the Company or any Affiliate, or of changes in Applicable Law or accounting principles,
the Administrator, in its sole discretion, and on such terms and conditions as it deems appropriate, either by the terms of the Award
or by action taken prior to the occurrence of such transaction or event and either automatically or upon the Holder’s request, is
hereby authorized to take any one or more of the following actions whenever the Administrator determines that such action is appropriate
in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with
respect to any Award under the Plan, to facilitate such transactions or events or to give effect to such changes in laws, regulations
or principles:
(i) To provide for either
(A) termination of any such Award in exchange for an amount of cash, if any, equal to the amount that would have been attained upon
the exercise of such Award or realization of the Holder’s rights (and, for the avoidance of doubt, if as of the date of the occurrence
of the transaction or event described in this Section 13.2 the Administrator determines in good faith that no amount would
have been attained upon the exercise of such Award or realization of the Holder’s rights, then such Award may be terminated by the
Company without payment) or (B) the replacement of such Award with other rights or property selected by the Administrator, in its
sole discretion, having an aggregate value not exceeding the amount that could have been attained upon the exercise of such Award or realization
of the Holder’s rights had such Award been currently exercisable or payable or fully vested;
(ii) To provide that
such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar
options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and prices;
(iii) To make adjustments
in the number and type of Shares of the Company’s stock (or other securities or property) subject to outstanding Awards, and in
the number and kind of outstanding Restricted Stock or Deferred Stock and/or in the terms and conditions of (including the grant or exercise
price), and the criteria included in, outstanding Awards and Awards which may be granted in the future;
(iv) To provide that
such Award shall be exercisable or payable or fully vested with respect to all Shares covered thereby, notwithstanding anything to the
contrary in the Plan or the applicable Program or Award Agreement; and
(v) To provide that the
Award cannot vest, be exercised or become payable after such event.
(c) In connection with
the occurrence of any Equity Restructuring, and notwithstanding anything to the contrary in Sections 13.2(a) and 13.2(b):
(i) The number and type
of securities subject to each outstanding Award and the exercise price or grant price thereof, if applicable, shall be equitably adjusted;
and/or
(ii) The Administrator
shall make such equitable adjustments, if any, as the Administrator, in its sole discretion, may deem appropriate to reflect such Equity
Restructuring with respect to the aggregate number and kind of Shares that may be issued under the Plan (including, but not limited to,
adjustments of the Share Limit and Award Limit). The adjustments provided under this Section 13.2(c) shall be nondiscretionary
and shall be final and binding on the affected Holder and the Company.
(d) Notwithstanding any
other provision of the Plan, in the event of a Change in Control, unless the Administrator elects to (i) terminate an Award in exchange
for cash, rights or property, or (ii) cause an Award to become fully exercisable and no longer be subject to any forfeiture restrictions
prior to the consummation of a Change in Control, pursuant to Section 13.2, (A) such Award (other than any portion subject
to performance-based vesting) shall continue in effect or be assumed or an equivalent Award substituted by the successor corporation or
a parent or subsidiary of the successor corporation and (B) the portion of such Award subject to performance-based vesting shall
be subject to the terms and conditions of the applicable Award Agreement and, if no applicable terms and conditions, the Administrator’s
discretion. In the event an Award (or portion thereof) continues in effect or is assumed or an equivalent Award substituted, and a Holder
incurs Termination of Service without “cause” (as determined by the Administrator, or as set forth in the Award Agreement
relating to such Award) upon or within twelve (12) months following the Change in Control, then such Holder shall be fully vested in such
continued, assumed or substituted Award.
(e) In the event that the
successor corporation in a Change in Control refuses to assume or substitute for an Award (other than any portion subject to performance-based
vesting), the Administrator may cause any or all of such Award (or portion thereof) to (i) terminate in exchange for cash, rights
or property pursuant to Section 13.2(b)(i) or (ii) become fully exercisable immediately prior to the consummation
of such transaction and all forfeiture restrictions on any or all of such Award to lapse. If such an Award is exercisable in lieu of assumption
or substitution in the event of a Change in Control, the Administrator shall notify the Holder that such Award shall be fully exercisable
for a period of fifteen (15) days from the date of such notice, contingent upon the occurrence of the Change in Control, and such Award
shall terminate upon the expiration of such period.
