Shake Shack Inc. 10-K

Item 8. Financial Statements and Supplementary Data. INDEX TO FINANCIAL STATEMENTS Page Management's Report 76 Report of Independent Registered Public Accounting Firm (PCAOB ID: 42 ) 77 Consolidated Balance Sheets 82 Consolidated Statements of Loss 83 Consolidated Statements of Comprehensive Loss 84 Consolidated Statements of Stockholders' Equity 85 Consolidated Statements of Cash Flows 86 Notes to Consolidated Financial Statements 87 Shake Shack Inc. Form 10-K | 75 MANAGEMENT'S REPORT Management's Annual Report on the Consolidated Financial Statements Management is responsible for the preparation, integrity and objectivity of the accompanying Consolidated Financial Statements and related financial information. The Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America and necessarily include certain amounts that are based on estimates and informed judgments. Our management also prepared the related financial information included in this Annual Report on Form 10-K and is responsible for its accuracy and consistency with the Consolidated Financial Statements. Ernst & Young LLP, our independent registered public accounting firm, has audited the Consolidated Financial Statements as of December 28, 2022, as stated in their report herein. Management's Report on Internal Control Over Financial Reporting Management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rules 13a-15(f). Internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of the financial statements for external purposes in accordance with generally accepted accounting principles in the United States of America. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. Under the supervision and with the participation of our management, including our chief executive officer and chief financial officer, we assessed the effectiveness of our internal control over financial reporting as of December 28, 2022, based on the framework in Internal Control—Integrated Framework (2013), issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework). Based on the results of our evaluation, management concluded that our internal control over financial reporting was effective as of December 28, 2022. Our independent registered public accounting firm, Ernst & Young LLP, has issued an attestation report on the effectiveness of our internal control over financial reporting as of December 28, 2022, as stated in their report herein. Shake Shack Inc. Form 10-K | 76 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM To the Shareholders and the Board of Directors of Shake Shack Inc. Opinion on the Financial Statements We have audited the accompanying consolidated balance sheets of Shake Shack Inc. (the Company) as of December 28, 2022 and December 29, 2021, the related consolidated statements of income (loss), comprehensive income (loss), stockholders' equity and cash flows for each of the three years in the period ended December 28, 2022, and the related notes and financial statement schedules listed in the Index at Item 15(a) (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company at December 28, 2022 and December 29, 2021, and the results of its operations and its cash flows for each of the three years in the period ended December 28, 2022, in conformity with U.S. generally accepted accounting principles. We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company's internal control over financial reporting as of December 28, 2022, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) and our report dated February 23, 2023 expressed an unqualified opinion thereon. Basis for Opinion These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB. We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion. Critical Audit Matters The critical audit matters communicated below are matters arising from the current period audit of the financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate. Shake Shack Inc. Form 10-K | 77 Measurement of deferred tax assets related to the Company’s investment in SSE Holdings LLC Description of the Matter As discussed in Notes 12 and 14 of the consolidated financial statements, the noncontrolling interest holders of SSE Holdings LLC (“LLC”) may redeem their equity interests in SSE Holdings LLC (“LLC interests”) for shares of the Company’s Class A common stock. For income tax purposes, these redemptions are treated as direct purchases of LLC equity and are recorded at their fair market value upon the date of the redemption. The resulting incremental tax basis in excess of the book basis arising from a redemption represents a deductible temporary difference for which a deferred tax asset is recorded. At December 28, 2022, the Company’s total deferred tax asset related to the basis difference in its investment in LLC was $90 million. The basis difference in the Company’s investment in LLC changes through redemptions of LLC interests and other qualifying transactions. Auditing management’s accounting for the basis differences in its investment in LLC is especially complex and challenging as the Company’s accounting requires timely identification of all historical basis differences and subsequent adjustments related to the redemptions, described above, and the related tax receivable agreement (“TRA”) payments to the LLC holders, discussed below. How We Addressed the Matter in Our Audit We obtained an understanding, evaluated the design and tested the operating effectiveness of controls over the Company’s process for determining the completeness and measurement of the Company’s basis differences in the investment in LLC. For example, we tested management’s review controls over the calculation of the change in tax basis resulting from the redemptions, including the determination of fair market value. In addition, we tested controls over management’s communication of redemptions to the Company’s stock transfer agent as detailed in redemption notices provided by the LLC holder. To test the completeness and accuracy of the deferred tax asset related to the basis difference in the investment in the LLC, we performed audit procedures that included, among others, on a sample basis, testing redemptions of LLC interests by inspection of redemption notices, inquiry with legal counsel to verify the completeness of the redemption notices in the period, and external confirmation of LLC’s and the Company’s shares issued and outstanding with the stock transfer agent. Further, to test the measurement of the deferred tax asset, for a selection of redemptions, we recalculated the change in tax basis resulting from the redemptions, including the determination of fair value. Measurement of the valuation allowance against deferred tax assets Description of the Matter As discussed in Notes 2 and 14 of the consolidated financial statements, a valuation allowance is recognized if the Company determines it is more likely than not that all or a portion of a deferred tax asset will not be recognized. In making such determination, the Company considers all available evidence, including scheduled reversals of deferred tax liabilities, tax planning strategies and recent and forecasted results of operations. As of December 28, 2022, the Company is in a three-year cumulative book loss position, and is looking to its forecasted future U.S. federal taxable income to conclude that it is more likely than not that these deferred tax assets, except for certain local unincorporated business tax and foreign tax credits, will be fully realized prior to their expiration. At December 28, 2022, the Company had a net deferred tax asset balance for U.S. federal income taxes of $301 million, for which a valuation allowance of $10 million was provided. Auditing management’s analysis of the realizability of these U.S. federal deferred tax assets is highly judgmental because it requires the evaluation of positive evidence to support the position that the Company will generate sufficient future U.S. federal taxable income to realize their deferred tax assets as tax deductions on future income tax returns. The Company’s forecasted financial information, which is inherently subjective is a significant component of management’s analysis. Shake Shack Inc. Form 10-K | 78 How We Addressed the Matter in Our Audit We obtained an understanding, evaluated the design and tested the operating effectiveness of controls over the Company’s income tax process, including the review of deferred taxes and the evaluation of valuation allowances. In addition, we obtained an understanding, evaluated the design and tested the operating effectiveness of controls over the Company’s financial forecasting process. Such controls include management’s review of forecasted pretax income, including the significant assumptions such as projected Shack openings and operating margins, and operating costs, among others. In our testing surrounding the assessment of the valuation allowance as described above, we performed audit procedures that included, among others, evaluating the conclusions reached by the Company regarding the realizability of deferred tax assets, which involved performing procedures over (i) the scheduled reversal of deferred taxes and (ii) forecasted financial information. In order to test management’s financial forecasts, we assessed the historical accuracy of management’s forecasts and compared the significant assumptions used to current industry and economic trends and changes to the Company’s operations. In addition, we performed sensitivity analyses to evaluate the impact of changes in assumptions to future taxable income and ultimately, realizability of deferred tax assets. Measurement of the Tax Receivable Agreement liability Description of the Matter As discussed in Note 14 of the consolidated financial statements, the Company has a Tax Receivable Agreement (“TRA”) with certain current and historical holders of LLC interests, which is a contractual commitment to distribute 85% of any tax benefits (“TRA Payment”), realized or deemed to be realized by the Company to the parties to the TRA. The TRA payments are contingent upon, among other things, the generation of future taxable income over the term of the TRA and future changes in tax laws. At December 28, 2022, the Company’s liability due to the holders of LLC interests under the TRA (“TRA liability”), was $235 million. Auditing management’s accounting for the TRA liability is especially complex and judgmental as the Company’s calculation of the TRA liability requires estimates of its future qualified taxable income over the term of the TRA as a basis to determine if the related tax benefits are expected to be realized. Significant changes in estimates could have a material effect on the Company’s results of operations. How We Addressed the Matter in Our Audit We obtained an understanding, evaluated the design and tested the operating effectiveness of controls over the Company’s process for determining the measurement of the Company’s TRA obligation. Such controls include management's review controls over the computation of the TRA liability, which is based on several inputs including the Company’s share of the tax basis in the LLC, as discussed above, as well as the estimate of future qualified taxable income over the term of the TRA. We also tested management's review control over the calculation of the TRA liability in accordance with the terms set out in the TRA. We tested the measurement of the Company’s TRA liability by performing audit procedures that included, among others, procedures on the redemptions, as described above, and recalculating the Company’s share of the tax basis in the net assets of LLC, as discussed above. To test the Company’s position that there is sufficient future taxable income to realize the tax benefits related to the redemptions discussed above, we evaluated the assumptions used by management to develop the projections of future taxable income. For example, we compared management’s projections of future taxable income with the actual results of prior periods, as well as management’s consideration of current industry and economic trends. We also recalculated the TRA liability and verified the calculation of the TRA liability was in accordance with the terms set out in the TRA. Shake Shack Inc. Form 10-K | 79 Lease accounting Description of the Matter As discussed in Note 9 of the consolidated financial statements, domestic Company-operated Shacks are located on leased premises. As of December 28, 2022, the Company’s right-of-use assets and lease liabilities are $367 million and $469 million, respectively. Auditing management’s accounting and presentation for leases was especially complex and challenging as the Company’s accounting for the right-of-use asset, and the lease liability involved the compilation and review of the details associated with the population of non-uniform leases as well as the determination of the incremental borrowing rate and the evaluation of impairment of the right-of-use assets. How We Addressed the Matter in Our Audit We obtained an understanding, evaluated the design and tested the operating effectiveness of controls over the Company’s process for determining the classification, valuation and completeness of the right-of-use asset and the lease liability. Such controls include management’s review of the completeness of the population of leases and verification of the accuracy of the computation of the right-of-use asset and lease liability, including the determination of the incremental borrowing rate, and the evaluation of impairment of the right-of-use assets. We tested the completeness of the lease population through the evidence obtained from inquiries of Company personnel and an assessment of leases on a location-by-location basis based upon our knowledge of the Company’s openings of new Shake Shack restaurants for each location. For a sample of leases, we performed audit procedures that included, among others, testing the accuracy of the data used in the calculation of the right-of-use asset and the lease liability by agreeing the underlying inputs, such as possession date, lease term and payment terms, to source documents, such as lease contracts. We tested automated system controls over the computation and recording of right-of-use assets, lease liabilities, amortization, and interest. We recalculated the right-of-use asset and the lease liability and evaluated the key assumptions and methodologies used in the Company’s selection of the incremental borrowing rate by developing a comparative calculation. We tested the Company’s impairment assessment, by evaluating significant assumptions, including market rent assumptions, lease terms, and discount rate, used to estimate the fair value of right-of-use assets, and valuation methodologies used in the Company’s models. /s/ Ernst & Young LLP We have served as