As
filed with the U.S. Securities and Exchange Commission on June 6, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
SHAKE
SHACK INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
47-1941186 |
(State
or other jurisdiction of
incorporation
or organization) |
(I.R.S.
Employer
Identification
No.) |
225
Varick Street, Suite 301
New
York, NY 10014
Telephone:
(646) 747-7200
(Address,
including zip code, and telephone number, including area code, of registrant's principal executive offices)
Ronald
Palmese, Jr., Esq.
Chief Legal Officer
225
Varick Street, Suite 301
New
York, NY 10014
Telephone:
(646) 747-7241
(Address,
including zip code, and telephone number, including area code, of agent for service)
Copies
to:
|
Louis Rambo, Esq.
Proskauer
Rose LLP
Eleven
Times Square
New
York, New York 10036
Tel
(212) 969-3000
Fax
(212) 969-2900 |
APPROXIMATE
DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this registration statement.
If the only
securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box. ¨
If any of the
securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. x
If this Form is
filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ¨
If this Form is
a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is
a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective on filing
with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is
a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities
or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by
check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one): ¨
| Large
accelerated filer |
x |
|
Accelerated
filer |
¨ |
| Non-accelerated
filer |
¨ |
(Do
not check if a smaller reporting company) |
Smaller
reporting company |
¨ |
| |
|
|
Emerging
growth company |
¨ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ¨
|
EXPLANATORY NOTE
This registration statement contains two prospectuses:
| • | A base prospectus (the “Base Prospectus”) which covers
the offering, issuance and sale by us or the offering and sale by selling securityholders of the securities identified in the Base Prospectus
from time to time in one or more offerings; and |
| • | A prospectus to be used for the offering and sale by the selling stockholders
named in such prospectus of up to a maximum of 5,626,015 shares of our Class A Common Stock (the “Resale Prospectus”). |
The Base Prospectus immediately follows this explanatory note. The specific
terms of any securities to be offered pursuant to the Base Prospectus will be specified in one or more prospectus supplements to the Base
Prospectus. The Resale Prospectus immediately follows the Base Prospectus.
PROSPECTUS
Debt Securities
Preferred Stock
Class A Common Stock
Depositary Shares
Warrants
Rights
Units
Shake Shack Inc. (the "Company")
or selling securityholders may, from time to time, offer the securities described in this prospectus separately or together in any combination,
in one or more classes or series, in amounts, at prices and on terms that will be determined at the time of the offering. We or selling
securityholders may also offer securities upon conversion of debt securities or preferred stock or upon the exercise of warrants.
This prospectus provides a general description
of the securities we or any selling securityholders may offer. We may provide the specific terms of the securities to be offered in prospectus
supplements and/or in free writing prospectuses accompanying this prospectus. We may also provide a specific plan of distribution for
any securities to be offered in a prospectus supplement and/or in a free writing prospectus. Supplements and/or free writing prospectuses
may also add, update or change information in this prospectus. You should carefully read this prospectus and any prospectus supplement
and free writing prospectus accompanying this prospectus, together with any documents incorporated by reference herein, before you invest
in our securities.
Our Class A Common Stock is listed
on the New York Stock Exchange under the symbol "SHAK." We have two classes of common stock: Class A Common Stock and Class B
Common Stock. Each share of Class A Common Stock and Class B Common Stock entitles its holder to one vote on all matters presented
to our stockholders generally. All of our Class B Common Stock is held by the Continuing SSE Equity Owners (as defined herein) on
a one-to-one basis with the number of LLC Interests of SSE Holdings they own. See "Prospectus Summary."
The last reported sale price of our Class A
Common Stock on June 4, 2024 was $91.68 per share.
Investing in our securities involves
certain risks. See "Risk Factors" beginning on page 2 of this prospectus
and "Risk Factors" in our 2023 10-K (as defined herein), which is incorporated by reference herein, as well as in any other
subsequently filed annual, quarterly or current reports and the applicable prospectus supplement.
Neither the Securities and Exchange
Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is June 6, 2024
TABLE OF CONTENTS
Page
For investors outside the United States: We have
not and the selling stockholders have not done anything that would permit this offering or possession or distribution of this prospectus
in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who
come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares
of Class A Common Stock and the distribution of this prospectus outside the United States.
About
This Prospectus
This prospectus is part of a registration statement
on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, utilizing a "shelf" registration or
continuous offering process. Under this shelf registration process, we and any selling securityholders may, from time to time, sell any
combination of securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description
of the securities we or any selling stockholders may offer. Each time we or any selling stockholders sells securities, pursuant to the
registration statement of which this prospectus forms a part, we, such selling securityholders, or parties acting on our behalf, will
provide a prospectus supplement and/or free writing prospectus that will contain specific information about the terms of that offering
and the securities being sold in that offering. The applicable prospectus supplement or free writing prospectus may also add, update or
change information contained in this prospectus. If the information varies between this prospectus and the accompanying prospectus supplement
or free writing prospectus, you should rely on the information in the prospectus supplement or free writing prospectus.
You should rely only on the information contained
or incorporated by reference in this prospectus, any prospectus supplement and any free writing prospectus prepared by or on behalf of
us or to which we have referred you. We have not authorized anyone, including any selling stockholders, to provide you with different
information. If anyone provides you with different or inconsistent information, you should not rely on it. We take no responsibility for,
and can provide no assurance as to the reliability of, any other information that others may give you.
Before purchasing any securities, you should carefully
read both this prospectus, any prospectus supplement and any free writing prospectus, together with the additional information described
under the heading "Information Incorporated by Reference." You should assume that the information contained in this prospectus,
any prospectus supplement or any free writing prospectus is accurate only as of the date on its respective cover, and that any information
incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our
business, financial condition, results of operations and prospects may have changed since those dates.
This prospectus contains summaries of certain provisions
contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the
summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed,
will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the heading "Where You Can Find More Information." This prospectus
and any applicable prospectus supplement or free writing prospectus do not constitute an offer to sell or the solicitation of an offer
to buy any securities other than the registered securities to which they relate. Neither we nor any selling stockholder are making offers
to sell any securities described in this prospectus in any jurisdiction in which an offer or solicitation is not authorized or in which
the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation.
As used in this prospectus, unless the context
otherwise requires:
| • | “we,” “us,”
“our,” the “Company,” “Shake Shack” and other similar references refer to
Shake Shack Inc., and, unless otherwise stated, all of its subsidiaries, including SSE Holdings, LLC, which we refer to as “SSE
Holdings,” and all of its subsidiaries. We are a holding company with no direct operations, which are conducted by SSE Holdings.
We also are the sole managing member of SSE Holdings. |
| • | “Original SSE Equity Owners”
refers to the owners of SSE Holdings prior to our IPO (as defined below). |
| • | “Continuing SSE Equity Owners”
refers to those Original SSE Equity Owners that continue to own LLC Interests (as defined below) as of the date of this prospectus
and who may redeem their remaining LLC Interests for shares of our Class A Common Stock, including the Meyer Group (as defined
below). |
| • | “Former SSE Equity Owners”
refers to those (i) Original SSE Equity Owners who previously redeemed all of their LLC Interests for shares of our Class A
Common Stock and (ii) affiliate entities of former members of SSE Holdings, which, immediately after our IPO, we issued shares of
our Class A Common Stock to as merger consideration upon the acquisition by way of merger of these affiliate entities that were owned
by such former members. |
| • | "IPO" refers to the Company's
IPO, which closed on February 4, 2015. |
| • | “LLC Interests” refers to the single class of common
membership interests of SSE Holdings. |
| • | “Meyer Group” refers collectively to (i) Daniel
Meyer, (ii) the Daniel H. Meyer Investment Trust (the “Investment Trust”), and (iii) the DHM 2012 Gift Trust
U/A/D 10/31/12 (the “Gift Trust”), of which Mr. Meyer’s spouse is a trustee and beneficiary, which, together
with certain other Original SSE Equity Owners, are parties to the Stockholders Agreement, as amended, as described in “Certain
Relationships and Related Party Transactions, and Director Independence—Stockholders Agreement” in our 2024 Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 25, 2024 (the “2024 Proxy Statement”) incorporated by reference
into our Annual Report on Form 10-K for the fiscal year ended December 27, 2023, filed with the SEC on February 29, 2024
(the "2023 10-K"), each of which is incorporated by reference herein. |
TRADEMARKS
This prospectus and
the documents incorporated by reference herein include our trademarks, trade names and service marks, such as “Shake Shack®,”
“ShackBurger®,” “
®,”
“
” “Shack-Cago Dog®,” “SmokeShack®,”
“ShackMeister®,” “Shack20®,” “Pooch-ini®”
and “Stand for Something Good®,” which are protected under applicable intellectual property laws and are our
property. This prospectus and the documents incorporated by reference herein also contain trademarks, trade names and service marks of
other companies, which are the property of their respective owners. Solely for convenience, trademarks, trade names and service marks
referred to in this prospectus and the documents incorporated by reference herein may appear without the ®, ™ or
SM symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under
applicable law, our rights or the right of the applicable licensor to these trademarks, trade names and service marks. We do not intend
our use or display of other parties’ trademarks, trade names or service marks to imply, and such use or display should not be construed
to imply, a relationship with, or endorsement or sponsorship of us by, these other parties.
