NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(in thousands, except share and per share amounts)
Shake Shack Inc. Form 10-Q | 9
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 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 September 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 September 28, 2022, there were 402 Shacks in operation, system-wide, of which 232 were domestic Company-operated Shacks, 30 were domestic licensed Shacks and 140 were international licensed Shacks.
NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The accompanying unaudited Condensed Consolidated Financial Statements include the accounts of Shake Shack Inc. and its subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation. These interim Condensed Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP") and on a basis consistent in all material respects with the accounting policies described in its Annual Report on Form 10-K for the fiscal year ended December 29, 2021 ("2021 Form 10-K"). Certain information and footnote disclosures normally presented in annual financial statements prepared in accordance with GAAP have been condensed or omitted pursuant to such rules and regulations. These interim Condensed Consolidated Financial Statements should be read in conjunction with the consolidated financial statements and related notes thereto included in its 2021 Form 10-K. In the Company's opinion, all adjustments, which are normal and recurring in nature, necessary for a fair presentation of the financial position and results of operation have been included. Operating results for interim periods are not necessarily indicative of the results that may be expected for a full fiscal year.
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 September 28, 2022 and December 29, 2021, the net assets of SSE Holdings were $364,693 and $376,857, respectively. The assets of SSE Holdings are subject to certain restrictions in SSE Holdings' revolving credit agreement. Refer to Note 6, Debt, for additional information.
Fiscal Year
The Company operates on a 52/53 week fiscal year ending on the last Wednesday of December. Fiscal 2022 contains 52 weeks and ends on December 28, 2022. Fiscal 2021 contained 52 weeks and ended on December 29, 2021. Unless otherwise stated, references to years in this report relate to fiscal years.
Use of Estimates
The preparation of these Condensed 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.
10 | Shake Shack Inc. Form 10-Q
Recently Adopted Accounting Pronouncements
The Company adopted the Accounting Standards Update (“ASU”) summarized below in fiscal 2022.
| | | | | | | | |
Accounting Standards Update | Description | Date Adopted |
Government Assistance (Topic 832)—Disclosures by Business Entities about Government Assistance
(ASU 2021-10) | This ASU requires certain disclosures about transactions with a government that have been accounted for by analogizing to a grant or contribution accounting model to increase transparency about the types of transactions, the accounting for the transactions and the effect of the transactions on an entity’s financial statements.
The guidance of this ASU is primarily related to disclosures of certain transactions with a government and therefore did not have a material impact on the financial statements. Refer to Note 10, Income Taxes, for disclosure of our accounting for the Employee Retention Credit received. | December 30, 2021 |
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 our Condensed Consolidated Financial Statements.
NOTE 3: REVENUE
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.
During fiscal 2022, the Company concluded it has accumulated a sufficient level of historical data from a large pool of homogeneous transactions to allow us 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 the thirteen weeks ended March 30, 2022 that resulted in $1,281 of gift card breakage income. Inclusive of this cumulative catch-up, $1,415 of gift card breakage income was recognized during the thirty-nine weeks ended September 28, 2022. Gift card breakage income is included in Shack sales in the Condensed Consolidated Statements of Income (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
Shake Shack Inc. Form 10-Q | 11
expects the licensee to open. The transaction price is then allocated equally to each Shack expected to open. Revenue is recognized on a straight-line basis over the license term, therefore the performance obligation is satisfied over time, starting when a Shack opens through the end of the license term for the related Shack. 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 of 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.