the Company's auditor since 2014. New York, New York February 23, 2023 Shake Shack Inc. Form 10-K | 80 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM To the Shareholders and the Board of Directors of Shake Shack Inc. Opinion on Internal Control Over Financial Reporting We have audited Shake Shack Inc.’s (the Company’s) internal control over financial reporting as of December 28, 2022, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). In our opinion, Shake Shack Inc. (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 28, 2022, based on the COSO criteria. We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of the Company as of December 28, 2022 and December 29, 2021, the related consolidated statements of income (loss), comprehensive income (loss), stockholders' equity and cash flows for each of the three years in the period ended December 28, 2022, and the related notes and financial statement schedules listed in the Index at Item 15(a) (collectively referred to as the “consolidated financial statements”) and our report dated February 23, 2023 expressed an unqualified opinion thereon. Basis for Opinion The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB. We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion. Definition and Limitations of Internal Control Over Financial Reporting A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. /s/ Ernst & Young LLP New York, New York February 23, 2023 Shake Shack Inc. Form 10-K | 81 SHAKE SHACK INC. CONSOLIDATED BALANCE SHEETS (in thousands, except share and per share amounts) December 28 2022 December 29 2021 ASSETS Current assets: Cash and cash equivalents $ 230,521 $ 302,406 Marketable securities 80,707 80,000 Accounts receivable, net 13,877 13,657 Inventories 4,184 3,850 Prepaid expenses and other current assets 14,699 9,763 Total current assets 343,988 409,676 Property and equipment, net of accumulated depreciation of $ 290,362 and $ 222,768 , respectively 467,031 389,386 Operating lease assets 367,488 347,277 Deferred income taxes, net 300,538 298,668 Other assets 15,817 12,563 TOTAL ASSETS $ 1,494,862 $ 1,457,570 LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable $ 20,407 $ 19,947 Accrued expenses 47,945 36,892 Accrued wages and related liabilities 17,576 14,638 Operating lease liabilities, current 42,238 35,519 Other current liabilities 19,552 14,501 Total current liabilities 147,718 121,497 Long-term debt 244,589 243,542 Long-term operating lease liabilities 427,227 400,113 Liabilities under tax receivable agreement, net of current portion 234,893 234,045 Other long-term liabilities 20,687 22,773 Total liabilities 1,075,114 1,021,970 Commitments and contingencies (Note 17) Stockholders' equity: Preferred stock, no par value—10,000,000 shares authorized; none issued and outstanding as of December 28, 2022 and December 29, 2021. — — Class A common stock, $0.001 par value—200,000,000 shares authorized; 39,284,998 and 39,142,397 shares issued and outstanding as of December 28, 2022 and December 29, 2021, respectively. 39 39 Class B common stock, $0.001 par value—35,000,000 shares authorized; 2,869,513 and 2,921,587 shares issued and outstanding as of December 28, 2022 and December 29, 2021, respectively. 3 3 Additional paid-in capital 415,611 405,940 Retained earnings (accumulated deficit) ( 20,537 ) 3,554 Accumulated other comprehensive income — 1 Total stockholders' equity attributable to Shake Shack Inc. 395,116 409,537 Non-controlling interests 24,632 26,063 Total equity 419,748 435,600 TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 1,494,862 $ 1,457,570 See accompanying Notes to Consolidated Financial Statements. Shake Shack Inc. Form 10-K | 82 SHAKE SHACK INC. CONSOLIDATED STATEMENTS OF LOSS (in thousands, except per share amounts) Fiscal Year Ended December 28 2022 December 29 2021 December 30 2020 Shack sales $ 869,270 $ 714,989 $ 506,339 Licensing revenue 31,216 24,904 16,528 TOTAL REVENUE 900,486 739,893 522,867 Shack-level operating expenses: Food and paper costs 261,584 218,262 153,335 Labor and related expenses 257,358 215,114 156,814 Other operating expenses 130,869 103,232 73,220 Occupancy and related expenses 68,508 59,228 51,592 General and administrative expenses 118,790 85,996 64,250 Depreciation and amortization expense 72,796 58,991 48,801 Pre-opening costs 15,050 13,291 8,580 Impairment and loss on disposal of assets 2,425 1,632 10,151 TOTAL EXPENSES 927,380 755,746 566,743 LOSS FROM OPERATIONS ( 26,894 ) ( 15,853 ) ( 43,876 ) Other income (expense), net 4,127 95 ( 786 ) Interest expense ( 1,518 ) ( 1,577 ) ( 815 ) LOSS BEFORE INCOME TAXES ( 24,285 ) ( 17,335 ) ( 45,477 ) Income tax expense (benefit) 1,682 ( 7,224 ) 57 NET LOSS ( 25,967 ) ( 10,111 ) ( 45,534 ) Less: Net loss attributable to non-controlling interests ( 1,876 ) ( 1,456 ) ( 3,376 ) NET LOSS ATTRIBUTABLE TO SHAKE SHACK INC. $ ( 24,091 ) $ ( 8,655 ) $ ( 42,158 ) Loss per share of Class A common stock: Basic $ ( 0.61 ) $ ( 0.22 ) $ ( 1.14 ) Diluted $ ( 0.61 ) $ ( 0.22 ) $ ( 1.14 ) Weighted average shares of Class A common stock outstanding: Basic 39,237 39,085 37,129 Diluted 39,237 39,085 37,129 See accompanying Notes to Consolidated Financial Statements. Shake Shack Inc. Form 10-K | 83 SHAKE SHACK INC. CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS (in thousands) Fiscal Year Ended December 28 2022 December 29 2021 December 30 2020 Net loss $ ( 25,967 ) $ ( 10,111 ) $ ( 45,534 ) Other comprehensive income (loss), net of tax (1) : Change in foreign currency translation adjustment ( 1 ) ( 2 ) 1 OTHER COMPREHENSIVE INCOME (LOSS) ( 1 ) ( 2 ) 1 COMPREHENSIVE LOSS ( 25,968 ) ( 10,113 ) ( 45,533 ) Less: Comprehensive loss attributable to non-controlling interests ( 1,876 ) ( 1,456 ) ( 3,376 ) COMPREHENSIVE LOSS ATTRIBUTABLE TO SHAKE SHACK INC. $ ( 24,092 ) $ ( 8,657 ) $ ( 42,157 ) (1) Net of tax benefit of $ 0 for fiscal years ended December 28, 2022, December 29, 2021 and December 30, 2020. See accompanying Notes to Consolidated Financial Statements. Shake Shack Inc. Form 10-K | 84 SHAKE SHACK INC. CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (in thousands, except share amounts) Class A Common Stock Class B Common Stock Additional Paid-In Capital Retained Earnings Accumulated Other Comprehensive Income (Loss) Non- Controlling Interest Total Equity Shares Amount Shares Amount BALANCE DECEMBER 25, 2019 34,417,302 $ 35 3,145,197 $ 3 $ 244,410 $ 54,367 $ 2 $ 23,168 $ 321,985 Net loss ( 42,158 ) ( 3,376 ) ( 45,534 ) Other comprehensive income: Net change in foreign currency translation adjustment 1 1 Equity-based compensation 5,600 5,600 Activity under stock compensation plans 456,942 1 5,909 305 6,215 Redemption of LLC interests 194,009 — ( 194,009 ) — 1,723 ( 1,723 ) — Establishment of liabilities under tax receivable agreement and related changes to deferred tax assets associated with increases in tax basis 1,707 1,707 Distributions paid to non-controlling interest holders ( 478 ) ( 478 ) Issuance of Class A common stock sold in equity offerings, net of underwriting discounts, commissions and offering costs 3,649,537 3 135,718 9,276 144,997 BALANCE DECEMBER 30, 2020 38,717,790 39 2,951,188 3 395,067 12,209 3 27,172 434,493 Net loss ( 8,655 ) ( 1,456 ) ( 10,111 ) Other comprehensive income: — Net change in foreign currency translation adjustment ( 2 ) ( 2 ) Equity-based compensation 8,803 8,803 Activity under stock compensation plans 395,006 — 1,829 1,348 3,177 Redemption of LLC interests 29,601 — ( 29,601 ) — 33 ( 33 ) — Establishment of liabilities under tax receivable agreement and related changes to deferred tax assets associated with increases in tax basis 208 208 Distributions paid to non-controlling interest holders ( 968 ) ( 968 ) BALANCE DECEMBER 29, 2021 39,142,397 39 2,921,587 3 405,940 3,554 1 26,063 435,600 Net loss ( 24,091 ) ( 1,876 ) ( 25,967 ) Other comprehensive income: Net change in foreign currency translation adjustment ( 1 ) ( 1 ) Equity-based compensation 13,518 13,518 Activity under stock compensation plans 90,527 — ( 2,978 ) 1,168 ( 1,810 ) Redemption of LLC interests 52,074 — ( 52,074 ) — 313 ( 313 ) — Establishment of liabilities under tax receivable agreement and related changes to deferred tax assets associated with increases in tax basis ( 1,182 ) ( 1,182 ) Distributions paid to non-controlling interest holders ( 410 ) ( 410 ) BALANCE DECEMBER 28, 2022 39,284,998 $ 39 2,869,513 $ 3 $ 415,611 $ ( 20,537 ) $ — $ 24,632 $ 419,748 See accompanying Notes to Consolidated Financial Statements. Shake Shack Inc. Form 10-K | 85 SHAKE SHACK INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands) Fiscal Year Ended December 28 2022 December 29 2021 December 30 2020 OPERATING ACTIVITIES Net loss (including amounts attributable to non-controlling interests) $ ( 25,967 ) $ ( 10,111 ) $ ( 45,534 ) Adjustments to reconcile net loss to net cash provided by operating activities: Depreciation and amortization expense 72,796 58,991 48,801 Amortization of debt issuance costs 1,047 867 — Amortization of cloud computing asset 1,500 1,245 1,444 Non-cash operating lease cost 58,801 50,888 44,910 Equity-based compensation 13,326 8,703 5,560 Deferred income taxes ( 3,357 ) ( 10,379 ) ( 1,356 ) Non-cash interest expense 218 353 66 (Gain) loss on sale of marketable securities — 5 ( 79 ) Impairment and loss on disposal of assets 2,425 1,632 10,151 Other non-cash expense (income) ( 1 ) ( 4 ) 1,937 Unrealized loss on equity securities 158 277 59 Changes in operating assets and liabilities: Accounts receivable 9,139 ( 4,193 ) 1,006 Inventories ( 334 ) ( 962 ) ( 667 ) Prepaid expenses and other current assets ( 2,473 ) 4,913 ( 5,197 ) Other assets ( 8,065 ) ( 2,722 ) ( 2,940 ) Accounts payable 3,541 ( 6,450 ) 4,626 Accrued expenses 4,707 7,175 2,170 Accrued wages and related liabilities 2,859 4,200 ( 1,010 ) Other current liabilities 8,541 ( 1,166 ) 1,752 Operating lease liabilities ( 61,364 ) ( 43,417 ) ( 33,724 ) Other long-term liabilities ( 756 ) ( 1,443 ) 5,375 NET CASH PROVIDED BY OPERATING ACTIVITIES 76,741 58,402 37,350 INVESTING ACTIVITIES Purchases of property and equipment ( 142,559 ) ( 101,495 ) ( 69,038 ) Purchases of marketable securities ( 865 ) ( 47,399 ) ( 20,359 ) Sales of marketable securities — 4,004 20,000 NET CASH USED IN INVESTING ACTIVITIES ( 143,424 ) ( 144,890 ) ( 69,397 ) FINANCING ACTIVITIES Proceeds from issuance of convertible notes, net of discount — 243,750 — Proceeds from Revolving Credit Facility — — 50,000 Payments on Revolving Credit Facility — — ( 50,000 ) Deferred financing costs — ( 169 ) ( 64 ) Proceeds from issuance of Class A common stock sold in equity offerings, net of underwriting discounts, commissions and offering costs — — 144,997 Payments on principal of finance leases ( 2,974 ) ( 2,694 ) ( 2,206 ) Distributions paid to non-controlling interest holders ( 410 ) ( 968 ) ( 478 ) Debt issuance costs — ( 1,075 ) — Payments under tax receivable agreement — — ( 6,643 ) Net proceeds from stock option exercises 424 6,731 8,033 Employee withholding taxes related to net settled equity awards ( 2,242 ) ( 3,554 ) ( 1,818 ) NET CASH PROVIDED BY (USED IN) FINANCING ACTIVITIES ( 5,202 ) 242,021 141,821 INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS ( 71,885 ) 155,533 109,774 CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 302,406 146,873 37,099 CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 230,521 $ 302,406 $ 146,873 Supplemental cash flow information and non-cash investing and financing activities are further described in the accompanying notes. See accompanying Notes to Consolidated Financial Statements. Shake Shack Inc. Form 10-K | 86 SHAKE SHACK INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Page Note 1 Nature of Operations 88 Note 2 Summary of Significant Accounting Policies 88 Note 3 Revenue 94 Note 4 Fair Value Measurements 94 Note 5 Accounts Receivable 95 Note 6 Property and Equipment 96 Note 7 Supplemental Balance Sheet Information 96 Note 8 Debt 97 Note 9 Leases 99 Note 10 Employee Benefit Plans 101 Note 11 Stockholders' Equity 101 Note 12 Non-Controlling Interests 102 Note 13 Equity-Based Compensation 103 Note 14 Income Taxes 105 Note 15 Earnings (Loss) Per Share 109 Note 16 Supplemental Cash Flow Information 110 Note 17 Commitments and Contingencies 110 Note 18 Related Party Transactions 111 Note 19 Geographic Information 113 Shake Shack Inc. Form 10-K | 87 NOTE 1: NATURE OF OPERATIONS Shake Shack Inc. was formed on September 23, 2014 as a Delaware corporation for the purpose of facilitating an initial public offering and other related transactions in order to carry on the business of SSE Holdings, LLC and its subsidiaries ("SSE Holdings"). Shake Shack Inc. is the sole managing member of SSE Holdings and, as sole managing member, the Company operates and controls all of the business and affairs of SSE Holdings. As a result, the Company consolidates the financial results of SSE Holdings and reports a non-controlling interest representing the economic interest in SSE Holdings held by the other members of SSE Holdings. As of December 28, 2022 the Company owned 93.2 % of SSE Holdings. Unless the context otherwise requires, "we," "us," "our," "Shake Shack," the "Company" and other similar references, refer to Shake Shack Inc. and, unless otherwise stated, all of its subsidiaries, including SSE Holdings. The Company operates and licenses Shake Shack restaurants ("Shacks"), which serve burgers, chicken, hot dogs, crinkle cut fries, shakes, frozen custard, beer, wine and more. As of December 28, 2022, there were 436 Shacks in operation, system-wide, of which 254 were domestic Company-operated Shacks, 33 were domestic licensed Shacks and 149 were international licensed Shacks. NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Basis of Presentation The accompanying Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP") and include the accounts of Shake Shack Inc. and its subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation. Certain reclassifications have been made to prior period amounts to conform to the current year presentation. SSE Holdings is considered a variable interest entity. Shake Shack Inc. is the primary beneficiary as the Company has the majority economic interest in SSE Holdings and, as the sole managing member, has decision making authority that significantly affects the economic performance of the entity, while the limited partners have no substantive kick-out or participating rights. As a result, the Company consolidates SSE Holdings. The assets and liabilities of SSE Holdings represent substantially all of the Company's consolidated assets and liabilities with the exception of certain deferred taxes and liabilities under the Tax Receivable Agreement. As of December 28, 2022 and December 29, 2021, the net assets of SSE Holdings were $ 362,571 and $ 376,857 , respectively. The assets