Prospectus
Summary
This summary highlights selected information
contained elsewhere, or incorporated by reference, in this prospectus. This summary does not contain all of the information that you should
consider before deciding to invest in our securities. You should carefully read the entire prospectus, any accompanying prospectus supplement
and any related free writing prospectus, including the risks of investing in our securities discussed under the heading "Risk Factors"
contained herein and in any accompanying prospectus supplement and any related free writing prospectus, and under a similar heading in
other documents that are incorporated by reference into this prospectus and any accompanying prospectus. You also should carefully read
the information incorporated by reference into this prospectus, including our financial statements and the exhibits to the registration
statement of which this prospectus is a part.
OVERVIEW OF SHAKE SHACK
Shake
Shack is a modern day "roadside" burger stand serving a classic American menu of premium burgers, chicken sandwiches, hot dogs,
crinkle cut fries, shakes, frozen custard, beer and wine. Originally founded in 2001 by Danny Meyer's Union Square Hospitality Group ("USHG"),
which owns and operates some of New York City's most acclaimed and popular restaurants — such as Union Square Cafe, Gramercy Tavern
and The Modern, to name a few — Shake Shack began as a hot dog cart to support the rejuvenation of New York City's Madison Square
Park through its Conservancy's first art installation, "I Y Taxi."
The cart was an instant success, with lines forming daily throughout the summer months over the next three years. In response, the city's
Department of Parks and Recreation awarded Shake Shack a contract to create a kiosk to help fund the park's future. In 2004, Shake Shack
officially opened. It soon became a gathering place for locals and visitors alike, and a beloved New York City institution, garnering
significant media attention, critical acclaim and a passionately-devoted following. Since its inception, Shake Shack has grown rapidly
— with over 520 locations system-wide, including over 335 in 33 U.S.
States and the District of Columbia, and 185 international locations across London, Hong Kong, Shanghai, Singapore, Mexico City, Istanbul,
Dubai, Tokyo, Seoul and more — and we continue to expand globally bringing the Shake Shack
experience to new guests around the world.
OUR CORPORATE INFORMATION
Shake Shack Inc. was incorporated as a Delaware
corporation on September 23, 2014. Our corporate headquarters are located at 225 Varick Street, Suite 301, New York, New York
10014. Our telephone number is (646) 747-7200. Our principal website address is www.shakeshack.com. The information on any of our
websites is deemed not to be incorporated in this prospectus or to be part of this prospectus.
Risk
Factors
Investing in our securities involves a high degree
of risk. Before making an investment decision, you should carefully consider the risks and uncertainties described under the heading “Risk
Factors” contained in the applicable prospectus supplement and any free writing prospectus, all of the information included or incorporated
by reference in this prospectus and in the applicable prospectus supplement. In particular, you should consider the matters discussed
under "Risk Factors" in our most recent Annual Report on Form 10-K and in our most recent quarterly report on Form 10-Q,
as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference herein, as well as
other risk factors described under "Risk Factors" in any prospectus supplement and under a similar heading in other documents
that are incorporated by reference in this prospectus. Our business, financial condition and results of operations could be materially
and adversely affected by any of these risks or uncertainties. The risks and uncertainties described or incorporated by reference in this
prospectus are not the only risks and uncertainties that we face. Additional risks and uncertainties not presently known to us or that
we currently deem immaterial may also impair our business operations. If any of those risks actually occur, our business, financial condition
and results of operations may be materially and adversely affected. In that case, the trading price of our Class A Common Stock or
our other securities could decline, and you may lose all or part of your investment. The risks discussed or incorporated by reference
in this prospectus also include forward-looking statements, and our actual results may differ substantially from those discussed in these
forward-looking statements. See “Cautionary Note Regarding Forward-Looking Statements” in this prospectus.
Cautionary
Note Regarding Forward-Looking Statements
This prospectus and the documents incorporated
by reference herein contain forward-looking statements. All statements other than statements of historical facts contained or incorporated
by reference in this prospectus may be forward-looking statements. Statements regarding our future results of operations and financial
position, business strategy, outlook and plans and objectives of management for future operations, including, among others, statements
regarding expected new Shack openings, expected same-Shack sales growth, future capital expenditures and debt service obligations, are
forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “may,” “will,”
“should,” “expects,” “plans,” “anticipates,” “could,” “intends,”
“targets,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,”
“potential” or “continue” or the negative of these terms or other similar expressions.
Forward-looking statements involve known and unknown
risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be materially different
from any future results, performance or achievements expressed or implied by the forward-looking statements. We believe that these factors
include, but are not limited to, the following:
| ▪ | our inability to successfully identify and secure appropriate sites and timely develop and expand our operations; |
| ▪ | our inability to protect our brand and reputation; |
| ▪ | our failure to prevent food safety and food-borne illness incidents; |
| ▪ | shortages or interruptions in the supply or delivery of food products; |
| ▪ | our inability to maintain our international supply chain; |
| ▪ | our dependence on a small number of suppliers and a single distribution company for the majority of our
domestic distribution needs; |
| ▪ | our inability to protect against security breaches of confidential guest information; |
| ▪ | competition from other restaurants; |
| ▪ | changes in consumer tastes and nutritional and dietary trends; |
| ▪ | our inability to manage our growth; |
| ▪ | our inability to open profitable Shacks; |
| ▪ | our failure to generate projected same-Shack sales growth; |
| ▪ | our inability to maintain sufficient levels of cash flow, or access to capital, to meet growth expectations; |
| ▪ | our dependence on long-term non-cancelable leases; |
| ▪ | our failure to meet the operational and financial performance guidance we provide to the public; |
| ▪ | our dependence on key members of our executive management team; |
| ▪ | our inability to identify qualified individuals for our workforce; |
| ▪ | labor relations difficulties; |
| ▪ | our vulnerability to increased food commodity and energy costs; |
| ▪ | our vulnerability to health care costs and labor costs; |
| ▪ | our vulnerability to global financial market conditions; |
| ▪ | our sale of alcoholic beverages; |
| ▪ | our dependence on a limited number of licensees; |
| ▪ | our inability to maintain good relationships with our licensees; |
| ▪ | violations of the U.S. Foreign Corrupt Practices Act and similar worldwide anti-bribery and anti-kickback laws; |
| ▪ | our ability to adequately protect our intellectual property; |
| ▪ | our business model being susceptible to litigation; |
| ▪ | failure to obtain and maintain required licenses and permits to comply with alcoholic beverage or food control regulations; |
| ▪ | our vulnerability to adverse weather conditions in local or regional areas where our Shacks are located; |
| ▪ | our realization of any benefit from the tax receivable agreement entered into with the Continuing SSE
Equity Owners and our organizational structure; and |
| ▪ | the impact of any material weakness in our internal controls over financial reporting identified in connection
with the restatements set forth in our 2023 10-K. |
You should not rely upon forward-looking statements
as predictions of future events. We have based the forward-looking statements contained or incorporated by reference into this prospectus
primarily on current expectations and projections about future events and trends that we believe may affect our business, financial condition,
results of operations and prospects. The outcome of the matters described in these forward-looking statements is subject to risks, uncertainties
and other factors described above and in the section of this prospectus and any accompanying prospectus supplement entitled "Risk
Factors" and under a similar heading in documents incorporated by reference into this prospectus. Moreover, new risks and uncertainties
emerge from time to time, and it is not possible for us to predict all risks and uncertainties that could have an impact on the forward-looking
statements contained or incorporated by reference into this prospectus. We cannot assure you that the results, events and circumstances
reflected in the forward-looking statements will be achieved or occur and actual results, events or circumstances could differ materially
from those described in the forward-looking statements.