(f) For the purposes of
this Section 13.2, an Award shall be considered assumed if, following the Change in Control, the Award confers the right to
purchase or receive, for each Share subject to the Award immediately prior to the Change in Control, the consideration (whether stock,
cash, or other securities or property) received in the Change in Control by holders of Common Stock for each Share held on the effective
date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority
of the outstanding Shares); provided, however, that if such consideration received in the Change in Control was not solely
common stock of the successor corporation or its parent, the Administrator may, with the consent of the successor corporation, provide
for the consideration to be received upon the exercise of the Award, for each Share subject to an Award, to be solely common stock of
the successor corporation or its parent equal in fair market value to the per-share consideration received by holders of Common Stock
in the Change in Control.
(g) The Administrator,
in its sole discretion, may include such further provisions and limitations in any Award, agreement or certificate, as it may deem equitable
and in the best interests of the Company that are not inconsistent with the provisions of the Plan.
(h) With respect to Awards
which are granted to Covered Employees no adjustment or action described in this Section 13.2 or in any other provision of
the Plan shall be authorized to the extent that such adjustment or action would cause the Plan to violate Section 422(b)(1) of
the Code. Furthermore, no such adjustment or action shall be authorized to the extent such adjustment or action would result in short-swing
profits liability under Section 16 or violate the exemptive conditions of Rule 16b-3 unless the Administrator determines that
the Award is not to comply with such exemptive conditions.
(i) The existence of the
Plan, the Program, the Award Agreement and the Awards granted hereunder shall not affect or restrict in any way the right or power of
the Company or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in
the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock or of options, warrants
or rights to purchase stock or of bonds, debentures, preferred or prior preference stocks whose rights are superior to or affect the Common
Stock or the rights thereof or which are convertible into or exchangeable for Common Stock, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character
or otherwise.
(j) No action shall be
taken under this Section 13.2 which shall cause an Award to fail to be exempt from or comply with Section 409A of the
Code or the Treasury Regulations thereunder.
(k) In the event of any
pending stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than normal
cash dividends) of Company assets to stockholders, or any other change affecting the Shares or the share price of the Common Stock including
any Equity Restructuring, for reasons of administrative convenience, the Administrator, in its sole discretion, may refuse to permit the
exercise of any Award during a period of up to thirty (30) days prior to the consummation of any such transaction.
13.3 Approval of Plan by
Stockholders. The Plan shall be submitted for the approval of the Company’s stockholders within twelve (12) months after the
date of the Board’s initial adoption of the Plan.
13.4 No Stockholders Rights.
Except as otherwise provided herein, a Holder shall have none of the rights of a stockholder with respect to Shares covered by any Award
until the Holder becomes the record owner of such Shares.
13.5 Paperless Administration.
In the event that the Company establishes, for itself or using the services of a third party, an automated system for the documentation,
granting or exercise of Awards, such as a system using an internet website or interactive voice response, then the paperless documentation,
granting or exercise of Awards by a Holder may be permitted through the use of such an automated system.
13.6 Effect of Plan upon
Other Compensation Plans. The adoption of the Plan shall not affect any other compensation or incentive plans in effect for the Company
or any Affiliate. Nothing in the Plan shall be construed to limit the right of the Company or any Affiliate: (a) to establish any
other forms of incentives or compensation for Employees, Directors or Consultants of the Company or any Affiliate, or (b) to grant
or assume options or other rights or awards otherwise than under the Plan in connection with any proper corporate purpose including without
limitation, the grant or assumption of options in connection with the acquisition by purchase, lease, merger, consolidation or otherwise,
of the business, stock or assets of any corporation, partnership, limited liability company, firm or association.