Revenue recognized during the thirteen and thirty-nine weeks ended September 28, 2022 and September 29, 2021, disaggregated by type was as follows:
| | | | | | | | | | | | | | | | | | | | | | | |
| Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
Shack sales | $ | 219,501 | | | $ | 186,972 | | | $ | 639,346 | | | $ | 519,110 | |
Licensing revenue: | | | | | | | |
Sales-based royalties | 8,050 | | | 6,711 | | | 21,936 | | | 16,961 | |
Initial territory and opening fees | 263 | | | 212 | | | 675 | | | 566 | |
Total revenue | $ | 227,814 | | | $ | 193,895 | | | $ | 661,957 | | | $ | 536,637 | |
The aggregate amount of the transaction price allocated to performance obligations that are unsatisfied or partially unsatisfied as of September 28, 2022 was $19,808. 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:
| | | | | | | | | | | | | | |
| September 28 2022 | | December 29 2021 |
Shack sales receivables | $ | 6,607 | | | $ | 6,939 | |
Licensing receivables, net of allowance for doubtful accounts | 3,790 | | | 4,005 | |
Gift card liability | 1,743 | | | 3,297 | |
Deferred revenue, current | 892 | | | 763 | |
Deferred revenue, long-term | 14,358 | | | 12,669 | |
Revenue recognized during the thirteen and thirty-nine weeks ended September 28, 2022 and September 29, 2021 that was included in the respective liability balances at the beginning of the period was as follows:
| | | | | | | | | | | | | | | | | | | | | | | |
| Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
Gift card liability(1) | $ | 82 | | | $ | 73 | | | $ | 1,725 | | | $ | 400 | |
Deferred revenue | 234 | | | 203 | | | 638 | | | 543 | |
(1)For the thirty-nine weeks ended September 28, 2022, amount includes the cumulative catch-up adjustment that resulted in $1,281 of gift card breakage income as noted above.
12 | Shake Shack Inc. Form 10-Q
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.
As of September 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. The fair value of these investments is measured using Level 1 inputs. The carrying value of these investments in equity securities approximates fair value.
Assets measured at fair value on a recurring basis as of September 28, 2022 and December 29, 2021 were as follows:
| | | | | | | | | | | | | | | | | |
| | | Fair Value Measurements |
| | | September 28 2022 | | December 29 2021 |
| | | Level 1 | | Level 1 |
Equity securities: | | | | |
| Mutual funds | | $ | 80,015 | | | $ | 80,000 | |
Total Marketable securities | | $ | 80,015 | | | $ | 80,000 | |
Refer to Note 6, 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 recognized during the thirteen and thirty-nine weeks ended September 28, 2022 and September 29, 2021 was as follows:
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
Equity securities: | | | | | | | |
| Dividend income | $ | 290 | | | $ | 56 | | | $ | 502 | | | $ | 223 | |
| | | | | | | | |
| Realized gain (loss) on sale of investments | — | | | — | | | — | | | (5) | |
| Unrealized gain (loss) on equity securities | 161 | | | (80) | | | (400) | | | (117) | |
Total | $ | 451 | | | $ | (24) | | | $ | 102 | | | $ | 101 | |
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. There were no impairment charges recognized during the thirteen and thirty-nine weeks ended September 28, 2022 and September 29, 2021.
Shake Shack Inc. Form 10-Q | 13
NOTE 5: SUPPLEMENTAL BALANCE SHEET INFORMATION
The components of Other current liabilities as of September 28, 2022 and December 29, 2021 were as follows:
| | | | | | | | | | | |
| September 28 2022 | | December 29 2021 |
Sales tax payable | $ | 4,846 | | | $ | 4,575 | |
| | | |
Gift card liability | 1,743 | | | 3,297 | |
| | | |
Current portion of financing equipment lease liabilities | 2,546 | | | 2,711 | |
Legal reserve | 7,065 | | | 533 | |
Other | 3,297 | | | 3,385 | |
Other current liabilities | $ | 19,497 | | | $ | 14,501 | |
The components of Other long-term liabilities as of September 28, 2022 and December 29, 2021 were as follows:
| | | | | | | | | | | |
| September 28 2022 | | December 29 2021 |
Deferred licensing revenue | $ | 14,358 | | | $ | 12,669 | |
Long-term portion of financing equipment lease liabilities | 3,584 | | | 4,303 | |
Other | 2,646 | | | 5,801 | |
Other long-term liabilities | $ | 20,588 | | | $ | 22,773 | |
NOTE 6: DEBT
The components of Long-term debt as of September 28, 2022 and December 29, 2021 were as follows:
| | | | | | | | | | | |
| September 28 2022 | | December 29 2021 |
2021 Convertible Notes | $ | 250,000 | | | $ | 250,000 | |
Discount and debt issuance costs, net of amortization | 5,672 | | | 6,458 | |
Total Long-term debt | $ | 244,328 | | | $ | 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,
14 | Shake Shack Inc. Form 10-Q
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.