The forward-looking statements included or incorporated
by reference in this prospectus speak only as of the date made. Except as required by applicable law, we do not plan to publicly update
or revise any forward-looking statements, whether as a result of any new information, future events or otherwise.
Use of
Proceeds
We will retain broad discretion over the use of
the net proceeds from the sale of the securities by us. Unless otherwise specified in any prospectus supplement, we intend to use the
net proceeds from the sale of our securities by us offered by this prospectus for general corporate purposes. We will set forth in the
applicable prospectus supplement our intended use for the net proceeds received from the sale of any securities.
Unless the applicable prospectus supplement provides
otherwise, we will not receive any of the proceeds from the sale of our securities by selling securityholders.
Description
of Capital Stock
The following descriptions of our capital stock
and provisions of our Amended and Restated Certificate of Incorporation (“Certificate of Incorporation”) and our Second Amended
and Restated Bylaws (“Bylaws”) are summaries and are qualified by reference to the Certificate of Incorporation and the Bylaws,
which are filed as exhibits to the registration statement of which this prospectus forms a part.
Our authorized capital stock consists of 200,000,000
shares of Class A Common Stock, par value $0.001 per share, 35,000,000 shares of Class B Common Stock, par value $0.001 per
share, and 10,000,000 shares of blank check preferred stock.
Common Stock
As of May 29, 2024, there are 39,961,941 shares
of our Class A Common Stock issued and outstanding and 2,487,936 shares of our Class B Common Stock issued and outstanding.
Class A Common Stock
Voting Rights
Holders of our Class A Common Stock are entitled
to cast one vote per share. Holders of our Class A Common Stock are not entitled to cumulate their votes in the election of directors.
Generally, all matters to be voted on by stockholders must be approved by a majority (or, in the case of election of directors, by a plurality)
of the votes entitled to be cast by all stockholders present in person or represented by proxy, voting together as a single class. Except
as otherwise provided by law, amendments to the Certificate of Incorporation must be approved by a majority or, in some cases, a super-majority
of the combined voting power of all shares entitled to vote, voting together as a single class.
Dividend Rights
Holders of Class A Common Stock share ratably
(based on the number of shares of Class A Common Stock held) if and when any dividend is declared by the board of directors out of
funds legally available therefor, subject to any statutory or contractual restrictions on the payment of dividends and to any restrictions
on the payment of dividends imposed by the terms of any outstanding preferred stock.
Liquidation Rights
On our liquidation, dissolution or winding up,
each holder of Class A Common Stock will be entitled to a pro rata distribution of any assets available for distribution to common
stockholders.
Other Matters
Shares of Class A Common Stock are not subject
to redemption and do not have preemptive rights to purchase additional shares of Class A Common Stock. Holders of shares of our Class A
Common Stock do not have subscription, redemption or conversion rights. There are no redemption or sinking fund provisions applicable
to the Class A Common Stock. All the outstanding shares of Class A Common Stock are validly issued, fully paid and non-assessable.
Class B Common Stock
Issuance of Class B Common Stock with LLC Interests
Shares of Class B Common Stock will only be
issued in the future to the extent necessary to maintain a one-to-one ratio between the number of LLC Interests held by the Continuing
SSE Equity Owners and the number of shares of Class B Common Stock held by the Continuing SSE Equity Owners. Shares of Class B
Common Stock are transferable only together with an equal number of LLC Interests. Shares of Class B Common Stock will be cancelled
on a one-for-one basis if there is a redemption, or exchange, of LLC Interests of such Continuing SSE Equity Owners pursuant to the terms
of the SSE Holdings LLC Agreement.
Voting Rights
Holders of Class B Common Stock are entitled
to cast one vote per share, with the number of shares of Class B Common Stock held by each Continuing SSE Equity Owner being equivalent
to the number of LLC Interests held by such Continuing SSE Equity Owner. Holders of our Class B Common Stock are not entitled to
cumulate their votes in the election of directors.
Generally, all matters to be voted on by stockholders
must be approved by a majority (or, in the case of election of directors, by a plurality) of the votes entitled to be cast by all stockholders
present in person or represented by proxy, voting together as a single class. Except as otherwise provided by law, amendments to the Certificate
of Incorporation must be approved by a majority or, in some cases, a super-majority of the combined voting power of all shares entitled
to vote, voting together as a single class.
Dividend Rights
Holders of our Class B Common Stock do not
participate in any dividend declared by the board of directors.
Liquidation Rights
On our liquidation, dissolution or winding up,
holders of Class B Common Stock will not be entitled to receive any distribution of our assets.
Transfers
Pursuant to our Certificate of Incorporation and
the SSE Holdings LLC Agreement, each holder of Class B Common Stock agrees that:
| ▪ | the holder will not transfer any shares of Class B Common Stock to any person unless the holder transfers
an equal number of LLC Interests to the same person; and |
| ▪ | in the event the holder transfers any LLC Interests to any person, the holder will transfer an equal number
of shares of Class B Common Stock to the same person. |
Other Matters
Shares of Class B Common Stock are not subject
to redemption rights and do not have preemptive rights to purchase additional shares of Class B Common Stock. Holders of shares of
our Class B Common Stock do not have subscription, redemption or conversion rights. There are no redemption or sinking fund provisions
applicable to the Class B Common Stock. All outstanding shares of Class B Common Stock are validly issued, fully paid and non-assessable.
Preferred Stock
Our Certificate of Incorporation provides that
our board of directors has the authority, without action by the stockholders, to designate and issue up to 10,000,000 shares of preferred
stock in one or more classes or series and to fix the powers, rights, preferences, and privileges of each class or series of preferred
stock, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences and the number of shares
constituting any class or series, which may be greater than the rights of the holders of the common stock. There are no shares of preferred
stock outstanding.
The purpose of authorizing our board of directors
to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a stockholder vote on specific
issuances. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions, future financings and
other corporate purposes, could have the effect of making it more difficult for a third party to acquire, or could discourage a third
party from seeking to acquire, a majority of our outstanding voting stock. Additionally, the issuance of preferred stock may adversely
affect the holders of our Class A Common Stock by restricting dividends on the Class A Common Stock, diluting the voting power
of the Class A Common Stock or subordinating the liquidation rights of the Class A Common Stock. As a result of these or other
factors, the issuance of preferred stock could have an adverse impact on the market price of our Class A Common Stock.
Exclusive Venue
Our Certificate of Incorporation requires, to the
fullest extent permitted by law, that (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting
a claim of breach of a fiduciary duty owed by any of our directors, officers or other employees to us or our stockholders, (iii) any
action asserting a claim against us arising pursuant to any provision of the General Corporation Law of the State of Delaware ("DGCL")
or our Certificate of Incorporation or the Bylaws or (iv) any action asserting a claim against us governed by the internal affairs
doctrine will have to be brought only in the Court of Chancery in the State of Delaware. Although we believe this provision benefits us
by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, the provision may
have the effect of discouraging lawsuits against our directors and officers.
Anti-takeover Effects of Provisions of our Amended and Restated Certificate
of Incorporation, our Bylaws and Delaware Law
Our Certificate of Incorporation and Bylaws also
contain provisions that may delay, defer or discourage another party from acquiring control of us. We believe that these provisions, which
are summarized below, discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage
persons seeking to acquire control of us to first negotiate with our board of directors, which we believe may result in an improvement
of the terms of any such acquisition in favor of our stockholders. However, they also give our board of directors the power to discourage
acquisitions that some stockholders may favor.
Classified Board of Directors
Our Certificate of Incorporation provides that
our board of directors is divided into three classes, with the classes as nearly equal in number as possible and each class serving three-year
staggered terms. Pursuant to the terms of the Stockholders Agreement, directors designated by the Meyer Group may only be removed with
or without cause by the request of the party entitled to designate such director. In all other cases and at any other time, directors
may only be removed from our board of directors for cause by the affirmative vote of at least a majority of the confirmed voting power
of our Class A Common Stock and Class B Common Stock. These provisions may have the effect of deferring, delaying or discouraging
hostile takeovers, or changes in control of us or our management.