13.7 Compliance with Laws.
The Plan, the granting and vesting of Awards under the Plan and the issuance and delivery of Shares and the payment of money under the
Plan or under Awards granted or awarded hereunder are subject to compliance with all Applicable Law (including but not limited to state,
federal and foreign securities law and margin requirements), and to such approvals by any listing, regulatory or governmental authority
as may, in the opinion of counsel for the Company, be necessary or advisable in connection therewith. Any securities delivered under the
Plan shall be subject to such restrictions, and the person acquiring such securities shall, if requested by the Company, provide such
assurances and representations to the Company as the Company may deem necessary or desirable to assure compliance with all Applicable
Law. To the extent permitted by Applicable Law, the Plan and Awards granted or awarded hereunder shall be deemed amended to the extent
necessary to conform to Applicable Law.
13.8 Titles and Headings,
References to Sections of the Code or Exchange Act. The titles and headings of the Sections in the Plan are for convenience of reference
only and, in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control. References to sections
of the Code or the Exchange Act shall include any amendment or successor thereto.
13.9 Governing Law.
The Plan and any agreements hereunder shall be administered, interpreted and enforced under the internal laws of the State of Delaware
without regard to conflicts of laws thereof or of any other jurisdiction.
13.10 Section 409A.
To the extent that the Administrator determines that any Award granted under the Plan is subject to Section 409A of the Code, the
Program pursuant to which such Award is granted and the Award Agreement evidencing such Award shall incorporate the terms and conditions
required by Section 409A of the Code. To the extent applicable, the Plan, the Program and any Award Agreements shall be interpreted
in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder,
including without limitation any such regulations or other guidance that may be issued after the Effective Date. Notwithstanding any provision
of the Plan to the contrary, in the event that following the Effective Date the Administrator determines that any Award may be subject
to Section 409A of the Code and related Department of Treasury guidance (including such Department of Treasury guidance as may be
issued after the Effective Date), the Administrator may adopt such amendments to the Plan and the applicable Program and Award Agreement
or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions,
that the Administrator determines are necessary or appropriate to (a) exempt the Award from Section 409A of the Code and/or
preserve the intended tax treatment of the benefits provided with respect to the Award, or (b) comply with the requirements of Section 409A
of the Code and related Department of Treasury guidance and thereby avoid the application of any penalty taxes under such Section.
13.11 No Rights to Awards.
No Eligible Individual or other person shall have any claim to be granted any Award pursuant to the Plan, and neither the Company nor
the Administrator is obligated to treat Eligible Individuals, Holders or any other persons uniformly.
13.12 Unfunded Status of
Awards. The Plan is intended to be an “unfunded” plan for incentive compensation. With respect to any payments not yet
made to a Holder pursuant to an Award, nothing contained in the Plan or any Program or Award Agreement shall give the Holder any rights
that are greater than those of a general creditor of the Company or any Affiliate.
13.13 Indemnification.
To the extent allowable pursuant to Applicable Law, each member of the Committee or of the Board shall be indemnified and held harmless
by the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection
with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved
by reason of any action or failure to act pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction
of judgment in such action, suit, or proceeding against him or her; provided he or she gives the Company an opportunity, at its
own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing
right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled pursuant
to the Company’s Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have
to indemnify them or hold them harmless.
13.14 Relationship to other
Benefits. No payment pursuant to the Plan shall be taken into account in determining any benefits under any pension, retirement, savings,
profit sharing, group insurance, welfare or other benefit plan of the Company or any Affiliate except to the extent otherwise expressly
provided in writing in such other plan or an agreement thereunder.
13.15 Expenses. The
expenses of administering the Plan shall be borne by the Company and its Affiliates.
* * * * *
I hereby certify that the
foregoing Plan was duly adopted by the Board of Directors of Shake Shack Inc. on April 23, 2024.
* * * * *
I hereby certify that the
foregoing Plan was approved by the stockholders of Shake Shack Inc. on June 12, 2024.
Executed on this 12th day of June, 2024.
|
/s/
Ronald Palmese, Jr. |
|
Ronald Palmese, Jr. |
|
Chief Legal Officer |
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Grafico Azioni Shake Shack (NYSE:SHAK)
Storico
Da Feb 2025 a Mar 2025
Grafico Azioni Shake Shack (NYSE:SHAK)
Storico
Da Mar 2024 a Mar 2025