Shake Shack 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 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 for the thirteen and thirty-nine weeks ended September 28, 2022 was $262 and $786, respectively, and $262 and $605, respectively, for the thirteen and thirty-nine weeks ended September 29, 2021 and was included in Interest expense in the Condensed Consolidated Statements of Income (Loss). In connection with the issuance of the Convertible Notes, the Company also incurred consulting and advisory fees of $236 for the thirty-nine weeks ended September 29, 2021 and was included in General and administrative expenses in the Condensed Consolidated Statements of Income (Loss).
At September 28, 2022, the fair value of the Convertible Notes was approximately $168,250, 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 $50.0 million and issuance of letters of credit upon our request of up to $15.0 million. As of September 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 September 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 September 28, 2022, the Revolving Credit Facility had unamortized deferred financing costs of $67 which were included in Other assets on the Condensed Consolidated Balance Sheets. Total interest expense related to the Revolving Credit Facility for
Shake Shack Inc. Form 10-Q | 15
the thirteen and thirty-nine weeks ended September 28, 2022 was $28 and $101, respectively, and $37 and $442, respectively, for the thirteen and thirty-nine weeks ended September 29, 2021. Interest expense for the thirty-nine weeks ended September 29, 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 September 28, 2022, the Company was in compliance with all covenants.
NOTE 7: LEASES
Nature of 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, the contract is accounted for under the requirements of Accounting Standards Codification Topic 842.
Upon possession of a leased asset, the Company determines whether the lease is an operating or finance lease. Real estate leases are classified as operating leases and most of the 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.
Fixed minimum rent payments are recognized on a straight-line basis over the lease term from the date the Company takes possession of the leased property. Lease expense incurred before a Shack opens is recorded in Pre-opening costs on the Condensed Consolidated Statements of Income (Loss). Once a domestic Company-operated Shack opens, the straight-line lease expense and contingent rent, if applicable, is recorded in Occupancy and related expenses on the Condensed Consolidated Statements of Income (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 Condensed Consolidated Statements of Income (Loss).
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.
16 | Shake Shack Inc. Form 10-Q
A summary of operating and finance lease assets and lease liabilities as of September 28, 2022 and December 29, 2021 were as follows:
| | | | | | | | | | | | | | |
| Classification | September 28 2022 | | December 29 2021 |
Operating leases | Operating lease assets | $ | 370,536 | | | $ | 347,277 | |
Finance leases | Property and equipment, net | 5,911 | | | 6,810 | |
Total right-of-use assets | | $ | 376,447 | | | $ | 354,087 | |
| | | | |
| | | | |
| | | | |
| | | | |
Operating leases: | | | | |
| Operating lease liabilities, current | $ | 40,690 | | | $ | 35,519 | |
| Long-term operating lease liabilities | 429,165 | | | 400,113 | |
Finance leases: | | | | |
| Other current liabilities | 2,546 | | | 2,711 | |
| Other long-term liabilities | 3,584 | | | 4,303 | |
Total lease liabilities | | $ | 475,985 | | | $ | 442,646 | |
The components of lease expense for the thirteen and thirty-nine weeks ended September 28, 2022 and September 29, 2021 were as follows:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| | Classification | September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