Authorized but Unissued Shares
The authorized but unissued shares of common stock
and preferred stock are available for future issuance without stockholder approval, subject to any limitations imposed by the listing
standards of the NYSE. These additional shares may be used for a variety of corporate finance transactions, acquisitions and employee
benefit plans. The existence of authorized but unissued and unreserved common stock and preferred stock could make more difficult or discourage
an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Requirements for Advance Notification of Stockholder Meetings, Nominations
and Proposals
Our Certificate of Incorporation provides that
stockholders at an annual meeting may only consider proposals or nominations specified in the notice of meeting or brought before the
meeting by or at the direction of our board of directors or by a qualified stockholder of record on the record date for the meeting, who
is entitled to vote at the meeting and who has delivered timely written notice in proper form to our secretary of the stockholder’s
intention to bring such business before the meeting. Our Certificate of Incorporation provides that, subject to applicable law, special
meetings of the stockholders may be called only by a resolution adopted by the affirmative vote of the majority of the directors then
in office. Our Bylaws prohibit the conduct of any business at a special meeting other than as specified in the notice for such meeting.
In addition, any stockholder who wishes to bring business before an annual meeting or nominate directors must comply with the advance
notice and duration of ownership requirements set forth in our Bylaws and provide us with certain information. These provisions may have
the effect of deferring, delaying or discouraging hostile takeovers or changes in control of us or our management.
Stockholder Action by Written Consent
Pursuant to Section 228 of the DGCL, any action
required to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without
a vote if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of our
stock entitled to vote thereon were present and voted, unless our Certificate of Incorporation provides otherwise. Our Certificate of
Incorporation provides that stockholder action by written consent is permitted only if the action to be effected by such written consent
and the taking of such action by such written consent have been previously approved by the board of directors.
Amendment of Certificate of Incorporation or Bylaws
The DGCL provides generally that the affirmative
vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation
or bylaws, unless a corporation’s certificate of incorporation or bylaws, as the case may be, requires a greater percentage. Our
Bylaws may be amended or repealed by a majority vote of our board of directors or by the affirmative vote of the holders of at least 66-2⁄3%
of the votes which all our stockholders would be entitled to cast in any annual election of directors. In addition, the affirmative vote
of the holders of at least 66-2⁄3% of the votes which all our stockholders would be entitled to cast in any election of directors
is required to amend or repeal or to adopt any provisions inconsistent with any of the provisions of our Certificate of Incorporation
described above.
The foregoing provisions of our Certificate of
Incorporation and Bylaws could discourage potential acquisition proposals and could delay or prevent a change in control. These provisions
are intended to enhance the likelihood of continuity and stability in the composition of our board of directors and in the policies formulated
by our board of directors and to discourage certain types of transactions that may involve an actual or threatened change of control.
These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal. The provisions also are intended to
discourage certain tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging others from
making tender offers for our shares and, as a consequence, they also may inhibit fluctuations in the market price of our shares of Class A
Common Stock that could result from actual or rumored takeover attempts. Such provisions also may have the effect of preventing changes
in our management or delaying or preventing a transaction that might benefit you or other minority stockholders.
In addition, we are subject to Section 203
of the DGCL. Subject to certain exceptions, Section 203 prevents a publicly held Delaware corporation from engaging in a ‘‘business
combination’’ with any ‘‘interested stockholder’’ for three years following the date that the person
became an interested stockholder, unless the interested stockholder attained such status with the approval of our board of directors or
unless the business combination is approved in a prescribed manner. A ‘‘business combination’’ includes, among
other things, a merger or consolidation involving us and the ‘‘interested stockholder’’ and the sale of more than
10% of our assets. In general, an ‘‘interested stockholder’’ is any entity or person beneficially owning 15% or
more of our outstanding voting stock and any entity or person affiliated with or controlling or controlled by such entity or person.
Limitations on Liability and Indemnification of Officers and Directors
Our Certificate of Incorporation and Bylaws provide
indemnification for our directors and officers to the fullest extent permitted by the DGCL. In connection with our initial public offering,
we entered into indemnification agreements with each of our directors that are, in some cases, broader than the specific indemnification
provisions contained under Delaware law. In addition, as permitted by Delaware law, our Certificate of Incorporation includes provisions
that eliminate the personal liability of our directors for monetary damages resulting from breaches of certain fiduciary duties as a director.
The effect of these provisions is to restrict our rights and the rights of our stockholders in derivative suits to recover monetary damages
against a director for breach of fiduciary duties as a director, except that a director will be personally liable for:
| • | any breach of his or her duty of loyalty to us or our stockholders; |
| • | acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law; |
| • | any transaction from which the director derived an improper personal benefit;
or |
| • | improper distributions to stockholders. |
These provisions may be held not to be enforceable
for violations of the federal securities laws of the United States.
Corporate Opportunities
In recognition that partners, principals, directors,
officers, members, managers and/or employees of the Original SSE Equity Owners and their affiliates and investment funds, which we refer
to as the Corporate Opportunity Entities, may serve as our directors and/or officers, and that the Corporate Opportunity Entities may
engage in activities or lines of business similar to those in which we engage, our Certificate of Incorporation provides for the allocation
of certain corporate opportunities between us and the Corporate Opportunity Entities. Specifically, none of the Corporate Opportunity
Entities has any duty to refrain from engaging, directly or indirectly, in the same or similar business activities or lines of business
that we do. In the event that any Corporate Opportunity Entity acquires knowledge of a potential transaction or matter which may be a
corporate opportunity for itself and us, we will not have any expectancy in such corporate opportunity, and the Corporate Opportunity
Entity will not have any duty to communicate or offer such corporate opportunity to us and may pursue or acquire such corporate opportunity
for itself or direct such opportunity to another person. In addition, if a director of our Company who is also a partner, principal, director,
officer, member, manager or employee of any Corporate Opportunity Entity acquires knowledge of a potential transaction or matter which
may be a corporate opportunity for us and a Corporate Opportunity Entity, we will not have any expectancy in such corporate opportunity.
In the event that any other director of ours acquires knowledge of a potential transaction or matter which may be a corporate opportunity
for us we will not have any expectancy in such corporate opportunity unless such potential transaction or matter was presented to such
director expressly in his or her capacity as such.
By becoming a stockholder in our Company, you will
be deemed to have notice of and consented to these provisions of our Certificate of Incorporation. Any amendment to the foregoing provisions
of our Certificate of Incorporation requires the affirmative vote of at least 66-2⁄3% of the votes which all our stockholders would
be entitled to cast in any annual election of directors.
Dissenters’ Rights of Appraisal and Payment
Under the DGCL, with certain exceptions, our stockholders
will have appraisal rights in connection with a merger or consolidation of Shake Shack. Pursuant to the DGCL, stockholders who properly
request and perfect appraisal rights in connection with such merger or consolidation will have the right to receive payment of the fair
value of their shares as determined by the Delaware Court of Chancery.
Stockholders’ Derivative Actions
Under the DGCL, any of our stockholders may bring
an action in our name to procure a judgment in our favor, also known as a derivative action, provided that the stockholder bringing the
action is a holder of our shares at the time of the transaction to which the action relates or such stockholder’s stock thereafter
devolved by operation of law and such suit is brought in the Court of Chancery in the State of Delaware. See "—Exclusive Venue’’
above.
Stockholders Agreement
In connection with our IPO, the Company entered
into the Stockholders Agreement with the Meyer Group and certain other Original SSE Equity Owners pursuant to which the Company has provided
specified board representation rights, governance rights and other rights. See ‘‘Certain Relationships and Related Party Transactions,
and Director Independence—Stockholders Agreement" in our 2024 Proxy Statement.
Registration Rights Agreement
In connection with our IPO, the Company entered
into the Registration Rights Agreement with the Original SSE Equity Owners pursuant to which the Original SSE Equity Owners have specified
rights to require the Company to register all or any portion of their shares under the Securities Act of 1933, as amended (the “Securities
Act”). See ‘‘Certain Relationships and Related Party Transactions, and Director Independence—Registration
Rights Agreement" in our 2024 Proxy Statement.
Transfer Agent and Registrar
The transfer agent and registrar for our Class A
Common Stock is American Stock Transfer & Trust Company, LLC.
The New York Stock Exchange
Our Class A Common Stock is listed on the
NYSE under the symbol "SHAK."
Description
of Debt Securities
We may offer unsecured general obligations, which
we refer to as the “debt securities” in this section. The debt securities will be issued from time to time under an indenture
and applicable supplemental indenture, if any, with respect to any series of debt securities, between us and a trustee. The indenture
and any supplemental indenture are technical documents with terms that have defined meanings. A prospectus supplement will contain a summary
of the indenture and any applicable supplemental indenture. We urge you to read the indenture, any applicable supplemental indenture and
the accompanying prospectus supplement describing the particular terms of the debt securities because they, and not this description,
define the rights of the debt security holders. A form of indenture is filed as an exhibit to the registration statement of which this
prospectus forms a part.