of SSE Holdings are subject to certain restrictions in SSE Holdings' revolving credit agreement. Refer to Note 8, Debt, and Note 14, Income Taxes, for additional information. Fiscal Year The Company operates on a 52/53 week fiscal year ending on the last Wednesday of December. Fiscal year 2022 contained 52 weeks and ended on December 28, 2022 ("fiscal 2022"). Fiscal year 2021 contained 52 weeks and ended on December 29, 2021 ("fiscal 2021"). Fiscal year 2020 contained 53 weeks and ended on December 30, 2020 ("fiscal 2020"). Unless otherwise stated, references to years in this report relate to fiscal years. Use of Estimates The preparation of these Consolidated Financial Statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of sales and expenses during the reporting period. Actual results could differ from those estimates. Shake Shack Inc. Form 10-K | 88 Segment Reporting The chief operating decision maker (the "CODM") is the Chief Executive Officer. The Company determined it has one operating segment and one reportable segment, as the CODM regularly reviews Shack operations and financial performance at a consolidated level to allocate resources. Fair Value Measurements The Company applies fair value accounting for all financial assets and liabilities and non-financial assets and liabilities that are recognized or disclosed at fair value in the financial statements on a recurring basis. Assets and liabilities are categorized based on the priority of the inputs to the valuation technique into a three-level fair value hierarchy as set forth below. ▪ Level 1 — Quoted prices in active markets for identical assets or liabilities. ▪ Level 2 — Observable inputs other than quoted prices in active markets for identical assets or liabilities, quoted prices for identical assets or liabilities in inactive markets, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the asset or liability. ▪ Level 3 — Inputs that are both unobservable and significant to the overall fair value measurements reflecting an entity's estimates of assumptions that market participants would use in pricing the asset or liability. Cash and Cash Equivalents Cash and cash equivalents consist primarily of cash on hand, deposits with banks, money market funds and short-term, highly liquid investments that have original maturities of three months or less. Cash equivalents are stated at cost, which approximates fair value. Marketable Securities Marketable securities consist of mutual funds that primarily invest in corporate bonds, certificates of deposits, asset-backed securities, commercial paper, U.S. Treasury obligations, and foreign government securities. Marketable securities are recorded at fair value, with unrealized gains and losses recorded in Other income (expense), net. Dividend and interest income are recognized when earned and are recorded in Other income (expense), net on the Consolidated Statements of Loss. Accounts Receivable, Net Accounts receivable, net consist primarily of receivables from our licensees for licensing revenue and related reimbursements, credit card receivables and vendor rebates. The collectability of accounts receivable is evaluated based on a variety of factors, including historical experience, current economic conditions and other factors. Inventories Inventories, which consist of food, paper goods, beverages, beer, wine and retail merchandise, are valued at the lower of weighted average cost or net realizable value. No adjustment is deemed necessary to reduce inventory to net realizable value due to the rapid turnover and high utilization of inventory. Property and Equipment, Net Property and equipment, net is stated at historical cost less accumulated depreciation. Property and equipment is depreciated using the straight-line method over the estimated useful lives of the assets, which generally range from five to seven years for equipment, furniture and fixtures, and two to five years for computer equipment and software. Leasehold improvements are depreciated over the shorter of their estimated useful lives or the related lease terms. Costs incurred when constructing Shacks are capitalized. The cost of repairs and maintenance are expensed when incurred. Costs for refurbishments and improvements that significantly increase the productive capacity or extend the useful life of the Shake Shack Inc. Form 10-K | 89 assets are capitalized. When assets are disposed, the resulting gain or loss is recognized in Impairment and loss on disposal of assets on the Consolidated Statements of Loss. Valuation of Long-lived Assets The Company assesses potential impairments to our long-lived assets, which include property and equipment and operating lease right-of-use assets, whenever events or circumstances indicate that the carrying value of an asset may not be recoverable. Recoverability of an asset is measured by a comparison of the carrying value of the asset group to the estimated undiscounted future cash flows expected to be generated by the asset group. If the carrying value of the asset group exceeds its estimated undiscounted future cash flows, an impairment charge is recognized in the amount by which the carrying value of the asset exceeds the fair value of the asset, considering external market participant assumptions. Since the determination of future cash flows is an estimate of future performance, there may be future impairments in the event that future cash flows do not meet expectations. Refer to Note 4, Fair Value Measurements, for additional information. Deferred Financing Costs Deferred financing costs incurred in connection with the issuance of long-term debt and establishing credit facilities are capitalized and amortized in Interest expense based on the related debt agreements. Deferred financing costs are included in Other assets on the Consolidated Balance Sheets. Other Assets Other assets consist primarily of capitalized implementation costs from cloud computing arrangements, certain custom pre-ordered furniture, fixtures and equipment for future and existing Shacks, transferable liquor licenses, and security deposits. Implementation costs associated with cloud computing arrangements hosted by third party vendors are capitalized when incurred during the application development phase. Amortization is calculated on a straight-line basis over the contractual term of the cloud computing arrangement and is recorded within General and administrative expenses on the Consolidated Statements of Loss. As of December 28, 2022 and December 29, 2021, capitalized implementation costs from cloud computing arrangements totaled $ 6,212 and $ 6,431 , respectively, net of accumulated amortization. The costs of obtaining non-transferable liquor licenses that are directly issued by local government agencies for nominal fees are expensed as incurred. The costs of purchasing transferable liquor licenses through open markets in jurisdictions with a limited number of authorized liquor licenses are capitalized as indefinite-lived intangible assets. Annual liquor license renewal fees, for both types of licenses, are expensed over the renewal term. As of December 28, 2022 and December 29, 2021, indefinite-lived intangible assets relating to transferable liquor licenses totaled $ 1,837 and $ 1,461 , respectively. Indefinite-lived intangible assets are evaluated for impairment annually during the fourth quarter, and whenever events or circumstances indicate that an impairment may exist. When evaluating intangible assets for impairment, the Company first performs a qualitative assessment to determine whether it is more likely than not that an intangible asset group is impaired. If determined that it is more likely than not that the carrying value of the intangible asset group exceeds its fair value, the Company performs a quantitative assessment to derive the fair value of the intangible asset group. If the carrying value of the intangible asset group exceeds the estimated fair value, an impairment charge is recorded to reduce the carrying value to the estimated fair value. In addition, the Company continuously monitors and may revise the useful lives of intangible assets when facts and circumstances change. Revenue Recognition Revenue primarily consists of Shack sales and Licensing revenue. Generally, revenue is recognized as promised goods or services transfer to the guest or customer in an amount that reflects the consideration the Company expects to be entitled to in exchange for those goods or services. Revenue from Shack sales is recognized when payment is tendered at the point of sale, net of discounts, as the performance obligation has been satisfied. Sales tax collected from guests is excluded from Shack sales and the obligation is included as sales tax payable until the taxes are remitted to the appropriate taxing authorities. Revenue from gift cards is deferred and recognized over time as redemptions occur. Shake Shack Inc. Form 10-K | 90 Delivery services are fulfilled by third-party delivery partners whether ordered through the Shack app and website ("Company-owned platforms") or though third-party delivery partners. Revenue from orders through Company-owned platforms includes delivery fees and is recognized when the delivery partner transfers the order to the guest as the Company controls the delivery. For these sales, the Company receives payment directly from the guest at the time of sale. Revenue from orders through third-party delivery partners is recognized when the order is transferred to the third-party delivery partner and excludes delivery fees collected by the delivery partner as the Company does not control the delivery. The Company receives payment from the delivery partner subsequent to the transfer of order and the payment terms are short-term in nature. For all delivery sales, the Company is considered the principal and recognizes the revenue on a gross basis. During fiscal 2022, the Company concluded it has accumulated a sufficient level of historical data from a large pool of homogeneous transactions to allow it to reasonably and objectively determine an estimated gift card breakage rate and the pattern of actual gift card redemptions. Accordingly, the Company recognizes breakage income and reduces the related gift card liability for unredeemed gift cards in proportion to actual redemptions of gift cards. The Company will continue to review historical gift card redemption information at each reporting period to assess the continued appropriateness of the gift card breakage rate and pattern of redemption. In accordance with ASC 250, Accounting Changes and Error Corrections, the Company concluded that this accounting change represented a change in accounting estimate. As a result, a cumulative catch-up adjustment was recorded during fiscal 2022 that resulted in $ 1,281 of gift card breakage income. Inclusive of this cumulative catch-up, $ 1,472 of gift card breakage income was recognized during fiscal 2022. Gift card breakage income is included in Shack sales in the Consolidated Statements of Loss. Licensing revenue includes initial territory fees, Shack opening fees and ongoing sales-based royalty fees from licensed Shacks. Generally, the licenses granted to develop, open and operate each Shack in a specified territory are the predominant good or service transferred to the licensee and represent distinct performance obligations. Ancillary promised services, such as training and assistance during the initial opening of a Shack, are typically combined with the license and considered one performance obligation per Shack. The Company determines the transaction price for each contract, which is comprised of the initial territory fee and an estimate of the total Shack opening fees the Company expects to be entitled to. The calculation of total Shack opening fees included in the transaction price requires judgment, as it is based on an estimated number of Shacks the Company expects the licensee to open. The transaction price is then allocated equally to each Shack expected to open. The performance obligation is satisfied over time, starting when a Shack opens through the end of the license term for the related Shack therefore revenue is recognized on a straight-line basis over the license term. Generally, payment for the initial territory fee is received upon execution of the license agreement and payment for the Shack opening fees is received either in advance or upon opening the related Shack. These payments are initially deferred and recognized in revenue as the performance obligations are satisfied, which occurs over a long-term period. Revenue from sales-based royalties is recognized as the related sales occur. Equity-based Compensation Equity-based compensation expense is measured based on the grant-date fair value of the awards. For awards with graded-vesting features and service conditions only, compensation expense is recognized on a straight-line basis over the total requisite service period for the entire award. For awards with graded-vesting features and a combination of service and performance conditions, compensation expense is recognized using a graded-vesting attribution method over the vesting period based on the most probable outcome of the performance conditions. For awards with cliff vesting features and a combination of service and performance conditions, compensation expense is recognized on a straight-line basis over the total requisite service period for the entire award. Actual distributed shares are calculated upon conclusion of the service and performance periods. Forfeitures are recognized as they occur for all equity awards. Equity-based compensation expense is included in General and administrative expenses and Labor and related expenses on the Consolidated Statements of Loss. Advertising Most advertising costs are expensed as incurred, with the exception of advertising production costs, which are expensed at the time the advertising first takes place. Advertising costs amounted to $ 12,376 , $ 5,677 and $ 1,449 in fiscal 2022, fiscal 2021 and fiscal 2020, respectively, and are included in General and administrative expense and Other operating expenses on the Consolidated Statements of Loss. Shake Shack Inc. Form 10-K | 91 Leases Shake Shack currently leases all of its domestic Company-operated Shacks, the home office and certain equipment under various non-cancelable lease agreements that expire on various dates through 2044. The Company evaluates contracts entered into to determine whether the contract involves the use of property or equipment, which is either explicitly or implicitly identified in the contract. The Company evaluates whether it controls the use of the asset, which is determined by assessing whether substantially all economic benefits from the use of the asset is obtained, and whether the Company has the right to direct