Operating lease cost | Occupancy and related expenses Pre-opening costs General and administrative expenses | $ | 15,178 | | | $ | 12,497 | | | $ | 43,188 | | | $ | 37,213 | |
Finance lease cost: | | | | | | | | |
| Amortization of right-of-use assets | Depreciation and amortization expense | 750 | | | 715 | | | 2,275 | | | 2,003 | |
| Interest on lease liabilities | Interest expense | 55 | | | 47 | | | 162 | | | 158 | |
Variable lease cost | Occupancy and related expenses Other operating expenses Pre-opening costs General and administrative expenses | 3,887 | | | 3,347 | | | 10,994 | | | 9,556 | |
Short-term lease cost | Occupancy and related expenses | 264 | | | 79 | | | 395 | | | 228 | |
Total lease cost | | $ | 20,134 | | | $ | 16,685 | | | $ | 57,014 | | | $ | 49,158 | |
Shake Shack Inc. Form 10-Q | 17
As of September 28, 2022, future minimum lease payments for operating and finance leases consisted of the following:
| | | | | | | | | | | |
| Operating Leases | | Finance Leases |
2022(1) | $ | 8,674 | | | $ | 777 | |
2023 | 62,329 | | | 2,434 | |
2024 | 70,816 | | | 1,686 | |
2025 | 69,899 | | | 830 | |
2026 | 66,196 | | | 452 | |
Thereafter | 312,088 | | | 332 | |
Total minimum payments | 590,002 | | | 6,511 | |
Less: imputed interest | 131,214 | | | 367 | |
Total lease liabilities | $ | 458,788 | | | $ | 6,144 | |
(1)Operating leases are net of certain tenant allowance receivables that were reclassified to Other current assets as of September 28, 2022.
As of September 28, 2022 the Company had additional operating lease commitments of $130,410 for non-cancelable leases without a possession date, which begin to commence in 2022. 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 as of September 28, 2022 and December 29, 2021 were as follows:
| | | | | | | | | | | | | | | | |
| | September 28 2022 | | December 29 2021 | | |
Weighted average remaining lease term (years): | | | | | |
| Operating leases | 9.0 | | 9.5 | | |
| Finance leases | 5.3 | | 5.4 | | |
Weighted average discount rate: | | | | | |
| Operating leases | 5.5 | % | | 3.9 | % | | |
| Finance leases | 3.5 | % | | 3.1 | % | | |
Supplemental cash flow information related to leases for the thirty-nine weeks ended September 28, 2022 and September 29, 2021 were as follows:
| | | | | | | | | | | | | | | | | | | |
| | | Thirty-Nine Weeks Ended | | |
| | | September 28 2022 | | September 29 2021 | | |
Cash paid for amounts included in the measurement of lease liabilities: | | | | | |
| Operating cash flows from operating leases | $ | 45,398 | | | $ | 35,703 | | | |
| Operating cash flows from finance leases | 162 | | | 158 | | | |
| Financing cash flows from finance leases | 2,260 | | | 1,982 | | | |
Right-of-use assets obtained in exchange for lease obligations: | | | | | |
| Operating leases | 45,927 | | | 52,747 | | | |
| Finance leases | 1,376 | | | 2,922 | | | |
18 | Shake Shack Inc. Form 10-Q
NOTE 8: 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 as of September 28, 2022 and December 29, 2021.
| | | | | | | | | | | | | | | | | | | | | | | |
| September 28, 2022 | | December 29, 2021 |
| LLC Interests | | Ownership % | | LLC Interests | | Ownership % |
Number of LLC Interests held by Shake Shack Inc. | 39,279,699 | | | 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 | 42,149,212 | | | 100.0 | % | | 42,063,984 | | | 100.0 | % |
The weighted average ownership percentages for the applicable reporting periods are used to attribute Net income (loss) and Other comprehensive income (loss) to Shake Shack Inc. and the non-controlling interest holders. The non-controlling interest holders' weighted average ownership percentage for the thirteen and thirty-nine weeks ended September 28, 2022 was 6.8% and 6.9%, respectively. The non-controlling interest holders' weighted average ownership percentage for the thirteen and thirty-nine weeks ended September 29, 2021 was 6.9% and 7.0%, respectively.