General
The following briefly summarizes the material provisions
of the form of indenture and the debt securities, other than pricing and related terms for a particular issuance, which will be described
in an accompanying prospectus supplement.
A form of each debt security, reflecting the particular
terms and provisions of a series of offered debt securities, as well as the indenture and supplemental indenture, if any, will be filed
with the SEC at the time of the offering.
Brief Description of the Debt Securities
The debt securities will represent unsecured general obligations of
the Company, unless otherwise provided in the prospectus supplement. As indicated in the applicable prospectus supplement, the debt securities
will either be senior debt or subordinated debt as described in the applicable prospectus supplement.
We will pay principal and interest on the debt
securities at our office or agency, which we maintain in New York City. At our option, we may make payments of interest by check mailed
to the debt security holders at their respective addresses as set forth in the register of debt securities. All payments with respect
to global debt securities, however, will be made by wire transfer of immediately available funds to the accounts specified by the holders
of the global debt securities. Until otherwise designated by us, our office or agency in New York City will be the office of the trustee
or an affiliate thereof maintained for payment purposes.
Information in the Prospectus Supplement
The prospectus supplement for any offered series of debt securities
will describe the following terms, as applicable:
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any limit on the aggregate principal amount; |
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the percentage of the principal amount at which the debt securities will be sold and, if applicable, the method of determining the price; |
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the maturity date or dates; |
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the rate at which the debt securities will bear interest, if any, and the interest payment dates; |
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if the debt securities are original issue discount debt securities, the yield to maturity; |
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the date or dates from which any interest will accrue, or how such date or dates will be determined, and the interest payment dates and any related record dates; |
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any provisions for the payment of additional amounts for taxes; |
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the denominations in which the currency or currency unit of the debt securities will be issuable if other than denominations of $2,000 and integral multiples of $1,000 in excess thereof; |
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the terms and conditions on which we may optionally redeem the debt securities; |
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the terms and conditions on which we may be required to redeem the debt securities; |
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any obligation for us to redeem, purchase or repay the debt securities at the option of a holder upon the happening of an event other than a change of control and certain sales of assets, which are specified in the indenture, and the terms and conditions of redemption, purchase or repayment; |
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the names and duties of any co-trustees, depositaries, authenticating agents, calculation agents, paying agents, transfer agents or registrars for the debt securities; |
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any changes in or additions to the covenants applicable to the particular debt securities being issued; |
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any additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal and interest, if any, with respect to such securities to be due and payable; |
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any material provisions of the applicable indenture described in this prospectus that do not apply to the debt securities; |
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any other terms of the debt securities, which may modify, supplement or delete any provision of the indenture as it applies to that series; and |
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any other specific terms of the debt securities. |
We will issue the debt securities only in registered
form. As currently anticipated, debt securities of a series will trade in book-entry form, and global notes will be issued in physical
(paper) form. Unless otherwise provided in the accompanying prospectus supplement, we will issue debt securities denominated in U.S. Dollars
and only in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Description
of Warrants
This section describes the general terms of the
warrants that we may offer and sell by this prospectus. This prospectus and any accompanying prospectus supplement will contain the material
terms and conditions for each warrant. The accompanying prospectus supplement may add, update or change the terms and conditions of the
warrants as described in this prospectus.
General
We may issue warrants to purchase debt securities,
preferred stock, common stock, depositary shares or units. Warrants may be issued independently or together with any securities and may
be attached to or separate from those securities. The warrants will be issued under warrant agreements to be entered into between us and
one or more banks or trust companies, as warrant agent or warrant agents, all of which will be described in the prospectus supplement
relating to the warrants we are offering. The warrant agent or warrant agents will act solely as our agent in connection with the warrants
and will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
Brief Description of the Debt Warrants
We may issue warrants for the purchase of our debt
securities. As explained below, each debt warrant will entitle its holder to purchase debt securities at the exercise price set forth
in, or to be determinable as set forth in, the related prospectus supplement. Debt warrants may be issued separately or together with
debt securities.
The debt warrants are to be issued under debt warrant
agreements to be entered into between us, and one or more banks or trust companies, as debt warrant agent or debt warrant agents, as will
be set forth in the prospectus supplement relating to the debt warrants being offered by the prospectus supplement and this prospectus.
The particular terms of each issue of debt warrants,
the debt warrant agreement relating to the debt warrants and the debt warrant certificates representing debt warrants will be described
in the applicable prospectus supplement, including, as applicable:
| · | the title of the debt warrants; |
| · | the initial offering price; |
| · | the title, aggregate principal amount and terms of the debt securities purchasable
upon exercise of the debt warrants; |
| · | the currency or currency units in which the offering price, if any, and the
exercise price are payable; |
| · | the title and terms of any related debt securities with which the debt warrants
are issued and the number of the debt warrants issued with each debt security; |
| · | the date, if any, on and after which the debt warrants and the related debt
securities will be separately transferable; |
| · | the principal amount of debt securities purchasable upon exercise of each
debt warrant and the price at which that principal amount of debt securities may be purchased upon exercise of each debt warrant; |
| · | if applicable, the minimum or maximum number of debt warrants that may be
exercised at any one time; |
| · | the date on which the right to exercise the debt warrants will commence and
the date on which the right will expire; |
| · | if applicable, a discussion of United States federal income tax, accounting
or other considerations applicable to the debt warrants; |
| · | whether the debt warrants represented by the debt warrant certificates will
be issued in registered or bearer form, and, if registered, where they may be transferred and registered; |
| · | anti-dilution provisions of the debt warrants, if any; |
| · | redemption or call provisions, if any, applicable to the debt warrants; |
| · | any additional terms of the debt warrants, including terms, procedures and
limitations relating to the exchange and exercise of the debt warrants; and |
Debt warrant certificates will be exchangeable
for new debt warrant certificates of different denominations and, if in registered form, may be presented for registration of transfer,
and debt warrants may be exercised at the corporate trust office of the debt warrant agent or any other office indicated in the related
prospectus supplement.
Before the exercise of debt warrants, holders of
debt warrants will not be entitled to payments of principal of, premium, if any, or interest, if any, on the debt securities purchasable
upon exercise of the debt warrants, or to enforce any of the covenants in the indenture.
Brief Description of the Equity Warrants
We may issue warrants for the purchase of our equity
securities, such as our preferred stock, common stock, depositary shares or units. As explained below, each equity warrant will entitle
its holder to purchase equity securities at an exercise price set forth in, or to be determinable as set forth in, the related prospectus
supplement. Equity warrants may be issued separately or together with equity securities.
The equity warrants are to be issued under equity
warrant agreements to be entered into between us and one or more banks or trust companies, as equity warrant agent or equity warrant agents,
as will be set forth in the prospectus supplement relating to the equity warrants being offered by the prospectus supplement and this
prospectus.
The particular terms of each issue of equity warrants,
the equity warrant agreement relating to the equity warrants and the equity warrant certificates representing equity warrants will be
described in the applicable prospectus supplement, including, as applicable:
| · | the title of the equity warrants; |
| · | the initial offering price; |
| · | the aggregate number of equity warrants and the aggregate number of shares
of the equity security purchasable upon exercise of the equity warrants; |
| · | the currency or currency units in which the offering price, if any, and the
exercise price are payable; |
| · | if applicable, the designation and terms of the equity securities with which
the equity warrants are issued, and the number of equity warrants issued with each equity security; |
| · | the date, if any, on and after which the equity warrants and the related equity
security will be separately transferable; |
| · | if applicable, the minimum or maximum number of the equity warrants that may
be exercised at any one time; |
| · | the date on which the right to exercise the equity warrants will commence
and the date on which the right will expire; |
| · | if applicable, a discussion of United States federal income tax, accounting
or other considerations applicable to the equity warrants; |
| · | anti-dilution provisions of the equity warrants, if any; |
| · | redemption or call provisions, if any, applicable to the equity warrants; |
| · | any additional terms of the equity warrants, including terms, procedures and
limitations relating to the exchange and exercise of the equity warrants; and |
Holders of equity warrants will not be entitled,
solely by virtue of being holders, to vote, to consent, to receive dividends, to receive notice as shareholders with respect to any meeting
of shareholders for the election of directors or any other matter, or to exercise any rights whatsoever as a holder of the equity securities
purchasable upon exercise of the equity warrants.