the use of the asset. If these criteria are met and the Company has identified a lease, a right of use asset and lease liability are recorded on the Consolidated Balance Sheets. Upon possession of a leased asset, the Company determines whether the lease is an operating or finance lease. All of the Company's real estate leases are classified as operating leases and most equipment leases are classified as finance leases. Generally, real estate leases have initial terms ranging from 10 to 15 years and typically include two five-year renewal options. Renewal options are generally not recognized as part of the right-of-use assets and lease liabilities as it is not reasonably certain at commencement date that the Company would exercise the renewal options. Real estate leases typically contain fixed minimum rent payments and/or contingent rent payments which are based upon sales in excess of specified thresholds. When the achievement of such sales thresholds are deemed to be probable, contingent rent is accrued in proportion to the sales recognized during the period. For operating leases, fixed lease payments are recognized as operating lease costs on a straight-line basis over the lease term. Lease expense incurred before a Shack opens is recorded in Pre-opening costs on the Consolidated Statements of Loss. Once a domestic Company-operated Shack opens, the straight-line lease expense and contingent rent, if applicable, are recorded in Occupancy and related expenses on the Consolidated Statements of Loss. Many of the leases also require the Company to pay real estate taxes, common area maintenance costs and other occupancy costs which are included in Occupancy and related expenses on the Consolidated Statements of Loss. Finance leases are recognized in depreciation expense on a straight-line basis over the remaining lease term, along with recognition of interest expense associated with accretion of the lease liability. For both operating and finance leases that contain lease and non-lease components, the components are combined and accounted for as a single lease component. Variable lease costs for both operating and finance leases, if any, is recognized as incurred. For leases with a lease term of 12 months or less ("short-term lease"), any fixed lease payments are recognized on a straight-line basis over such term, and are not recognized on the Consolidated Balance Sheets. The Company calculates operating lease assets and lease liabilities as the present value of fixed lease payments over the reasonably certain lease term beginning at the commencement date. The Company uses its incremental borrowing rate (“IBR”) in determining the present value of future lease payments as there are no explicit rates provided in the leases. The IBR used to measure the lease liability is derived from the average of the yield curves obtained from using the notching method and the recovery rate method. The most significant assumption in calculating the IBR is the Company's credit rating and is subject to judgment. The credit rating used to develop the IBR is determined by utilizing the credit ratings of other public companies with similar financial information as SSE Holdings. The Company expends cash for leasehold improvements to build out and equip leased properties. Generally, a portion of the leasehold improvements and building costs are reimbursed by the landlords through landlord incentives pursuant to agreed-upon terms in the lease agreements. Landlord incentives usually take the form of cash, full or partial credits against future minimum or contingent rents otherwise payable by the Company, or a combination thereof. In most cases, landlord incentives are received after the Company takes possession of the property and as milestones are met during the construction of the property. The Company includes these amounts in the measurement of the initial operating lease liability, which are also reflected as a reduction to the initial measurement of the right-of-use asset. Pre-opening Costs Pre-opening costs are expensed as incurred and consist primarily of occupancy, manager and team member wages, cookware, travel and lodging costs for the opening training team and other supporting team members, marketing expenses, legal fees, and inventory costs incurred prior to the opening of a Shack. Shake Shack Inc. Form 10-K | 92 Income Taxes Income taxes are accounted for pursuant to the asset and liability method which requires the recognition of deferred income tax assets and liabilities related to the expected future tax consequences arising from temporary differences between the carrying values and tax bases of assets and liabilities based on enacted statutory tax rates applicable to the periods in which the temporary differences are expected to reverse. Any effects of changes in income tax rates or laws are included in Income tax expense on the Consolidated Statements of Loss in the period of enactment. A valuation allowance is recognized if we determine it is more likely than not that all or a portion of a deferred tax asset will not be recognized. In making such determination, the Company considers all available evidence, including scheduled reversals of deferred tax liabilities, projected future taxable income, tax planning strategies and recent and expected future results of operations. Recently Adopted Accounting Pronouncements Accounting Standards Updates ("ASU") adopted in fiscal 2022 are summarized below. ASU Description Date Adopted Reference Rate Reform (Topic 848): Deferral of the Sunset Date of Topic 848 This amendment updates the sunset date of the reference rate relief guidance during the transition period for the discontinuation of the UK Financial Conduct Authority (FCA) publishing of the LIBOR rate which originally was announced to be December 31, 2021 but was deferred to June 30, 2023. Topic 848 now has a new sunset date of December 31, 2024. December 21, 2022 Recently Issued Accounting Pronouncements The Company reviewed all recently issued accounting pronouncements and concluded that they were not applicable or not expected to have a significant impact on the Consolidated Financial Statements. Shake Shack Inc. Form 10-K | 93 NOTE 3: REVENUE Revenue Recognition Revenue disaggregated by type was as follows: 2022 2021 2020 Shack sales $ 869,270 $ 714,989 $ 506,339 Licensing revenue: Sales-based royalties 30,204 24,150 15,773 Initial territory and opening fees 1,012 754 755 Total revenue $ 900,486 $ 739,893 $ 522,867 The aggregate amount of the transaction price allocated to performance obligations that were unsatisfied or partially unsatisfied as of December 28, 2022 was $ 20,721 . The Company expects to recognize this amount as revenue over a long-term period, as the license term for each Shack ranges from 5 to 20 years. This amount excludes any variable consideration related to sales-based royalties. Contract Balances Contract liabilities and receivables from contracts with customers were as follows: December 28 2022 December 29 2021 Shack sales receivables $ 8,779 $ 6,939 Licensing receivables, net of allowance for doubtful accounts 3,918 4,005 Gift card liability 2,285 3,297 Deferred revenue, current 969 763 Deferred revenue, long-term 14,340 12,669 Revenue recognized during fiscal 2022 and fiscal 2021 included in the respective liability balances at the beginning of the period were as follows: 2022 2021 Gift card liability (1) $ 1,781 $ 456 Deferred revenue 954 716 (1) For fiscal 2022, amount includes the cumulative catch-up adjustment that resulted in $ 1,281 of gift card breakage income. Refer to Note 2, Summary of Significant Accounting Policies, for additional information. NOTE 4: FAIR VALUE MEASUREMENTS Assets and Liabilities Measured at Fair Value on a Recurring Basis The carrying value of the Company's Cash and cash equivalents, Accounts receivable, net, Accounts payable and Accrued expenses approximates fair value due to the short-term nature of these financial instruments. Shake Shack Inc. Form 10-K | 94 As of December 28, 2022 and December 29, 2021, the Company held certain assets that are required to be measured at fair value on a recurring basis including Marketable securities, which consist of investments in equity securities. Assets measured at fair value on a recurring basis were as follows: Fair Value Measurements December 28 2022 December 29 2021 Level 1 Level 1 Equity securities: Mutual funds $ 80,707 $ 80,000 Total Marketable securities $ 80,707 $ 80,000 Refer to Note 8, Debt, for additional information relating to the fair value of the Company's outstanding debt instruments. A summary of other income (expense) from equity securities was as follows: 2022 2021 2020 Equity securities: Dividend income $ 1,033 $ 301 $ 359 Realized gain (loss) on sale of investments — ( 5 ) 79 Unrealized loss on equity securities ( 158 ) ( 277 ) ( 59 ) Total $ 875 $ 19 $ 379 Assets and Liabilities Measured at Fair Value on a Non-Recurring Basis Assets and liabilities measured at fair value on a non-recurring basis include long-lived assets, operating lease right-of-use assets and indefinite-lived intangible assets.The Company performs its impairment analysis at least annually or whenever events or circumstances indicate that the carrying amount of an asset may not be recoverable. During fourth quarter of fiscal 2022, the Company recognized an impairment charge of $ 99 related to one Shack. There were no impairment charges recognized during fiscal 2021. During fiscal 2020, the Company recognized an impairment charge of $ 7,644 related to two Shacks and the home office which was primarily attributed to operating lease right-of-use assets. These impairment charges were included in Impairment and loss on disposal of assets on the Consolidated Statement of Loss. The fair values of assets were determined using an income-based approach and are classified as Level 3 within the fair value hierarchy. Significant inputs include projections of future cash flows, discount rates, Shack sales and profitability. NOTE 5: ACCOUNTS RECEIVABLE, NET The components of Accounts receivable, net were as follows: December 28 2022 December 29 2021 Licensing receivables $ 3,918 $ 4,005 Credit card receivables 5,549 4,091 Delivery receivables 2,753 2,553 Other receivables 1,657 3,008 Accounts receivable, net $ 13,877 $ 13,657 Shake Shack Inc. Form 10-K | 95 NOTE 6: PROPERTY AND EQUIPMENT, NET The components of Property and equipment, net were as follows: December 28 2022 December 29 2021 Leasehold improvements $ 494,212 $ 413,893 Equipment 77,737 68,682 Furniture and fixtures 27,519 23,735 Computer equipment and software 70,667 44,821 Financing equipment lease right-of-use assets 16,155 13,741 Construction in progress 71,103 47,282 Property and equipment, gross 757,393 612,154 Less: accumulated depreciation ( 290,362 ) ( 222,768 ) Property and equipment, net $ 467,031 $ 389,386 Depreciation expense was $ 72,770 , $ 58,961 and $ 48,801 for fiscal 2022, fiscal 2021 and fiscal 2020, respectively. NOTE 7: SUPPLEMENTAL BALANCE SHEET INFORMATION The components of Other current liabilities were as follows: December 28 2022 December 29 2021 Sales tax payable $ 5,363 $ 4,575 Gift card liability 2,285 3,297 Current portion of financing equipment lease liabilities 2,546 2,711 Legal Reserve 6,285 533 Other 3,073 3,385 Other current liabilities $ 19,552 $ 14,501 The components of Other long-term liabilities were as follows: December 28 2022 December 29 2021 Deferred licensing revenue $ 14,340 $ 12,669 Long-term portion of financing equipment lease liabilities 3,909 4,303 Other 2,438 5,801 Other long-term liabilities $ 20,687 $ 22,773 Shake Shack Inc. Form 10-K | 96 NOTE 8: DEBT The components of Long-term debt were as follows: December 28 2022 December 29 2021 2021 Convertible Notes $ 250,000 $ 250,000 Discount and debt issuance costs, net of amortization ( 5,411 ) ( 6,458 ) Total Long-term debt $ 244,589 $ 243,542 Convertible Notes In March 2021, the Company issued $ 250,000 aggregate principal amount of 0% Convertible Senior Notes due 2028 (“Convertible Notes”) in a private placement to qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933. The Convertible Notes will mature on March 1, 2028, unless earlier converted, redeemed or repurchased in certain circumstances. Upon conversion, the Company pays or delivers, as the case may be, cash, shares of Class A common stock or a combination of cash and shares of Class A common stock, at the Company's election. The Convertible Notes are convertible at the option of the holders at any time prior to the close of business on the business day immediately preceding December 1, 2027, only under the following circumstances: (1) during any fiscal quarter commencing after the fiscal quarter ending on June 30, 2021 (and only during such fiscal quarter), if the last reported sale price of the Company's Class A common stock, par value $ 0.001 per share, for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive trading days ending on, and including, the last trading day of the immediately preceding fiscal quarter is greater than or equal to 130% of the conversion price for the Convertible Notes on each applicable trading day; (2) during the five business day period after any ten consecutive trading day period (the “measurement period”) in which the trading price (as defined in the Indenture) per one thousand dollar principal amount of the Convertible Notes for each trading day of the measurement period was less than 98% of the product of the last reported sale price of Class A common stock and the conversion rate for the Convertible Notes on each such trading day; (3) if the Company calls such Convertible Notes for redemption, at any time prior to the close of business on the scheduled trading day immediately preceding the redemption date, but only with respect to the Convertible Notes called (or deemed called) for redemption; and (4) upon the occurrence of specified corporate events as set forth in the Indenture. On or after December 1, 2027, until the close of business on the second scheduled trading day immediately preceding the maturity date, holders of the Convertible Notes may convert all or any portion of their Convertible Notes at any time, regardless of the foregoing circumstances. The Convertible Notes had an initial conversion rate of 5.8679 shares of Class A common stock per one thousand dollar principal amount of Convertible Notes, which is equivalent to an initial conversion price of approximately $ 170.42 per share of Class A common stock. The Company may not redeem the Convertible Notes prior to March 6, 2025. The Company may redeem for cash all or any portion of the Convertible Notes, at the Company's option, on or after March 6, 2025 if the last reported sale price of Class A common stock has been at least 130% of the conversion price then in effect for