Shake Shack Inc. Form 10-Q | 19
The following table summarizes the effects of changes in ownership of SSE Holdings on the Company's equity during the thirteen and thirty-nine weeks ended September 28, 2022 and September 29, 2021.
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
Net income (loss) attributable to Shake Shack Inc. | $ | (2,024) | | | $ | (2,178) | | | $ | (13,374) | | | $ | 1,075 | |
Other comprehensive income (loss): | | | | | | | |
| | | | | | | | |
| Unrealized gain (loss) on foreign currency translation adjustment | — | | | (1) | | | (2) | | | (2) | |
Transfers (to) from non-controlling interests: | | | | | | | |
| | | | | | | | |
| | | | | | | | |
| Increase in additional paid-in capital as a result of the redemption of LLC Interests | 7 | | | — | | | 313 | | | 33 | |
| | | | | | | | |
| | | | | | | | |
| | | | | | | | |
| Increase (decrease) in additional paid-in capital as a result of activity under its stock compensation plan and the related income tax effects | (182) | | | (386) | | | (2,790) | | | 2,185 | |
| | | | | | | | |
Total effect of changes in ownership interest on equity (loss) attributable to Shake Shack Inc. | $ | (2,199) | | | $ | (2,565) | | | $ | (15,853) | | | $ | 3,291 | |
The following table summarizes redemptions of LLC Interests activity during the thirteen and thirty-nine weeks ended September 28, 2022 and September 29, 2021.
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
Redemption and acquisition of LLC Interests | | | | | | | |
| Number of LLC Interests redeemed by non-controlling interest holders | 2,000 | | | — | | | 52,074 | | | 29,601 | |
| | | | | | | | |
| Number of LLC Interests received by Shake Shack Inc. | 2,000 | | | — | | | 52,074 | | | 29,601 | |
Issuance of Class A common stock | | | | | | | |
| Shares of Class A common stock issued in connection with redemptions of LLC Interests | 2,000 | | | — | | | 52,074 | | | 29,601 | |
| | | | | | | | |
Cancellation of Class B common stock | | | | | | | |
| Shares of Class B common stock surrendered and canceled | 2,000 | | | — | | | 52,074 | | | 29,601 | |
| | | | | | | | |
During the thirteen and thirty-nine weeks ended September 28, 2022, the Company received an aggregate of 11,029 and 85,228 LLC Interests, respectively, in connection with the activity under its stock compensation plan and 5,023 and 391,988 LLC Interests, respectively, during the thirteen and thirty-nine weeks ended September 29, 2021.
NOTE 9: EQUITY-BASED COMPENSATION
A summary of equity-based compensation expense recognized during the thirteen and thirty-nine weeks ended September 28, 2022 and September 29, 2021 was as follows:
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| | September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
Stock options | $ | — | | | $ | — | | | $ | — | | | $ | 3 | |
Performance stock units | 1,053 | | | 868 | | | 3,476 | | | 2,065 | |
Restricted stock units | 2,462 | | | 1,456 | | | 6,679 | | | 3,895 | |
Equity-based compensation expense | $ | 3,515 | | | $ | 2,324 | | | $ | 10,155 | | | $ | 5,963 | |
| | | | | | | |
Total income tax benefit recognized related to equity-based compensation | $ | 107 | | | $ | 44 | | | $ | 224 | | | $ | 174 | |
20 | Shake Shack Inc. Form 10-Q
Equity-based compensation expense recorded during the thirteen and thirty-nine weeks ended September 28, 2022 and September 29, 2021 was as follows:
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| | September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
General and administrative expenses | $ | 3,245 | | | $ | 2,094 | | | $ | 9,390 | | | $ | 5,358 | |
Labor and related expenses | 270 | | | 230 | | | 765 | | | 605 | |
Equity-based compensation expense | $ | 3,515 | | | $ | 2,324 | | | $ | 10,155 | | | $ | 5,963 | |
NOTE 10: 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 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.