Description
of Depositary Shares
This section describes the general terms of the
depositary shares we may offer and sell by this prospectus. This prospectus and any accompanying prospectus supplement will contain the
material terms and conditions for the depositary shares. The accompanying prospectus supplement may add, update, or change the terms and
conditions of the depositary shares as described in this prospectus.
General
We may, at our option, elect to offer fractional
or multiple shares of preferred stock, rather than single shares of preferred stock (to be set forth in the prospectus supplement relating
to a particular series of preferred stock). In the event we elect to do so, depositary receipts evidencing depositary shares will be issued.
The shares of any class or series of preferred
stock represented by depositary shares will be deposited under a deposit agreement among us, a depositary selected by us, and the holders
of the depositary receipts. The depositary will be a bank or trust company having its principal office in the United States and having
a combined capital and surplus of at least $50 million. Subject to the terms of the deposit agreement, each owner of a depositary share
will be entitled, in proportion to the applicable fraction of a share of preferred stock represented by such depositary share, to all
the rights and preferences of the shares of preferred stock represented by the depositary share, including dividend, voting, redemption
and liquidation rights.
The depositary shares will be evidenced by depositary
receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed to those persons purchasing the fractional
shares of the related class or series of preferred shares in accordance with the terms of the offering described in the related prospectus
supplement.
Description
of Rights
This section describes the general terms of the
rights that we may offer and sell by this prospectus. This prospectus and any accompanying prospectus supplement will contain the material
terms and conditions for each right. The accompanying prospectus supplement may add, update or change the terms and conditions of the
rights as described in this prospectus.
The particular terms of each issue of rights, the
rights agreement relating to the rights and the rights certificates representing rights will be described in the applicable prospectus
supplement, including, as applicable:
| · | the title of the rights; |
| · | the date of determining the stockholders entitled
to the rights distribution; |
| · | the title, aggregate number of shares of common
stock or preferred stock purchasable upon exercise of the rights; |
| · | the aggregate number of rights issued; |
| · | the date, if any, on and after which the rights
will be separately transferable; |
| · | the date on which the right to exercise the rights
will commence and the date on which the right will expire; and |
| · | any other terms of the rights, including terms,
procedures and limitations relating to the distribution, exchange and exercise of the rights. |
Exercise of Rights
Each right will entitle the holder of rights to
purchase for cash the principal amount of shares of common stock or preferred stock at the exercise price provided in the applicable prospectus
supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable
prospectus supplement. After the close of business on the expiration date, all unexercised rights will be void.
Holders may exercise rights as described in the
applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate
trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward
the shares of common stock or preferred stock purchasable upon exercise of the rights. If less than all of the rights issued in any rights
offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters
or dealers or through a combination of such methods, including pursuant to standby underwriting arrangements, as described in the applicable
prospectus supplement.
Description
of Units
This section describes the general terms of the
units we may offer and sell by this prospectus. This prospectus and any accompanying prospectus supplement will contain the material terms
and conditions for the units. The accompanying prospectus supplement may add, update, or change the terms and conditions of the units
as described in this prospectus.
General
We may issue units consisting of one or more other
constituent securities. These units may be issuable as, and for a specified period of time may be transferable only as, a single security,
rather than as the separate constituent securities comprising such units. While the features we have summarized below will generally apply
to any units we may offer under this prospectus, we will describe the particular terms of any units that we may offer in more detail in
the applicable prospectus supplement. The specific terms of any units may differ from the description provided below as a result of negotiations
with third parties in connection with the issuance of those units, as well as for other reasons. Therefore, you should rely solely on
information in the applicable prospectus supplement if that summary is different from the summary in this prospectus.
The particular terms of each issue of units, the
unit agreement relating to the units and the unit certificates representing units will be described in the applicable prospectus supplement,
including, as applicable:
| · | the title of the series of units; |
| · | identification and description of the separate constituent securities comprising
the units; |
| · | the price or prices at which the units will be issued; |
| · | the date, if any, on and after which the constituent securities comprising
the units will be separately transferable; |
| · | a discussion of certain United States federal income tax considerations applicable
to the units; and |
| · | any other terms of the units and their constituent securities. |
Selling
Securityholders
Selling securityholders are persons or entities that, directly or indirectly,
have acquired or will from time to time acquire from us, our securities. If this prospectus is used by selling securityholders for the
resale of any securities registered under this registration statement pursuant to a registration rights agreement between us and such
selling securityholders or otherwise, information about such selling securityholders, their beneficial ownership of our securities and
their relationship with us will be set forth in a prospectus supplement.
Plan
of Distribution
We or selling securityholders
may sell the securities from time to time pursuant to underwritten public offerings, “at-the-market” offerings,
negotiated transactions, block trades or a combination of these methods. We or selling securityholders may sell the securities to or through
one or more underwriters or dealers (acting as principal or agent), through agents, or directly to one or more purchasers. We or selling
securityholders may distribute securities from time to time in one or more transactions:
| · | at a fixed price or prices, which may be changed; |
| · | at market prices prevailing at the time of sale; |
| · | at prices related to such prevailing market prices; or |
A prospectus supplement or supplements (and
any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of the securities,
including, to the extent applicable:
| · | the name or names of the underwriters, dealers or agents, if any; |
| · | the name or names of the selling securityholders, if any; |
| · | the purchase price of the securities or other consideration therefor, and
the proceeds, if any, we will receive from the sale; |
| · | any over-allotment or other options under which underwriters may purchase
additional securities from us or any selling securityholders; |
| · | any agency fees or underwriting discounts and other items constituting agents’
or underwriters’ compensation; |
| · | any public offering price; |
| · | any discounts or concessions allowed or reallowed or paid to dealers; and |
| · | any securities exchange or market on which the securities may be listed. |
Only underwriters named
in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement. Dealers and agents participating
in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities
may be deemed to be underwriting discounts. If such dealers or agents were deemed to be underwriters, they may be subject to statutory
liabilities under the Securities Act.
If underwriters are used
in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions
at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase
the securities will be subject to the conditions set forth in the applicable underwriting agreement. We or selling securityholders may
offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate.
Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement,
other than securities covered by any over-allotment option. If a dealer is used in the sale of securities, we, a selling stockholder,
or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying
prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus supplement the
name of the dealer and the terms of the transaction. Any public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may change from time to time.
We or selling securityholders
may use underwriters, dealers or agents with whom we have a material relationship. We will describe in the prospectus supplement, naming
the underwriter, dealer or agent, the nature of any such relationship. We or selling securityholders may sell securities directly or through
agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe any
commissions payable to the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, the agent will act on
a best-efforts basis for the period of its appointment.
We may provide agents,
underwriters and dealers with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution
with respect to payments that the agents, underwriters or dealers may make with respect to these liabilities. Agents, underwriters and
dealers, or their affiliates, may engage in transactions with, or perform services for, us in the ordinary course of business.
Selling securityholders
may be deemed to be underwriters under the Securities Act in connection with the securities they resell and any profits on the sales may
be deemed to be underwriting discounts and commissions under the Securities Act.
All securities we may
offer, other than common stock, will be new issues of securities with no established trading market. Any underwriters may make a market
in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee
the liquidity of the trading markets for any securities.
Any underwriter may engage
in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). Over-allotment involves sales in excess of the offering size,
which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities,
either through exercise of the over-allotment option or in the open market after the distribution is completed, to cover short positions.
Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are
purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to
be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters that
are qualified market makers may engage in passive market making transactions in the common stock in accordance with Regulation M under
the Exchange Act, during the business day prior to the pricing of an offering, before the commencement of offers or sales of our Class A
Common Stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market
makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security;
if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then
be lowered when certain purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a level
above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
Legal
Matters
Unless otherwise indicated in the applicable prospectus
supplement, certain legal matters in connection with the offering and the validity of the securities offered by this prospectus, and any
supplement thereto, will be passed upon for us by Proskauer Rose LLP, New York, New York.
Experts
The consolidated financial statements of Shake Shack Inc. appearing in Shake Shack Inc.'s Annual Report (Form 10-K) for the year ended December 27, 2023, and the effectiveness of Shake Shack Inc.'s internal control over financial reporting as of December 27, 2023, have
been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in its reports thereon, which conclude,
among other things, that Shake Shack Inc. did not maintain effective internal control over financial reporting as of December 27, 2023
based on Internal Control --Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013
framework), because of the effects of the material weakness described therein, included therein, and incorporated herein by reference.
Such financial statements have been incorporated herein by reference in reliance upon such reports given on the authority of such firm
as experts in accounting and auditing.