at least 20 trading days (whether or not consecutive) during any 30 consecutive trading day period (including the last trading day of such period) ending on, and including, the trading day immediately preceding the date on which the Company provides notice of redemption at a redemption price equal to 100% of the principal amount of the Convertible Notes to be redeemed, plus accrued and unpaid special interest, if any, to, but excluding, the redemption date. In addition, if Shake Shack undergoes a fundamental change (as defined in the indenture governing the Convertible Notes), subject to certain conditions, holders may require it to repurchase for cash all or any portion of their Convertible Notes at a repurchase price equal to 100% of the principal amount of the Convertible Notes to be repurchased, plus accrued and unpaid special interest, if any, to, but excluding, the fundamental change repurchase date. In addition, following certain corporate events that occur prior to the maturity date of the Convertible Notes or if the Company delivers a notice of redemption in respect of some Shake Shack Inc. Form 10-K | 97 or all of the Convertible Notes, the Company will, in certain circumstances, increase the conversion rate of the Convertible Notes for a holder who elects to convert the Convertible Notes in connection with such a corporate event or convert the Convertible Notes called (or deemed called) for redemption during the related redemption period, as the case may be. Contemporaneously with the issuance of the Convertible Notes, Shake Shack Inc. entered into an intercompany note with SSE Holdings (“Intercompany Note”). SSE Holdings promises to pay Shake Shack Inc., for value received, the principal amount with interest of the Intercompany Note in March 2028. Shake Shack Inc. will exercise its right to convert the Intercompany Note to maintain at all times a one-to-one ratio between the number of common units, directly or indirectly, held by Shake Shack Inc. and the aggregate number of outstanding shares of common stock. Total amortization expense was $ 1,047 and $ 867 , respectively, for fiscal 2022 and fiscal 2021, and was included in Interest expense in the Consolidated Statements of Loss. In connection with the issuance of the Convertible Notes, the Company also incurred consulting and advisory fees of $ 231 during fiscal 2021 and was included in General and administrative expenses in the Consolidated Statements of Loss. No amounts for consulting and advisory fees were incurred during fiscal 2022. The fair value of the Convertible Notes was approximately $ 162,500 and $ 206,018 , respectively, as of December 28, 2022 and December 29, 2021, based on external pricing data, including available quoted market prices of these instruments, and consideration of comparable debt instruments with similar interest rates and trading frequency, among other factors, and is classified as a Level 2 measurement within the fair value hierarchy. Revolving Credit Facility The Company maintains a revolving credit facility agreement ("Revolving Credit Facility") which permits borrowings up to $ 50 million and issuance of letters of credit upon the Company's request of up to $ 15 million. As of December 28, 2022 and December 29, 2021, no amounts were outstanding under the Revolving Credit Facility. In August 2022, the Company entered into an irrevocable standby letter of credit to secure obligations under the workers' compensation insurance coverage in the amount of $ 1,260 , which expires in July 2023 and renews automatically for one-year periods. As of December 28, 2022, the Company maintained $ 1,863 of letters of credit in connection with the Revolving Credit Facility. The Company maintained a letter of credit of $ 603 in connection with the Revolving Credit Facility as of December 29, 2021. As of December 28, 2022, the Revolving Credit Facility had unamortized deferred financing costs of $ 62 which were included in Other assets on the Consolidated Balance Sheets. Total interest expense related to the Revolving Credit Facility was $ 82 , $ 479 and $ 531 , respectively, for fiscal 2022, fiscal 2021 and fiscal 2020. Interest expense for fiscal 2021 primarily included the write-off of previously capitalized costs on the Revolving Credit Facility. The Revolving Credit Facility requires the Company to comply with maximum net lease adjusted leverage and minimum fixed charge coverage ratios, as well as other customary affirmative and negative covenants. As of December 28, 2022, the Company was in compliance with all covenants. Shake Shack Inc. Form 10-K | 98 NOTE 9: LEASES A summary of operating and finance lease assets and lease liabilities were as follows: Classification December 28 2022 December 29 2021 Operating leases Operating lease assets $ 367,488 $ 347,277 Finance leases Property and equipment, net 6,152 6,810 Total right-of-use assets $ 373,640 $ 354,087 Operating leases: Operating lease liabilities, current $ 42,238 $ 35,519 Long-term operating lease liabilities 427,227 400,113 Finance leases: Other current liabilities 2,546 2,711 Other long-term liabilities 3,909 4,303 Total lease liabilities $ 475,920 $ 442,646 The components of lease expense were as follows: Classification December 28 2022 December 29 2021 December 30 2020 Operating lease cost Occupancy and related expenses Pre-opening costs General and administrative expenses $ 58,788 $ 50,888 $ 44,910 Finance lease cost: Amortization of right-of-use assets Depreciation and amortization expense 3,071 2,719 2,257 Interest on lease liabilities Interest expense 226 207 213 Variable lease cost Occupancy and related expenses Pre-opening costs General and administrative expenses 15,311 13,019 13,766 Short-term lease cost Occupancy and related expenses 580 290 494 Total lease cost $ 77,976 $ 67,123 $ 61,640 Shake Shack Inc. Form 10-K | 99 As of December 28, 2022, future minimum lease payments for operating and finance leases consisted of the following: Operating Leases Finance Leases 2023 (1) $ 56,360 $ 2,756 2024 72,245 2,014 2025 71,340 1,069 2026 67,643 513 2027 63,167 289 Thereafter 262,804 195 Total minimum payments 593,559 6,836 Less: imputed interest 134,355 459 Total lease liabilities $ 459,204 $ 6,377 (1) Operating leases are net of certain tenant allowance receivables that were reclassified to Other current assets as of December 28, 2022. As of December 28, 2022 the Company had additional operating lease commitments of $ 160,464 for non-cancelable leases without a possession date, which begin to commence in 2023. These lease commitments are consistent with the leases that have been executed thus far. A summary of lease terms and discount rates for operating and finance leases were as follows: December 28 2022 December 29 2021 Weighted average remaining lease term (years): Operating leases 8.9 9.5 Finance leases 5.1 5.4 Weighted average discount rate: Operating leases 5.7 % 3.9 % Finance leases 4.0 % 3.1 % Supplemental cash flow information related to leases was as follows: December 28 2022 December 29 2021 December 30 2020 Cash paid for amounts included in the measurement of lease liabilities: Operating cash flows from operating leases $ 61,114 $ 49,079 $ 42,144 Operating cash flows from finance leases 226 207 213 Financing cash flows from finance leases 2,974 2,694 2,206 Right-of-use assets obtained in exchange for lease obligations: Operating leases 56,578 66,959 59,969 Finance leases 2,415 4,119 2,298 Shake Shack Inc. Form 10-K | 100 NOTE 10: EMPLOYEE BENEFIT PLANS Defined Contribution Plan Team members are eligible to participate in a defined contribution savings plan maintained by Shake Shack. The plan is funded by participant and employer contributions. Employer contributions are paid directly to the third party trustee and are at the Company's discretion. Employer contributions are based on matching a portion of participants' contributions. The Company matches 100 % of participants' contributions for the first 3 % of eligible compensation contributed and 50 % of contributions made in excess of 3 % of eligible compensation up to 5 % of eligible compensation. Employer contributions totaled $ 1,553 , $ 1,337 and $ 895 , respectively, for fiscal 2022, fiscal 2021 and fiscal 2020. NOTE 11: STOCKHOLDERS' EQUITY Redemptions of LLC Interests The SSE Holdings LLC Agreement provides that holders of LLC Interests may, from time to time, require SSE Holdings to redeem all or a portion of their LLC Interests for newly-issued shares of Class A common stock on a one-for-one basis. In connection with any redemption or exchange, the Company receives a corresponding number of LLC Interests, increasing its total ownership interest in SSE Holdings. Simultaneously, and in connection with a redemption, the corresponding number of shares of Class B common stock are surrendered and cancelled. A summary of activity related to redemptions of LLC Interests were as follows: 2022 2021 2020 Redemption and acquisition of LLC Interests Number of LLC Interests redeemed by non-controlling interest holders 52,074 29,601 194,009 Number of LLC Interests received by Shake Shack Inc. 52,074 29,601 194,009 Issuance of Class A common stock Shares of Class A common stock issued in connection with redemptions of LLC Interests 52,074 29,601 194,009 Cancellation of Class B common stock Shares of Class B common stock surrendered and cancelled 52,074 29,601 194,009 Stock Compensation Plan Activity The Company received an aggregate of 90,527 , 395,006 and 456,942 LLC Interests in connection with the activity under the stock compensation plan during fiscal 2022, fiscal 2021 and fiscal 2020, respectively. Dividend Restrictions Shake Shack Inc. is a holding company with no direct operations. As a result, its ability to pay cash dividends on its common stock, if any, is dependent upon cash dividends, distributions or other transfers from SSE Holdings. The amounts available to pay cash dividends are subject to certain covenants and restrictions set forth in the Revolving Credit Facility. As of December 28, 2022, essentially all of the net assets of SSE Holdings were restricted. Shake Shack Inc. Form 10-K | 101 NOTE 12: NON-CONTROLLING INTERESTS Shake Shack is the primary beneficiary and sole managing member of SSE Holdings and, as a result, consolidates the financial results of SSE Holdings. The Company reports a non-controlling interest representing the economic interest in SSE Holdings held by the other members of SSE Holdings. The Third Amended and Restated Limited Liability Company Agreement, as further amended, (the "LLC Agreement") of SSE Holdings provides that holders of LLC Interests may, from time to time, require SSE Holdings to redeem all or a portion of their LLC Interests for newly-issued shares of Class A common stock on a one -for-one basis. In connection with any redemption or exchange, the Company will receive a corresponding number of LLC Interests, increasing the total ownership interest in SSE Holdings. Changes in the ownership interest in SSE Holdings while the Company retains its controlling interest in SSE Holdings will be accounted for as equity transactions. As such, future redemptions or direct exchanges of LLC Interests in SSE Holdings by the other members of SSE Holdings will result in a change in ownership and reduce the amount recorded as non-controlling interest and increase additional paid-in capital. The following table summarizes the ownership interest in SSE Holdings: 2022 2021 LLC Interests Ownership % LLC Interests Ownership % Number of LLC Interests held by Shake Shack Inc. 39,284,998 93.2 % 39,142,397 93.1 % Number of LLC Interests held by non-controlling interest holders 2,869,513 6.8 % 2,921,587 6.9 % Total LLC Interests outstanding 42,154,511 100.0 % 42,063,984 100.0 % The weighted average ownership percentages for the applicable reporting periods are used to attribute Net loss and Other comprehensive loss to Shake Shack Inc. and the non-controlling interest holders. The non-controlling interest holders' weighted average ownership percentage for fiscal 2022, fiscal 2021 and fiscal 2020 was 6.9 %, 7.0 % and 7.7 % respectively. During fiscal 2022, an aggregate of 52,074 LLC Interests were redeemed by the non-controlling interest holders for newly-issued shares of Class A common stock, and the Company received 52,074 LLC Interests, increasing its total ownership interest in SSE Holdings to 93.2 %. During fiscal 2021, an aggregate of 29,601 LLC Interests were redeemed by the non-controlling interest holders for newly-issued shares of Class A common stock, and the Company received 29,601 LLC Interests, increasing its total ownership interest in SSE Holdings to 93.1 %. The following table summarizes the effects of changes in ownership of SSE Holdings on the Company's equity: 2022 2021 2020 Net loss attributable to Shake Shack Inc. $ ( 24,091 ) $ ( 8,655 ) $ ( 42,158 ) Other comprehensive income (loss): Unrealized holding gain (loss) on foreign currency translation adjustment ( 1 ) ( 2 ) 1 Transfers (to) from non-controlling interests: Increase in additional paid-in capital as a result of the redemption of LLC Interests 313 33 1,723 Increase (decrease) in additional paid-in capital as a result of stock option exercises and the related income tax effect ( 2,978 ) 1,829 5,909 Increase in additional paid-in-capital as a result of the issuance of Class A common stock sold in equity offerings — — 135,718 Total effect of changes in ownership interest on equity attributable to Shake Shack Inc. $ ( 26,757 ) $ ( 6,795 ) $ 101,193 The Company received an aggregate of 90,527 , 395,006 and 456,942 LLC Interests in connection with the activity under the stock compensation plan during fiscal 2022, fiscal 2021 and fiscal 2020, respectively. Shake Shack Inc. Form 10-K | 102 NOTE 13: EQUITY-BASED COMPENSATION A summary of equity-based compensation expense recognized was as follows: 2022 2021 2020 Stock options $ — $ 3 $ 322 Performance stock units 4,199 3,471 1,309 Restricted stock units 9,127 5,229 3,929 Equity-based compensation expense $ 13,326 $ 8,703 $ 5,560 Total income tax benefit recognized related to equity-based compensation $ 302 $ 223 $ 204 Equity-based compensation expense was as follows: 2022 2021 2020 General and administrative expenses $ 12,305 $ 7,907 $ 5,039 Labor and related expenses 1,021 796 521 Equity-based compensation expense $ 13,326 $ 8,703 $ 5,560 The Company capitalized $ 192 , $ 100 and $ 40 of equity-based compensation expense associated with the construction cost of our Shacks and certain digital and technology projects, during fiscal 2022, fiscal 2021 and fiscal 2020, respectively. Stock Options In January 2015, the Company adopted the 2015 Incentive Award Plan (the "2015 Plan") under which it may grant up to 5,865,522 stock options and other equity-based awards to team members, directors and officers. The stock