The effective income tax rates for the thirteen weeks ended September 28, 2022 and September 29, 2021 were 39.5% and 19.3%, respectively. The increase was primarily driven by an increase in tax credits and a year-to-date rate catch-up adjustment, partially offset by higher tax expense driven by an increase in nondeductible expenses, higher foreign tax expense, and lower quarter over quarter benefit from equity-based compensation. Additionally, an increase in the Company's ownership interest in SSE Holdings increases its share of the taxable income (loss) of SSE Holdings. The weighted-average ownership interest in SSE Holdings was 93.2% and 93.1% for the thirteen weeks ended September 28, 2022 and September 29, 2021, respectively.
The effective income tax rates for the thirty-nine weeks ended September 28, 2022 and September 29, 2021 were 25.5% and 102.3%, respectively. The prior year tax rate was inclusive of a significant tax benefit related to equity-based compensation, which had an increasing impact to the tax rate. The year over year decrease was primarily driven by a decrease in tax benefits related to equity-based compensation, an increase in foreign tax expense, and an increase in pre-tax loss, partially offset by an increase in tax credits. Additionally, an increase in the Company's ownership interest in SSE Holdings increases its share of the taxable income (loss) of SSE Holdings. The Company's weighted-average ownership interest in SSE Holdings was 93.1% and 93.0% for the thirty-nine weeks ended September 28, 2022 and September 29, 2021, respectively.
Deferred Tax Assets and Liabilities
During the thirty-nine weeks ended September 28, 2022, the Company acquired an aggregate of 137,302 LLC Interests in connection with the redemption of LLC Interests, and activity relating to its stock compensation plan. The Company recognized a reduction in deferred tax asset in the amount of $437 associated with the basis difference in its investment in SSE Holdings upon acquisition of these LLC Interests. As of September 28, 2022, the total deferred tax asset related to the basis difference in the Company's investment in SSE Holdings was $104,071.
During the thirty-nine weeks ended September 28, 2022, the Company also recognized $232 of deferred tax assets related to additional tax basis increases generated from expected future payments under the Tax Receivable Agreement and related deductions for imputed interest on such payments. Refer to "Tax Receivable Agreement," herein for additional information.
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 September 28, 2022, the Company concluded, based on the weight of all available positive and negative evidence, that all of its deferred tax assets (except for those deferred tax assets relating to certain state tax credits and net operating losses and certain foreign tax credits) are more likely than not to be realized. As such, no additional valuation allowance was recognized.
Shake Shack Inc. Form 10-Q | 21
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 the thirty-nine weeks ended September 28, 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 $847 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. During the thirty-nine weeks ended September 28, 2022 and September 29, 2021, inclusive of interest, no payments were made to the parties to the Tax Receivable Agreement. As of September 28, 2022, the total amount of TRA Payments due under the Tax Receivable Agreement, was $234,892. Refer to Note 13, 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”), which allows for employers to claim a refundable tax credit against the employer share of Social Security tax equal to 70% of the qualified wages paid to employees after December 31, 2020 through September 30, 2021. The ERC was designed to encourage businesses to keep employees on the payroll during the COVID-19 pandemic.
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. In accordance with IAS 20, management determined it has reasonable assurance for receipt of the ERC and recorded the ERC benefit of $470 within Labor and other related expenses in the Condensed Consolidated Statement of Income (Loss) for the thirty-nine weeks ended September 28, 2022 as an offset to Social Security tax expense. A corresponding accrual for the benefit expected to be received was recorded within Accrued wages and related liabilities on the Condensed Consolidated Balance Sheet as of September 28, 2022.
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.