Information
Incorporated by Reference
The SEC allows us to “incorporate by reference”
the information we file with it, which means that we can disclose important information to you by referring to those documents. The information
incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically
update and supersede this information. We incorporate by reference the following documents and all documents we file with the SEC pursuant
to Section 13(a), 13(c), 14 or 15(d) pursuant to the Exchange Act on or after the date of this prospectus and prior to the termination
of the offering under this prospectus and any prospectus supplement (other than, in each case, documents or information deemed to have
been furnished and not filed in accordance with SEC rules):
| · | our Current Reports on Form 8-K, filed with
the SEC on January 26, 2024, February 2, 2024, February 15, 2024, February 26, 2024, March 21, 2024, and April 17, 2024; and |
Any statement contained herein or in any document
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this prospectus
to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or replaces such statement. Any such statement so modified or superseded shall not be deemed to constitute
a part of this prospectus, except as so modified or superseded.
We hereby undertake to provide without charge to
each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon written or oral request of any such
person, a copy of any and all of the information that has been incorporated by reference in this prospectus, other than exhibits to such
documents, unless such exhibits have been specifically incorporated by reference thereto. Requests for such copies should be directed
to our Investor Relations department, at the following address:
Shake Shack Inc.
225 Varick Street, Suite 301
New York, NY 10014
Where
You Can Find More Information
This prospectus is part of a registration statement
filed with the SEC under the Securities Act. This prospectus, which constitutes a part of the registration statement, does not contain
all of the information set forth in the registration statement or the exhibits and schedules filed therewith. For further information
about us and the securities offered hereby, we refer you to the registration statement and the exhibits and schedules filed thereto. Statements
contained or incorporated in this prospectus regarding the contents of any contract or any other document that is filed as an exhibit
to the registration statement are not necessarily complete, and each such statement is qualified in all respects by reference to the full
text of such contract or other document filed as an exhibit to the registration statement. We are required to file periodic reports, proxy
statements, and other information with the SEC pursuant to the Exchange Act. Such reports and other information filed by us with the SEC
are available free of charge on our website at investor.shakeshack.com when such reports are made available on the SEC's website. The
SEC also maintains an Internet website that contains reports, proxy statements and other information about registrants, like us, that
file electronically with the SEC. The address of that site is www.sec.gov.
Debt Securities
Preferred Stock
Class A Common Stock
Depositary Shares
Warrants
Rights
Units
Prospectus
June 6, 2024
PROSPECTUS
Shares
of Class A Common Stock
Offered, from time to time, by the Selling Stockholders
This prospectus
relates to the resale from time to time of up to 5,626,015 shares of Class A Common Stock, par value $0.001 per share of Shake
Shack Inc. (the “Company”) by the selling stockholders identified in this prospectus. Out of the 5,626,015 shares of
our Class A Common Stock that our selling stockholders may offer and sell, (i) 3,138,079 shares of our Class A Common Stock
were previously issued to certain of our selling stockholders and (ii) the remaining 2,487,936 shares of Class A Common Stock
will be issued by us from time to time to certain of our stockholders who are also the holders of LLC Interests of SSE Holdings upon the
redemption by such stockholders of an equivalent number of LLC Interests of SSE Holdings (and the surrender and cancellation of an equivalent
number of shares of Class B Common Stock, par value $0.001 per share, of the Company).
We will not receive any proceeds from
the resale of shares of Class A Common Stock from time to time by the selling stockholders, but we have agreed to pay substantially
all of the expenses incidental to the registration, offering and sale of the Class A Common Stock by the selling stockholders, except
that we will not bear any brokers' or underwriters' discounts and commissions, fees and expenses of counsel to underwriters or brokers,
transfer taxes or transfer fees relating to the sale of shares of our Class A Common Stock by the selling stockholders.
Our Class A Common Stock is listed
on the New York Stock Exchange under the symbol "SHAK." We have two classes of common stock: Class A Common Stock and Class B
Common Stock. Each share of Class A Common Stock and Class B Common Stock entitles its holder to one vote on all matters presented
to our stockholders generally. All of our Class B Common Stock is held by the Continuing SSE Equity Owners (as defined herein) on
a one-to-one basis with the number of LLC Interests of SSE Holdings they own. See "Prospectus Summary."
The last reported sale price of our Class A
Common Stock on June 4, 2024 was $91.68 per share.
Investing in our Class A Common
Stock involves certain risks. See "Risk Factors" beginning on page 3 of this
prospectus and "Risk Factors" in our 2023 10-K (as defined herein), which is incorporated by reference herein, as well as in
any other subsequently filed annual, quarterly or current reports filed after the date hereof and incorporated by reference into this
prospectus and any applicable prospectus supplement.
Neither the Securities and Exchange
Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is June 6, 2024
TABLE OF CONTENTS
Page
For investors outside the United States: We have
not and the selling stockholders have not done anything that would permit this offering or possession or distribution of this prospectus
in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who
come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares
of Class A Common Stock and the distribution of this prospectus outside the United States.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, utilizing a "shelf" registration or
continuous offering process. Both this prospectus and any accompanying prospectus supplement include or incorporate by reference important
information about us, our common stock and other information you should know before investing.
You should rely only on the information contained
or incorporated by reference in this prospectus, any accompanying prospectus supplement and any free writing prospectus prepared by or
on behalf of us or to which we have referred you. We have not authorized anyone, including the selling stockholders, to provide you with
different information. If anyone provides you with different or inconsistent information, you should not rely on it. We take no responsibility
for, and can provide no assurance as to the reliability of, any other information that others may give you.
Before purchasing any securities, you should carefully
read both this prospectus, any prospectus supplement and any free writing prospectus, together with the additional information described
under the heading "Information Incorporated by Reference." You should assume that the information contained in this prospectus,
any prospectus supplement or any free writing prospectus is accurate only as of the date on its respective cover, and that any information
incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our
business, financial condition, results of operations and prospects may have changed since those dates.
This prospectus contains summaries of certain provisions
contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the
summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed,
will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the heading "Where You Can Find More Information." This prospectus
and any applicable prospectus supplement or free writing prospectus do not constitute an offer to sell or the solicitation of an offer
to buy any securities other than the registered securities to which they relate. Neither we nor any selling stockholder are making offers
to sell any securities described in this prospectus in any jurisdiction in which an offer or solicitation is not authorized or in which
the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation.
As used in this prospectus, unless the context
otherwise requires:
| ▪ | “we,” “us,” “our,” the “Company,”
“Shake Shack” and other similar references refer to Shake Shack Inc., and, unless otherwise stated, all of
its subsidiaries, including SSE Holdings, LLC, which we refer to as “SSE Holdings,” and all of its subsidiaries.
We are a holding company with no direct operations, in which are conducted through SSE Holdings. We also are the sole managing member
of SSE Holdings. |
| ▪ | “Original SSE Equity Owners” refers to the owners of SSE Holdings prior to our
IPO (as defined below). |
| ▪ | “Continuing SSE Equity Owners” refers to those Original SSE Equity Owners that
continue to own LLC Interests (as defined below) as of the date of this prospectus and who may redeem their remaining LLC Interests
for shares of our Class A Common Stock, including the Meyer Group (as defined below), certain affiliates of LGP (as defined below),
and certain of our executive officers. |
| ▪ | “Former SSE Equity Owners” refers to those (i) Original SSE Equity Owners
who previously redeemed all of their LLC Interests for shares of our Class A Common Stock and (ii) affiliate entities of former
members of SSE Holdings, which, immediately after our IPO, we issued shares of our Class A Common Stock to as merger consideration
upon the acquisition by way of merger of these affiliate entities that were owned by such former members. |
| ▪ | "IPO" refers to the Company's IPO, which closed on February 4, 2015. |
| ▪ | “LLC Interests” refers to the single class of common membership interests of SSE Holdings. |
| ▪ | "selling stockholders" refers to the existing stockholders who may offer or sell
shares of Class A Common Stock pursuant to this prospectus, as identified in "Selling Stockholders." |
| ▪ | “Meyer Group” refers collectively to (i) Daniel Meyer, (ii) the Daniel
H. Meyer Investment Trust (the “Investment Trust”), and (iii) the DHM 2012 Gift Trust U/A/D 10/31/12 (the “Gift
Trust”), of which Mr. Meyer’s spouse is a trustee and beneficiary, which, together with certain other Original
SSE Equity Owners, are parties to the Stockholders Agreement, as amended, as described in “Certain Relationships and Related Party
Transactions, and Director Independence—Stockholders Agreement” in our 2024 Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 25, 2024 (the “2024 Proxy Statement”) incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended December 27, 2023, filed with the SEC on February 29, 2024 (the "2023 10-K"),
each of which is incorporated by reference herein. |
TRADEMARKS
This prospectus and
the documents incorporated by reference herein include our trademarks, trade names and service marks, such as “Shake Shack®,”
“ShackBurger®,” “®,”
“” “Shack-Cago Dog®,” “SmokeShack®,”
“ShackMeister®,” “Shack20®,” “Pooch-ini®”
and “Stand for Something Good®,” which are protected under applicable intellectual property laws and are our
property. This prospectus and the documents incorporated by reference herein also contain trademarks, trade names and service marks of
other companies, which are the property of their respective owners. Solely for convenience, trademarks, trade names and service marks
referred to in this prospectus and the documents incorporated by reference herein may appear without the ®, ™ or
SM symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under
applicable law, our rights or the right of the applicable licensor to these trademarks, trade names and service marks. We do not intend
our use or display of other parties’ trademarks, trade names or service marks to imply, and such use or display should not be construed
to imply, a relationship with, or endorsement or sponsorship of us by, these other parties.