options granted generally vest equally over periods ranging from one to five years . The Company does not use cash to settle any of the equity-based awards, and issues new shares of Class A common stock upon the exercise of stock options. The fair value of stock option awards was determined on the grant date using the Black-Scholes valuation model based on the following weighted average assumptions: 2022 2021 2020 Expected term (years) (1) 0 7.5 7.5 Expected volatility (2) — % 45.4 % 42.3 % Risk-free interest rate (3) — % 1.4 % 0.7 % Dividend yield (4) — % — % — % (1) Expected term represents the estimated period of time until an award is exercised and was determined using the simplified method. (2) Expected volatility is based on the historical volatility of a selected peer group over a period equivalent to the expected term. (3) The risk-free rate is an interpolation of yields on U.S. Treasury securities with maturities equivalent to the expected term. (4) A dividend yield of zero was used as the Company have no plans to declare dividends in the foreseeable future. Shake Shack Inc. Form 10-K | 103 A summary of stock option activity was as follows: Stock Options Weighted Average Exercise Price Aggregate Intrinsic Value Weighted Average Remaining Contractual Life (Years) Outstanding as of December 29, 2021 154,231 $ 21.77 Granted — — Exercised ( 20,200 ) 21.00 Forfeited — — Outstanding as of December 28, 2022 134,031 $ 21.88 $ 2,770 2.2 Options vested and exercisable as of December 28, 2022 134,031 $ 21.88 $ 2,770 2.2 Options expected to vest as of December 28, 2022 — $ — $ — — As of December 28, 2022, total unrecognized compensation expense related to unvested stock options was nil. Cash received from stock options exercised was $ 424 and the cash tax benefit realized for the tax deductions from these option exercises was $ 26 for fiscal 2022. The weighted average grant date fair value of options granted during fiscal 2022, fiscal 2021 and fiscal 2020 was nil , $ 58.92 , $ 16.21 , respectively. The total intrinsic value of stock options exercised during fiscal 2022, fiscal 2021 and fiscal 2020 was $ 631 , $ 30,533 and $ 25,824 , respectively. The total fair value of stock options vested during fiscal 2022, fiscal 2021 and fiscal 2020 was nil , $ 60 and $ 2,674 , respectively. The following table summarizes information about stock options outstanding and exercisable as December 28, 2022: Options Outstanding and Exercisable Number Outstanding at December 28, 2022 Weighted Average Remaining Contractual Life (Years) Weighted Average Exercise Price Exercise Price $ 21.00 125,512 2.1 $ 21.00 $ 34.62 7,411 3.4 $ 34.62 $ 36.41 1,108 3.9 $ 36.41 Performance Stock Units Under the 2015 Plan, the Company may grant performance stock units and other types of performance-based equity awards that vest based on the outcome of certain performance criteria that are established and approved by the Compensation Committee of the Board of Directors. The actual number of equity awards earned is based on the level of performance achieved over a predetermined performance period, relative to established financial goals, none of which are considered market conditions. For performance stock units granted during fiscal 2021, the amount of awards that can be earned ranges from 0 % to 200 % of the number of performance stock units granted, based on the achievement of approved financial goals over a one-year or three-year performance period. In addition to the performance conditions, performance stock units are also subject to a requisite service period and the awards vest ratably over four years years or cliff vest over three years . No performance stock units were granted during fiscal 2022. The fair value of performance stock units is determined based on the closing market price of our Class A common stock on the date of grant. Compensation expense related to the performance stock units is recognized using either a graded-vesting attribution method or straight-line over the vesting period based on the most probable outcome of the performance conditions. Shake Shack Inc. Form 10-K | 104 A summary of performance stock unit activity was as follows: Performance Stock Units Weighted Average Grant Date Fair Value Outstanding as of December 29, 2021 186,159 $ 90.31 Granted — — Performance achievement (1) 5,898 129.68 Vested ( 26,949 ) 88.18 Forfeited ( 5,286 ) 87.22 Outstanding as of December 28, 2022 159,822 $ 92.22 (1) Represents the incremental awards earned and/or awards forfeited based on the achievement of performance conditions . As of December 28, 2022, there were 159,822 performance stock units outstanding, of which none were vested. The weighted average grant date fair value of share awards granted during fiscal 2022, fiscal 2021 and fiscal 2020 was nil , $ 98.87 , and $ 57.20 , respectively. The total fair value of awards that vested during fiscal 2022, fiscal 2021 and fiscal 2020 was $ 1,869 , $ 3,083 and $ 2,730 , respectively. As of December 28, 2022, total unrecognized compensation expense related to unvested performance stock units was $ 6,396 , which is expected to be recognized over a weighted average period of 2.0 years. Restricted Stock Units Under the 2015 Plan, the Company may grant restricted stock units to team members, directors and officers. The restricted stock units granted generally vest equally over periods ranging from one to five years . The fair value of restricted stock units is determined based on the closing market price of our Class A common stock on the date of grant. Compensation expense related to the restricted stock units is recognized using a straight-line attribution method over the vesting period. A summary of restricted stock unit activity was as follows: Restricted Stock Units Weighted Average Grant Date Fair Value Outstanding as of December 29, 2021 231,429 $ 84.37 Granted 271,026 71.25 Vested ( 76,055 ) 78.02 Forfeited ( 30,547 ) 81.65 Outstanding as of December 28, 2022 395,853 $ 76.82 As of December 28, 2022, there were 395,853 restricted stock units outstanding, of which none were vested. The weighted average grant date fair value of share awards granted during fiscal 2022, fiscal 2021 and fiscal 2020 were $ 71.25 , $ 117.39 , and $ 57.41 , respectively. The total fair value of shares vested during fiscal 2022, fiscal 2021 and fiscal 2020 was $ 5,936 , $ 8,385 and $ 2,463 , respectively. As of December 28, 2022, total unrecognized compensation expense related to unvested restricted stock units was $ 22,519 , which is expected to be recognized over a weighted average period of 2.83 years. NOTE 14: INCOME TAXES Shake Shack is the sole managing member of SSE Holdings and, as a result, consolidates the financial results of SSE Holdings. SSE Holdings is treated as a partnership for U.S. federal and most applicable state and local income tax purposes. As a partnership, SSE Holdings is not subject to U.S. federal and certain state and local income taxes. Any taxable income or loss Shake Shack Inc. Form 10-K | 105 generated by SSE Holdings is passed through to and included in the taxable income or loss of its members, including the Company, on a pro rata basis. The Company is subject to U.S. federal income taxes, in addition to state and local income taxes with respect to its allocable share of any taxable income or loss of SSE Holdings, as well as any stand-alone income or loss generated by Shake Shack Inc. The Company is also subject to withholding taxes in foreign jurisdictions. Income Tax Expense The components of Loss before income taxes were as follows: 2022 2021 2020 Domestic $ ( 49,454 ) $ ( 38,833 ) $ ( 59,873 ) Foreign 25,169 21,498 14,396 Loss before income taxes $ ( 24,285 ) $ ( 17,335 ) $ ( 45,477 ) The components of Income tax expense (benefit) were as follows: 2022 2021¹ 2020 Current income taxes: Federal $ — $ — $ — State and local 1,427 275 190 Foreign 3,612 2,880 1,223 Total current income taxes 5,039 3,155 1,413 Deferred income taxes: Federal ( 4,939 ) ( 11,921 ) ( 12,638 ) State and local 1,582 1,542 11,282 Total deferred income taxes ( 3,357 ) ( 10,379 ) ( 1,356 ) Income tax expense (benefit) $ 1,682 $ ( 7,224 ) $ 57 (1) For fiscal 2021, certain amounts were reclassified for consistent presentation with the current year. Reconciliations of Income tax expense (benefit) computed at the U.S. federal statutory income tax rate to the recognized Income tax expense (benefit) and the U.S. statutory income tax rate to our effective tax rates were as follows: 2022 2021¹ 2020 Expected U.S. federal income taxes at statutory rate $ ( 5,100 ) 21.0 % $ ( 3,641 ) 21.0 % $ ( 9,550 ) 21.0 % State and local income taxes, net of federal benefit 2,103 ( 8.7 ) % 2,539 ( 14.6 ) % 5,776 ( 12.7 ) % Foreign withholding taxes 3,612 ( 14.9 ) % 2,880 ( 16.6 ) % 1,223 ( 2.7 ) % Tax credits ( 5,969 ) 24.6 % ( 3,655 ) 21.1 % ( 1,533 ) 3.4 % Non-controlling interest 122 ( 0.5 ) % ( 350 ) 2.0 % 537 ( 1.2 ) % Remeasurement of deferred tax assets in connection with other tax rate changes 225 ( 0.9 ) % 1,034 ( 6.0 ) % 5,433 ( 11.9 ) % Change in valuation allowance 4,955 ( 20.4 ) % ( 6,059 ) 35.0 % ( 2,264 ) 5.0 % Other 1,734 ( 7.1 ) % 28 ( 0.2 ) % 435 ( 1.0 ) % Income tax expense (benefit) $ 1,682 ( 6.9 ) % $ ( 7,224 ) 41.7 % $ 57 ( 0.1 ) % (1) For fiscal 2021, certain amounts were reclassified for consistent presentation with the current year. Shake Shack's effective income tax rates for fiscal 2022, fiscal 2021 and fiscal 2020 were ( 6.9 )%, 41.7 % and ( 0.1 )%, respectively. The decrease in our effective income tax rate from fiscal 2021 to fiscal 2022 was primarily driven by additional expense related to an increase in valuation allowance, increase in foreign tax expense, net expense related to equity-based Shake Shack Inc. Form 10-K | 106 compensation, partially offset by higher tax credits. The increase in our effective income tax rate from fiscal 2020 to fiscal 2021 was primarily driven by the increase in the income tax benefit from the release of the valuation allowance and higher tax credits, partially offset by higher foreign tax expense. Deferred Tax Assets and Liabilities The components of deferred tax assets and liabilities were as follows: December 28 2022 December 29 2021 (1) Deferred tax assets: Investment in partnership $ 89,660 $ 116,639 Tax Receivable Agreement 64,218 63,983 Operating lease liability 4,376 3,873 Financing lease liability 61 63 Deferred revenue 167 150 Equity-based compensation 380 263 Net operating loss carryforwards 134,989 108,207 Tax credits 19,257 13,297 Other assets 638 574 Total gross deferred tax assets 313,746 307,049 Valuation allowance ( 9,560 ) ( 5,173 ) Total deferred tax assets, net of valuation allowance 304,186 301,876 Deferred tax liabilities: Property and equipment ( 95 ) ( 21 ) Operating lease right-of-use asset ( 3,488 ) ( 3,121 ) Financing lease right-of-use asset ( 58 ) ( 61 ) Other liabilities ( 7 ) ( 5 ) Total gross deferred tax liabilities ( 3,648 ) ( 3,208 ) Net deferred tax assets $ 300,538 $ 298,668 (1) For fiscal 2021, certain amounts were reclassified for consistent presentation with the current year. As of December 28, 2022, the Company's federal and state net operating loss carryforwards for income tax purposes were $ 558,397 and $ 303,323 . If not utilized, $ 506,530 of the Company's federal net operating losses can be carried forward indefinitely, and the remainder will begin to expire in 2035. If not utilized $ 48,587 of the Company's state net operating loss carryforwards can be carried forward indefinitely, and the remainder will begin to expire in 2023. As of December 28, 2022, the Company had federal tax credit carryforwards of $ 18,660 which will begin to expire in 2025 and gross state tax credits of $ 756 which will begin to expire in 2023. As described in Note 11, Stockholders' Equity, the Company acquired an aggregate of 142,601 LLC Interests in connection with the redemption of LLC Interests and activity relating to its stock compensation plan during fiscal 2022. The Company recognized a deferred tax liability in the amount of $ 1,137 associated with the basis difference in its investment in SSE Holdings upon acquisition of these LLC Interests. As of December 28, 2022, the total deferred tax asset related to the basis difference in the Company's investment in SSE Holdings was $ 89,660 . The Company evaluates the realizability of its deferred tax assets on a quarterly basis and establishes valuation allowances when it is more likely than not that all or a portion of a deferred tax asset may not be realized. As of December 28, 2022, the Company concluded, based on the weight of all available positive and negative evidence, that all of its deferred tax assets are Shake Shack Inc. Form 10-K | 107 more likely than not to be realized, except New York City UBT and certain foreign tax credits no longer expected to be utilized before expiration. As such, a valuation allowance in the amount of $ 9,560 was recognized. The net change in valuation allowance for fiscal 2022 was an increase of $ 4,387 . Refer to Schedule II, Valuation and Qualifying Accounts for additional information. Uncertain Tax Positions There were no reserves for uncertain tax positions as of December 28, 2022 and December 29, 2021. Shake Shack Inc. was formed in September 2014 and did not engage in any operations prior to the IPO and Organizational Transactions. The statute of limitations remains open for tax years beginning in 2015 for Shake Shack Inc. Additionally, although SSE Holdings is treated as a partnership for U.S. federal and state income taxes purposes, it is still required to file an annual U.S. Return of Partnership Income, which is subject to examination by the Internal Revenue Service ("IRS"). The statute of limitations has expired for tax years through 2018 for SSE Holdings. Tax Receivable Agreement Pursuant to the Company's election under Section 754 of the Internal Revenue Code (the "Code"), the Company expects to obtain an increase in its share of the tax basis in the net assets of SSE Holdings when LLC Interests are redeemed or exchanged by the other members of SSE Holdings. The Company plans to make an election under Section 754 of the Code for each taxable year in which a redemption or exchange of LLC Interest occurs. The Company intends to treat any redemptions and exchanges of LLC Interests as direct purchases of LLC Interests for U.S. federal income tax purposes. These increases in tax basis may reduce the amounts that would otherwise be paid in the future to various tax authorities. They may also decrease gains (or increase losses) on future dispositions of certain capital assets to the extent tax basis is allocated to those capital assets. On February 4, 2015, the Company entered into a tax receivable agreement with certain of the then-existing members of SSE Holdings (the "Tax Receivable Agreement") that