22 | Shake Shack Inc. Form 10-Q
NOTE 11: EARNINGS (LOSS) PER SHARE
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) for the thirteen and thirty-nine weeks ended September 28, 2022 and September 29, 2021.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| | | September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
Numerator: | | | | | | | |
| Net income (loss) attributable to Shake Shack Inc.—basic | $ | (2,024) | | | $ | (2,178) | | | $ | (13,374) | | | $ | 1,075 | |
| Reallocation of net income (loss) attributable to non-controlling interests from the assumed conversion of Class B shares | — | | | — | | | — | | | (837) | |
| Net income (loss) attributable to Shake Shack Inc.—diluted | $ | (2,024) | | | $ | (2,178) | | | $ | (13,374) | | | $ | 238 | |
Denominator: | | | | | | | |
| Weighted average shares of Class A common stock outstanding—basic | 39,274 | | | 39,137 | | | 39,221 | | | 39,066 | |
| Effect of dilutive securities: | | | | | | | |
| | Stock options | — | | | — | | | — | | | 162 | |
| | Performance stock units | — | | | — | | | — | | | 39 | |
| | Restricted stock units | — | | | — | | | — | | | 124 | |
| | Convertible Notes | — | | | — | | | — | | | 1,129 | |
| | Shares of Class B common stock | — | | | — | | | — | | | 2,928 | |
| | | | | | | | | |
| Weighted average shares of Class A common stock outstanding—diluted | 39,274 | | | 39,137 | | | 39,221 | | | 43,448 | |
| | | | | | | | | |
Earnings (loss) per share of Class A common stock—basic | $ | (0.05) | | | $ | (0.06) | | | $ | (0.34) | | | $ | 0.03 | |
Earnings (loss) per share of Class A common stock—diluted | $ | (0.05) | | | $ | (0.06) | | | $ | (0.34) | | | $ | 0.01 | |
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 6, 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.
The following table presents potentially dilutive securities excluded from the computations of diluted earnings (loss) per share of Class A common stock for the thirteen and thirty-nine weeks ended September 28, 2022 and September 29, 2021.
Shake Shack Inc. Form 10-Q | 23
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| September 28 2022 | | September 29 2021 | | | September 28 2022 | | September 29 2021 | |
Stock options | 138,306 | | (1) | — | | | | 138,306 | | (1) | — | | |
Performance stock units | 160,064 | | (1) | 45,707 | | (2) | | 160,064 | | (1) | 45,707 | | (2) |
Restricted stock units | 398,269 | | (1) | — | | | | 398,269 | | (1) | — | | |
Shares of Class B common stock | 2,869,513 | | (1) | — | | | | 2,869,513 | | (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 earnings (loss) per share of Class A common stock because the effect would have been anti-dilutive.
(2)Number of securities outstanding at the end of the period that were excluded from the computation of diluted earnings (loss) per share of Class A common stock because the performance conditions associated with these awards were not met assuming the end of the reporting period was the end of the performance period.
NOTE 12: SUPPLEMENTAL CASH FLOW INFORMATION
The following table sets forth supplemental cash flow information for the thirty-nine weeks ended September 28, 2022 and September 29, 2021:
| | | | | | | | | | | | | | |
| | Thirty-Nine Weeks Ended |
| | September 28 2022 | | September 29 2021 |
Cash paid for: | | | |
| Income taxes, net of refunds | $ | 2,904 | | | $ | 1,788 | |
| Interest, net of amounts capitalized | 179 | | | 198 | |
Non-cash investing activities: | | | |
| Accrued purchases of property and equipment | 31,593 | | | 15,661 | |
| | | | |
| | | | |
| | | | |
| Capitalized equity-based compensation | 93 | | | 47 | |
| | | | |
| | | | |
Non-cash financing activities: | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| Revolving Credit Facility amendment-related accrual | — | | | 46 | |
| Convertible Notes issuance-related accrual | — | | | 107 | |
| Establishment of liabilities under tax receivable agreement | 847 | | | 1,093 | |
| | | | |
NOTE 13: 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 7, Leases, for additional information.