provides for the payment by the Company of 85 % of the amount of any tax benefits that are actually realized, or in some cases are deemed to realize, as a result of (i) increases in the Company's share of the tax basis in the net assets of SSE Holdings resulting from any redemptions or exchanges of LLC Interests, (ii) tax basis increases attributable to payments made under the Tax Receivable Agreement, and (iii) deductions attributable to imputed interest pursuant to the Tax Receivable Agreement (the "TRA Payments"). The Company expects to benefit from the remaining 15 % of any tax benefits that may actually realize. The TRA Payments are not conditioned upon any continued ownership interest in SSE Holdings or the Company. The rights of each member of SSE Holdings that is a party to the Tax Receivable Agreement, are assignable to transferees of their respective LLC Interests. During fiscal 2022, the Company acquired an aggregate of 52,074 LLC Interests in connection with the redemption of LLC Interests, which resulted in an increase in the tax basis of its investment in SSE Holdings subject to the provisions of the Tax Receivable Agreement. The Company recognized an additional liability in the amount of $ 844 for the TRA Payments due to the redeeming members, representing 85 % of the aggregate tax benefits the Company expects to realize from the tax basis increases related to the redemption of LLC Interests, after concluding it was probable that such TRA Payments would be paid based on estimates of future taxable income. No payments were made to the members of SSE Holdings pursuant to the Tax Receivable Agreement in fiscal 2022 and fiscal 2021. As of December 28, 2022, the total amount of TRA Payments due under the Tax Receivable Agreement was $ 234,893 , of which no amount was included in Other current liabilities on the Consolidated Balance Sheets. Refer to Note 17, Commitments and Contingencies, for additional information relating to the liabilities under the Tax Receivable Agreement. CARES Act On March 27, 2020, the U.S. government enacted the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act") to provide certain relief as a result of the COVID-19 pandemic. The CARES Act provides tax relief, along with other stimulus measures, including a provision for an Employee Retention Credit ("ERC") and retroactive technical correction of prior tax legislation for tax depreciation of certain qualified improvement property, among other changes. The CARES Act allows for a five-year carryback of federal NOLs generated in 2018 through 2020 and eliminates the 80% taxable income limitation by allowing corporate entities to fully utilize NOL carryforwards to offset taxable income in 2018 through 2020. Shake Shack Inc. Form 10-K | 108 As there is no authoritative guidance under U.S. GAAP on accounting for government assistance to for-profit business entities, the Company accounts for the ERC by analogy to International Accounting Standard ("IAS") 20, Accounting for Government Grants and Disclosure of Government Assistance. Subsequent to the second quarter of 2020, we began deferring the employer-paid portion of social security taxes; 50% of this was recognized at the end of 2021 and the other 50% and the end of 2022 as required by the CARES Act. Inflation Reduction Act On August 16, 2022, the U.S. government enacted the Inflation Reduction Act (“IRA”) into law. The IRA, among other things, enacted a 15% corporate minimum tax effective for tax years after December 31, 2022, a 1% tax on share repurchases after December 31, 2022, and created and extended certain tax-related energy incentives. The Company currently does not expect the tax-related provisions of the IRA to have a material impact on our financial results. NOTE 15: EARNINGS (LOSS) PER SHARE Basic loss per share of Class A common stock is computed by dividing Net loss attributable to Shake Shack Inc. by the weighted average number of shares of Class A common stock outstanding during the period. Diluted loss per share of Class A common stock is computed by dividing Net loss attributable to Shake Shack Inc. by the weighted average number of shares of Class A common stock outstanding adjusted to give effect to potentially dilutive securities. The following table sets forth reconciliations of the numerators and denominators used to compute basic and diluted earnings (loss) per share of Class A common stock (in thousands, except per share amounts): 2022 2021 2020 Numerator: Net loss attributable to Shake Shack Inc.—basic $ ( 24,091 ) $ ( 8,655 ) $ ( 42,158 ) Net loss attributable to Shake Shack Inc.—diluted $ ( 24,091 ) $ ( 8,655 ) $ ( 42,158 ) Denominator: Weighted average shares of Class A common stock outstanding—basic 39,237 39,085 37,129 Weighted average shares of Class A common stock outstanding—diluted 39,237 39,085 37,129 Loss per share of Class A common stock—basic $ ( 0.61 ) $ ( 0.22 ) $ ( 1.14 ) Loss per share of Class A common stock—diluted $ ( 0.61 ) $ ( 0.22 ) $ ( 1.14 ) The effect of potential share settlement of the Convertible Notes outstanding for the period is included as potentially dilutive shares of Class A common stock under application of the if-converted method in the computation of diluted earnings (loss) per share, except when the effect would be anti-dilutive. Refer to Note 8, Debt, for additional information. Shares of Class B common stock do not share in the earnings or losses of Shake Shack and are therefore not participating securities. As such, separate presentation of basic and diluted earnings (loss) per share of Class B common stock under the two-class method has not been presented. However, shares of Class B common stock outstanding for the period are considered potentially dilutive shares of Class A common stock under application of the if-converted method and are included in the computation of diluted earnings (loss) per share, except when the effect would be anti-dilutive. Shake Shack Inc. Form 10-K | 109 The following table presents potentially dilutive securities excluded from the computations of diluted loss per share of Class A common stock: 2022 2021 2020 Stock options 134,031 (1) 154,231 (1) 489,024 (1) Performance stock units 159,822 (1) 186,159 (1) 137,221 (1) Restricted stock units 395,853 (1) 231,429 (1) 258,493 (1) Shares of Class B common stock 2,869,513 (1) 2,921,587 (1) 2,951,188 (1) Convertible notes 1,466,975 (1) 1,466,975 (1) — (1) Number of securities outstanding at the end of the period that were excluded from the computation of diluted loss per share of Class A common stock because the effect would have been anti-dilutive. NOTE 16: SUPPLEMENTAL CASH FLOW INFORMATION The following table sets forth supplemental cash flow information: 2022 2021 2020 Cash paid for: Income taxes, net of refunds $ 3,731 $ 2,808 $ 1,612 Interest, net of amounts capitalized 252 252 643 Non-cash investing activities: Accrued purchases of property and equipment 26,591 22,241 15,515 Capitalized equity-based compensation 126 66 37 Non-cash financing activities: Establishment of liabilities under tax receivable agreement 844 1,093 4,024 NOTE 17: COMMITMENTS AND CONTINGENCIES Lease Commitments The Company is obligated under various operating leases for Shacks and the home office space, expiring in various years through 2044. Under certain of these leases, the Company is liable for contingent rent based on a percentage of sales in excess of specified thresholds and typically responsible for its proportionate share of real estate taxes, common area maintenance costs and other occupancy costs. Refer to Note 9, Leases, for additional information. Certain leases require the Company to obtain letters of credit. As of December 28, 2022, the Company held two letters of credit, one for $ 130 , which expires in February 2026 and the second for $ 603 , which expires in August 2023 and renews automatically for one-year periods through January 31, 2034. Purchase Commitments Purchase obligations include legally binding contracts, including commitments for the purchase, construction or remodeling of real estate and facilities, firm minimum commitments for inventory purchases, equipment purchases, marketing-related contracts, software acquisition/license commitments and service contracts. These obligations are generally short-term in nature and are recorded as liabilities when the related goods are received or services rendered. The Company also enters into long-term, Shake Shack Inc. Form 10-K | 110 exclusive contracts with certain vendors to supply food, beverages and paper goods, obligating the Company to purchase specified quantities. Legal Contingencies In December 2022, the Company refined the liability estimate related to settling both a private action and a regulatory action relating to New York City’s predictive scheduling laws based on additional information received in the period. The previous accrual of $ 6,750 has been reduced by $ 1,400 as of December 28, 2022. In November 2022, the Company mediated a matter alleging certain violations of the California Labor Code which was settled and an accrual in the amount of $ 1,360 has been recorded as of December 28, 2022. The Company is subject to various legal proceedings, claims and liabilities, involving employees and guests alike, which arise in the ordinary course of business and are generally covered by insurance. As of December 28, 2022, the amount of the ultimate liability with respect to these matters was not material. Liabilities under Tax Receivable Agreement As described in Note 14, Income Taxes, the Company is a party to the Tax Receivable Agreement under which it is contractually committed to pay certain of the members of SSE Holdings 85 % of the amount of any tax benefits that are actually realized, or in some cases are deemed to realize, as a result of certain transactions. The Company is not obligated to make any payments under the Tax Receivable Agreement until the tax benefits associated with the transactions that gave rise to the payments are realized. Amounts payable under the Tax Receivable Agreement are contingent upon, among other things, (i) generation of future taxable income over the term of the Tax Receivable Agreement and (ii) future changes in tax laws. If the Company does not generate sufficient taxable income in the aggregate over the term of the Tax Receivable Agreement to utilize the tax benefits, then it would not be required to make the related TRA Payments. As of December 28, 2022 and December 29, 2021, the Company recognized liabilities totaling $ 234,893 and $ 234,045 , respectively, relating to the obligations under the Tax Receivable Agreement, after concluding that it was probable that it would have sufficient future taxable income over the term of the Tax Receivable Agreement to utilize the related tax benefits. There were no transactions subject to the Tax Receivable Agreement for which the Company did not recognize the related liability, as the Company concluded that it would have sufficient future taxable income to utilize all of the related tax benefits generated by all transactions that occurred in fiscal 2022. NOTE 18: RELATED PARTY TRANSACTIONS Union Square Hospitality Group The Chairman of the Board of Directors serves as the Chief Executive Officer of Union Square Hospitality Group, LLC. As a result, Union Square Hospitality Group, LLC and its subsidiary, set forth below, are considered related parties. Hudson Yards Sports and Entertainment In fiscal 2011, Shake Shack entered into a Master License Agreement (as amended, "MLA") with Hudson Yards Sports and Entertainment LLC ("HYSE") to operate Shake Shack branded limited menu concession stands in sports and entertainment venues within the United States. In February 2019, the agreement was assigned to Hudson Yards Catering ("HYC"), the parent of HYSE. The agreement expires in January 2027 and includes five consecutive five-year renewal options at HYC's option. As consideration for these rights, HYC pays the Company a license fee based on a percentage of net food sales, as defined in the MLA. HYC also pays a percentage of profits on sales of branded beverages, as defined in the MLA. Classification 2022 2021 2020 Amounts received from HYC Licensing revenue $ 802 $ 320 $ 67 Shake Shack Inc. Form 10-K | 111 Classification December 28 2022 December 29 2021 Amounts due from HYC Accounts receivable, net $ 69 $ 90 Madison Square Park Conservancy The Chairman of the Board of Directors serves as a director of the Madison Square Park Conservancy ("MSP Conservancy"), with which Shake Shack has a license agreement and pays license fees to operate the Madison Square Park Shack. Classification 2022 2021 2020 Amounts paid to MSP Conservancy Occupancy and related expenses General and administrative expenses $ 1,224 $ 863 $ 846 Olo, Inc. The Chairman of the Board of Directors serves as a director of Olo, Inc. (formerly known as "Mobo Systems, Inc."), a platform the Company uses in connection with its mobile ordering application. Classification 2022 2021 2020 Amounts paid to Olo, Inc. Other operating expenses $ 431 $ 406 $ 242 Classification December 28 2022 December 29 2021 Amounts due to Olo, Inc. Accounts payable $ 39 $ 33 Block, Inc. The Company's Chief Executive Officer is a member of the board of directors of Block, Inc. (formerly known as "Square, Inc."). The Company currently uses certain point-of-sale applications, payment processing services, hardware and other enterprise platform services in connection with its kiosk technology, sales for certain off-site events and the processing of a limited amount of sales at certain locations. Classification 2022 2021 2020 Amounts paid to Block, Inc. Other operating expenses $ 4,337 $ 2,844 $ 1,697 Classification December 28 2022 December 29 2021 Amounts due to Block, Inc. Accounts payable $ 55 $ 52 USHG Acquisition Corp. The Company's Chief Executive Officer served on the board of directors of USHG Acquisition Corp. in 2022, in which the Company's Chairman of the Board of Directors serves as the chairman of the board of directors of USHG Acquisition Corp. USHG Acquisition Corp. is a newly organized blank check company incorporated for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities. No amounts were paid to USHG Acquisition Corp. during fiscal 2022, fiscal 2021 and fiscal 2020. No amounts were due to or due from USHG Acquisition Corp. as of both December 28, 2022 and December 29, 2021. Shake Shack Inc. Form 10-K | 112 Tax Receivable Agreement The Company entered into a Tax Receivable Agreement that provides for the payment by the Company of 85 % of the amount of any tax benefits that are actually realized, or in some cases are deemed to realize, as a result of certain transactions. Refer to Note 14, Income Taxes, for additional information. Classification 2022 2021 2020 Amounts paid to members (inclusive of interest) Other current liabilities $ — $ — $ 6,643 Classification December 28 2022 December 29 2021 Amounts due under the Tax Receivable Agreement Other current liabilities Liabilities under Tax Receivable Agreement, net of current portion $ 234,893 $ 234,045 Distributions to Members of SSE Holdings Under the terms of the SSE Holdings LLC Agreement, SSE Holdings is obligated to make tax distributions to its members. No tax distributions were payable to non-controlling interest holders as of December 28, 2022 and December 29, 2021. Classification 2022 2021 2020 Amounts paid to non-controlling interest holders Non-controlling interests $ 410 $ 968 $ 478 NOTE 19: GEOGRAPHIC INFORMATION Revenue by geographic area was as follows: 2022 2021 2020 United States $ 875,047 $ 718,128 $ 508,292 Other countries 25,439 21,765 14,575 Total revenue $ 900,486 $ 739,893 $ 522,867 Revenues are shown based on the geographic location of the Company's customers and licensees. The Company's long-lived assets are primarily located in the United States. Shake Shack Inc. Form 10-K | 113 Schedule I: Condensed Financial Information of Registrant SHAKE SHACK INC. CONDENSED BALANCE SHEETS (PARENT COMPANY ONLY) (in thousands, except share and per share amounts) December 28 2022 December 29 2021 ASSETS Current assets: Cash $ 7,152 $ 7,821 Prepaid expenses 62 64 Total current assets 7,214 7,885 Due from SSE Holdings 2,963 2,035 Deferred income taxes, net 307,025 304,442 Investment in SSE Holdings 337,939 350,794 Note receivable from SSE Holdings 209,013 201,080 Note receivable - conversion option 6,300 16,000 TOTAL ASSETS $ 870,454 $ 882,236 LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable 39 9 Accrued expenses 113 222 Due to SSE Holdings 16,975 14,109 Total current liabilities 17,127 14,340 Long-term debt 244,589 243,542 Liabilities under tax receivable agreement, net of current portion 234,893 234,045 Total liabilities 496,609 491,927 Commitments and contingencies Stockholders' equity: Preferred stock, no par value—10,000,000 shares authorized; none issued and outstanding as of December 28, 2022 and December 29, 2021. — — Class A common stock, $0.001 par value—200,000,000 shares authorized; 39,284,998 and 39,142,397 shares issued and outstanding as of December 28, 2022 and December 29, 2021, respectively. 39 39 Class B common stock, $0.001 par value—35,000,000 shares authorized; 2,869,513 and 2,921,587 shares issued and outstanding as of December 28, 2022 and December 29, 2021, respectively. 3 3 Additional paid-in capital 415,611 405,940 Accumulated deficit ( 41,808 ) ( 15,674 ) Accumulated other comprehensive income — 1 Total stockholders' equity 373,845 390,309 TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 870,454 $ 882,236 See accompanying Notes to Condensed Financial Statements. Shake Shack Inc. Form 10-K | 114 Schedule I: Condensed Financial Information of Registrant (continued) SHAKE SHACK INC. CONDENSED STATEMENTS OF LOSS (PARENT COMPANY ONLY) (in thousands) Fiscal Year Ended December 28 2022 December 29 2021 December 30 2020 Intercompany revenue $ 2,293 $ 2,878 $ 1,560 TOTAL REVENUE 2,293 2,878 1,560 General and administrative expenses 3,132 2,491 2,179 Intercompany expenses 67 — — TOTAL EXPENSES 3,199 2,491 2,179 INCOME (LOSS) FROM OPERATIONS ( 906 ) 387 ( 619 ) Equity in net loss from SSE Holdings ( 25,335 ) ( 19,393 ) ( 41,152 ) Other expense, net ( 1,767 ) ( 25,593 ) ( 1,147 ) Interest expense ( 1,047 ) ( 867 ) — LOSS BEFORE INCOME TAXES ( 29,055 ) ( 45,466 ) ( 42,918 ) Benefit from income taxes ( 2,921 ) ( 17,583 ) ( 760 ) NET LOSS $ ( 26,134 ) $ ( 27,883 ) $ ( 42,158 ) See accompanying Notes to Condensed Financial Statements. Shake Shack Inc. Form 10-K | 115 Schedule I: Condensed Financial Information of Registrant (continued) SHAKE SHACK INC. CONDENSED STATEMENTS OF COMPREHENSIVE LOSS (PARENT COMPANY ONLY) (in thousands) Fiscal Year Ended December 28 2022 December 29 2021 December 30 2020 Net loss $ ( 26,134 ) $ ( 27,883 ) $ ( 42,158 ) Other comprehensive income (loss), net of tax (1) : Change in foreign currency translation adjustment ( 1 ) ( 2 ) 1 OTHER COMPREHENSIVE INCOME (LOSS) ( 1 ) ( 2 ) 1 COMPREHENSIVE LOSS $ ( 26,135 ) $ ( 27,885 ) $ ( 42,157 ) (1) Net of tax benefit of $ 0 for fiscal years ended December 28, 2022, December 29, 2021 and December 30, 2020. See accompanying Notes to Condensed Financial Statements. Shake Shack Inc. Form 10-K | 116 Schedule I: Condensed Financial Information of Registrant (continued) SHAKE SHACK INC. CONDENSED STATEMENTS OF CASH FLOWS (PARENT COMPANY ONLY) (in thousands) Fiscal Year Ended December 28 2022 December 29 2021 December 30 2020 OPERATING ACTIVITIES Net loss $ ( 26,134 ) $ ( 27,883 ) $ ( 42,158 ) Adjustments to reconcile net loss to net cash used in operating activities: Equity in net loss from SSE Holdings 25,335 19,393 41,152 Amortization of debt issuance costs 1,047 867 — Equity-based compensation 614 526 555 Deferred income taxes ( 4,126 ) ( 17,583 ) ( 721 ) Unrealized loss on Note receivable - conversion option 9,700 32,200 — Other non-cash (income) expense ( 7,934 ) ( 6,609 ) 1,147 Changes in operating assets and liabilities: Accounts receivable — — 1 Prepaid expenses and other current assets 2 ( 19 ) 161 Due to SSE Holdings ( 728 ) ( 8,229 ) ( 1,254 ) Accounts payable 30 6 2 Accrued expenses 1,101 118 ( 29 ) NET CASH USED IN OPERATING ACTIVITIES ( 1,093 ) ( 7,213 ) ( 1,144 ) INVESTING ACTIVITIES Purchases of LLC Interests from SSE Holdings ( 7,619 ) ( 41,875 ) ( 171,180 ) Loan to SSE Holdings — ( 243,750 ) — NET CASH USED IN INVESTING ACTIVITIES ( 7,619 ) ( 285,625 ) ( 171,180 ) FINANCING ACTIVITIES Proceeds from issuance of convertible notes, net of discount — 243,750 — Debt issuance costs — ( 1,075 ) — Proceeds from issuance of Class A common stock sold in equity offerings, net of underwriting discounts, commissions and offering costs — — 144,861 Proceeds from issuance of Class A common stock to SSE Holdings upon settlement of equity awards 7,619 41,875 26,319 Proceeds from stock option exercises 424 6,640 8,033 Payments under tax receivable agreement — — ( 6,643 ) NET CASH PROVIDED BY FINANCING ACTIVITIES 8,043 291,190 172,570 INCREASE (DECREASE) IN CASH ( 669 ) ( 1,648 ) 246 CASH AT BEGINNING OF PERIOD 7,821 9,469 9,223 CASH AT END OF PERIOD $ 7,152 $ 7,821 $ 9,469 See accompanying Notes to Condensed Financial Statements. Shake Shack Inc. Form 10-K | 117 Schedule I: Condensed Financial Information of Registrant (continued) SHAKE SHACK INC. NOTES TO CONDENSED FINANCIAL STATEMENTS (PARENT COMPANY ONLY) (in thousands, except share and per share amounts) NOTE 1: ORGANIZATION Shake Shack Inc. (the "Parent Company") was formed on September 23, 2014 as a Delaware corporation and is a holding company with no direct operations. The Parent Company's assets consist primarily of its equity interest in SSE Holdings, LLC ("SSE Holdings"), certain deferred tax assets and its note receivable from SSE Holdings. The Parent Company's cash inflows are primarily from cash dividends or distributions and other transfers from SSE Holdings. The amounts available to the Parent Company to fulfill cash commitments and pay cash dividends on its common stock are subject to certain restrictions in SSE Holdings' Revolving Credit Facility. Refer to Note 8, Debt, in the accompanying Consolidated Financial Statements, for additional information. NOTE 2: BASIS OF PRESENTATION These Condensed Parent Company financial statements should be read in conjunction with the Consolidated Financial Statements of Shake Shack Inc. and the accompanying notes thereto, included in Part II, Item 8. For purposes of these condensed financial statements, the Parent Company's interest in SSE Holdings is recorded based upon its proportionate share of SSE Holdings' net assets (similar to presenting them on the equity method). The Parent Company is the sole managing member of SSE Holdings, and pursuant to the Third Amended and Restated LLC Agreement of SSE Holdings (the “SSE Holdings LLC Agreement”), receives compensation in the form of reimbursements for all costs associated with being a public company and maintaining its existence. Intercompany revenue consists of these reimbursement payments and is recognized when the corresponding expense to which it relates is recognized. Certain intercompany balances presented in these Condensed Parent Company financial statements are eliminated in the Company's Consolidated Financial Statements. The following table presents amounts in the Parent Company's Condensed Balance Sheets that were eliminated in consolidation: December 28 2022 December 29 2021 Assets Due from SSE Holdings $ 2,963 $ 2,035 Deferred income taxes, net 8,004 7,234 Note receivable from SSE Holdings 209,013 201,080 Note receivable - conversion option 6,300 16,000 Liabilities Due to SSE Holdings 16,975 14,109 Related party amounts that were not eliminated in the Company's Consolidated Financial Statements include the Parent Company's liabilities under the tax receivable agreement, which totaled $ 234,893 and $ 234,045 , respectively as of December 28, 2022 and December 29, 2021. Shake Shack Inc. Form 10-K | 118 The following table presents amounts in the Parent Company's Condensed Statements of Loss that were eliminated in consolidation: 2022 2021 2020 Intercompany revenue $ 2,293 $ 2,878 $ 1,560 Equity in net income (loss) from SSE Holdings ( 25,335 ) ( 19,393 ) ( 41,152 ) Other income (expense), net ( 1,767 ) ( 25,595 ) — Income tax expense (benefit) ( 769 ) ( 7,234 ) — NOTE 3: NOTE RECEIVABLE FROM SSE HOLDINGS In March 2021, contemporaneously with the issuance of the Convertible Notes described in Note 4, Debt, below, the Parent Company entered into a $ 250,000 intercompany note with SSE Holdings (the "Intercompany Note"). SSE Holdings promises to pay the Parent Company, for value received, the principal amount with interest of the Intercompany Note in March 2028. The Parent Company will exercise its right to convert the Intercompany Note to maintain at all times a one-to-one ratio between the number of common units, directly or indirectly, held by the Parent Company and the aggregate number of outstanding shares of Class A common stock. The Parent Company's right to convert the Intercompany Note into common units of SSE Holdings (the "Conversion Option") is required to be bifurcated from the Intercompany Note and shown separately on the Parent Company's Condensed Balance Sheets. The Conversion Option is to be recorded at fair value and remeasured at each subsequent reporting date. On the date of issuance, the Conversion Option was determined to be an asset with a fair value of $ 48,200 . As of December 28, 2022 and December 29, 2021, the fair value of the Conversion Option was $ 6,300 and $ 16,000 , respectively. The Parent Company recorded unrealized losses of $ 9,700 and $ 32,200 , respectively in fiscal 2022 and fiscal 2021, within Other income (expense), net due to the change in fair value of the Conversion Option. As of December 28, 2022 and December 29, 2021, the balance of the Note receivable from SSE Holdings was $ 209,013 and $ 201,080 , respectively, net of accretion. The Parent Company recognized interest income of $ 7,933 and $ 6,605 , respectively, in fiscal 2022 and fiscal 2021, within Other income (expense), net primarily associated with the accretion of the Conversion Option value at issuance. NOTE 4: DEBT In March 2021, the Parent Company issued $ 225,000 aggregate principal amount of 0% Convertible Senior Notes due 2028 (“Convertible Notes”) in a private placement to qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933. The Parent Company granted an option to the initial purchasers to purchase up to an additional $ 25,000 aggregate principal amount of Convertible Notes to cover over-allotments, which was subsequently fully exercised during March 2021, resulting in a total issuance of $ 250,000 aggregate principal amount of Convertible Notes. The Convertible Notes will mature on March 1, 2028, unless earlier converted, redeemed or repurchased in certain circumstances. Upon conversion, the Company pays or delivers, as the case may be, cash, shares of Class A common stock or a combination of cash and shares of Class A common stock, at the Company's election. Refer to Note 8, Debt, in the Company's Consolidated Financial Statements, included in Part II, Item 8, for additional information relating to the Convertible Notes. NOTE 5: COMMITMENTS AND CONTINGENCIES On February 4, 2015, the Parent Company entered into a tax receivable agreement with the non-controlling interest holders that provides for payments to the non-controlling interest holders of 85 % of the amount of any tax benefits that the Parent Company actually realizes, or in some cases is deemed to realize, as a result of certain transactions. Refer to Note 14, Income Taxes, to the Company's Consolidated Financial Statements included in Part II, Item 8, for additional information relating to the Parent Company's Tax Receivable Agreement. As described in Note 17, Commitments and Contingencies, to the Company's Consolidated Financial Statements, amounts payable under the Tax Receivable Agreement are contingent upon, among other things, (i) generation of future taxable income of Shake Shack Inc. over the term of the Tax Receivable Agreement and (ii) future Shake Shack Inc. Form 10-K | 119 changes in tax laws. As of December 28, 2022 and December 29, 2021, liabilities under the tax receivable agreement totaled $ 234,893 and $ 234,045 , respectively. NOTE 6: SUPPLEMENTAL CASH FLOW INFORMATION The following table sets forth supplemental cash flow information: 2022 2021 2020 Cash paid for: Income taxes $ — $ 19 $ 124 Non-cash investing activities: Accrued contribution related to stock option exercises 424 6,731 8,094 Class A common stock issued in connection with the acquisition of LLC Interests upon redemption by the non-controlling interest holders 313 33 1,723 Non-cash contribution made in connection with equity awards granted to employees of SSE Holdings 6,988 11,468 5,193 Non-cash financing activities: Establishment of liabilities under tax receivable agreement 844 1,093 4,024 Shake Shack Inc. Form 10-K | 120 Schedule II: Valuation and Qualifying Accounts Balance at beginning of period Additions Reductions Balance at end of period (in thousands) Charged to costs and expenses Charged to other accounts Deferred tax asset valuation allowance: Fiscal year ended December 30, 2020 $ 954 $ ( 2,610 ) $ 4,312 $ — $ 2,656 Fiscal year ended December 29, 2021 $ 2,656 $ ( 6,063 ) $ 8,580 $ — $ 5,173 Fiscal year ended December 28, 2022 $ 5,173 $ 4,955 $ ( 568 ) (1) $ — $ 9,560 (1) Amount relates to a valuation allowance established on deferred tax assets related to our investment in SSE Holdings. Shake Shack Inc. Form 10-K | 121 Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure. None.