Certain leases require the Company to obtain letters of credit. As of September 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 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,
24 | Shake Shack Inc. Form 10-Q
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, exclusive contracts with certain vendors to supply food, beverages and paper goods, obligating the Company to purchase specified quantities.
Legal Contingencies
During the thirty-nine weeks ended September 28, 2022, accruals of $6,750 were recorded in connection with settling both a private action and a regulatory action relating to New York City’s predictive scheduling laws.
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 September 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 10, 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. During the thirty-nine weeks ended September 28, 2022 and September 29, 2021, the Company recognized liabilities totaling $847 and $1,093, 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. As of September 28, 2022 and December 29, 2021, the total obligations under the Tax Receivable Agreement were $234,892 and $234,045, respectively. 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 during the thirty-nine weeks ended September 28, 2022.
NOTE 14: 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 subsidiaries, 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.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| Classification | | September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
| | | | | | | | | |
Amounts received from HYC | Licensing revenue | | $ | 180 | | | $ | 185 | | | $ | 402 | | | $ | 243 | |
Shake Shack Inc. Form 10-Q | 25
| | | | | | | | | | | | | | | | | |
| Classification | | September 28 2022 | | December 29 2021 |
| | | | | |
Amounts due from HYC | Accounts receivable, net | | $ | 203 | | | $ | 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.
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| | | Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| Classification | | September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
Amounts paid to MSP Conservancy | Occupancy and related expenses | | $ | 383 | | | $ | 215 | | | $ | 859 | | | $ | 646 | |
| | | | | | | | | |
| | | | | | | | | | | | | | | | | |
| Classification | | September 28 2022 | | December 29 2021 |
Amounts due to MSP Conservancy | Accrued expenses | | $ | 144 | | | $ | — | |
| | | | | |
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.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| Classification | | September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
Amounts paid to Olo, Inc. | Other operating expenses | | $ | 110 | | | $ | 130 | | | $ | 316 | | | $ | 340 | |
| | | | | | | | | |
| | | | | | | | | | | | | | | | | |
| Classification | | September 28 2022 | | December 29 2021 |
Amounts due to Olo, Inc. | Accounts payable | | $ | 37 | | | $ | 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.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| Classification | | September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
Amounts paid to Block, Inc. | Other operating expenses | | $ | 1,092 | | | $ | 833 | | | $ | 2,952 | | | $ | 2,049 | |
| | | | | | | | | |
| | | | | | | | | | | | | | | | | |
| Classification | | September 28 2022 | | December 29 2021 |
Amounts due to Block, Inc. | Accounts payable | | $ | 47 | | | $ | 52 | |
| | | | | |
USHG Acquisition Corp.
The Company's Chief Executive Officer serves on the board of directors of USHG Acquisition Corp. 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
26 | Shake Shack Inc. Form 10-Q
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 the thirty-nine weeks ended September 28, 2022 and September 29, 2021. No amounts were due to or due from USHG Acquisition Corp. as of both September 28, 2022 and December 29, 2021.
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 10, Income Taxes, for additional information. No amounts were paid to members during the thirty-nine weeks ended September 28, 2022 and September 29, 2021.
| | | | | | | | | | | | | | | | | |
| Classification | | September 28 2022 | | December 29 2021 |
Amounts due under the Tax Receivable Agreement | Other current liabilities Liabilities under Tax Receivable Agreement, net of current portion | | $ | 234,892 | | | $ | 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 September 28, 2022 and December 29, 2021, respectively.
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| | | Thirteen Weeks Ended | | Thirty-Nine Weeks Ended |
| Classification | | September 28 2022 | | September 29 2021 | | September 28 2022 | | September 29 2021 |
Amounts paid to non-controlling interest holders | Non-controlling interests | | $ | 65 | | | $ | 172 | | | $ | 389 | | | $ | 878 | |
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