Prospectus
Summary
This summary highlights selected information
contained elsewhere, or incorporated by reference, in this prospectus. This summary does not contain all of the information that you should
consider before deciding to invest in our Class A Common Stock. You carefully should read the entire prospectus, any accompanying
prospectus supplement and any related free writing prospectus, including the risks of investing in our securities discussed under the
heading "Risk Factors" contained herein and in any accompanying prospectus supplement and any related free writing prospectus,
and under a similar heading in other documents that are incorporated by reference into this prospectus. You also should carefully read
the information incorporated by reference into this prospectus, including our financial statements and the exhibits to the registration
statement of which this prospectus is a part.
OVERVIEW OF SHAKE SHACK
Shake
Shack is a modern day "roadside" burger stand serving a classic American menu of premium burgers, chicken sandwiches, hot dogs,
crinkle cut fries, shakes, frozen custard, beer and wine. Originally founded in 2001 by Danny Meyer's Union Square Hospitality Group ("USHG"),
which owns and operates some of New York City's most acclaimed and popular restaurants — such as Union Square Cafe, Gramercy Tavern
and The Modern, to name a few — Shake Shack began as a hot dog cart to support the rejuvenation of New York City's Madison Square
Park through its Conservancy's first art installation, "I Y Taxi."
The cart was an instant success, with lines forming daily throughout the summer months over the next three years. In response, the city's
Department of Parks and Recreation awarded Shake Shack a contract to create a kiosk to help fund the park's future. In 2004, Shake Shack
officially opened. It soon became a gathering place for locals and visitors alike, and a beloved New York City institution, garnering
significant media attention, critical acclaim and a passionately-devoted following. Since its inception, Shake Shack has grown rapidly
— with over 520 locations system-wide, including over 335 in 33 U.S.
States and the District of Columbia, and 185 international locations across London, Hong Kong, Shanghai, Singapore, Mexico City, Istanbul,
Dubai, Tokyo, Seoul and more — and we continue to expand globally bringing the Shake Shack
experience to new guests around the world.
OUR CORPORATE INFORMATION
Shake Shack Inc. was incorporated as a Delaware
corporation on September 23, 2014. Our corporate headquarters are located at 225 Varick Street, Suite 301, New York, New York
10014. Our telephone number is (646) 747-7200. Our principal website address is www.shakeshack.com. The information on any of our
websites is deemed not to be incorporated in this prospectus or to be part of this prospectus.
THE OFFERING
| Class A Common Stock to be offered by the selling stockholders |
|
5,626,015 shares. |
| |
|
|
| Use of Proceeds |
|
We will not receive any proceeds from the sale of the shares of Class A Common Stock covered by this prospectus. |
| |
|
|
| New York Stock Exchange Trading Symbol |
|
“SHAK.” |
The selling stockholders named in this prospectus may offer and sell
up to 5,626,015 shares of our Class A Common Stock. Throughout this prospectus, when we refer to the shares of our Class A Common
Stock being registered on behalf of the selling stockholders, we are referring to shares of Class A Common Stock reported to us as
held by the selling stockholders.
When we refer to the selling stockholders in this prospectus, we are
referring to the entities named in this prospectus as the selling stockholders and, as applicable, any donees, pledgees, transferees or
other successors-in-interest selling shares received after the date of this prospectus from the selling stockholders as a gift, pledge,
partnership distribution or other non-sale related transfer.
Risk
Factors
Investing in our Class A Common Stock involves
a high degree of risk. Before making an investment decision, you should carefully consider the risks and uncertainties described under
the heading “Risk Factors” contained in our most recent Annual Report on Form 10-K and in our most recent quarterly report
on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference
herein, as well as other risk factors described under "Risk Factors" in any prospectus supplement and under a similar heading
in other documents that are incorporated by reference in this prospectus. Our business, financial condition and results of operations
could be materially and adversely affected by any of these risks or uncertainties. The risks and uncertainties described or incorporated
by reference in this prospectus are not the only risks and uncertainties that we face. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also impair our business operations. If any of those risks actually occur, our business,
financial condition and results of operations may be materially and adversely affected. In that case, the trading price of our Class A
Common Stock could decline, and you may lose all or part of your investment. The risks discussed or incorporated by reference in this
prospectus also include forward-looking statements, and our actual results may differ substantially from those discussed in these forward-looking
statements. See “Cautionary Note Regarding Forward-Looking Statements” in this prospectus.
Cautionary
Note Regarding Forward-Looking Statements
This prospectus and the documents incorporated
by reference herein contain forward-looking statements. All statements other than statements of historical facts contained or incorporated
by reference in this prospectus may be forward-looking statements. Statements regarding our future results of operations and financial
position, business strategy, outlook and plans and objectives of management for future operations, including, among others, statements
regarding expected new Shack openings, expected same-Shack sales growth, future capital expenditures and debt service obligations, are
forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “may,” “will,”
“should,” “expects,” “plans,” “anticipates,” “could,” “intends,”
“targets,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,”
“potential” or “continue” or the negative of these terms or other similar expressions.
Forward-looking statements involve known and unknown
risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be materially different
from any future results, performance or achievements expressed or implied by the forward-looking statements. We believe that these factors
include, but are not limited to, the following:
| ▪ | our inability to successfully identify and secure appropriate sites and timely develop and expand our operations; |
| ▪ | our inability to protect our brand and reputation; |
| ▪ | our failure to prevent food safety and food-borne illness incidents; |
| ▪ | shortages or interruptions in the supply or delivery of food products; |
| ▪ | our inability to maintain our international supply chain; |
| ▪ | our dependence on a small number of suppliers and a single distribution company for the majority of our
domestic distribution needs; |
| ▪ | our inability to protect against security breaches of confidential guest information; |
| ▪ | competition from other restaurants; |
| ▪ | changes in consumer tastes and nutritional and dietary trends; |
| ▪ | our inability to manage our growth; |
| ▪ | our inability to open profitable Shacks; |
| ▪ | our failure to generate projected same-Shack sales growth; |
| ▪ | our inability to maintain sufficient levels of cash flow, or access to capital, to meet growth expectations; |
| ▪ | our dependence on long-term non-cancelable leases; |
| ▪ | our failure to meet the operational and financial performance guidance we provide to the public; |
| ▪ | our dependence on key members of our executive management team; |
| ▪ | our inability to identify qualified individuals for our workforce; |
| ▪ | labor relations difficulties; |
| ▪ | our vulnerability to increased food commodity and energy costs; |
| ▪ | our vulnerability to health care costs and labor costs; |
| ▪ | our vulnerability to global financial market conditions; |
| ▪ | our sale of alcoholic beverages; |
| ▪ | our dependence on a limited number of licensees; |
| ▪ | our inability to maintain good relationships with our licensees; |
| ▪ | violations of the U.S. Foreign Corrupt Practices Act and similar worldwide anti-bribery and anti-kickback laws; |
| ▪ | our ability to adequately protect our intellectual property; |
| ▪ | our business model being susceptible to litigation; |
| ▪ | failure to obtain and maintain required licenses and permits to comply with alcoholic beverage or food control regulations; |
| ▪ | our vulnerability to adverse weather conditions in local or regional areas where our Shacks are located; |
| ▪ | our realization of any benefit from the tax receivable agreement entered into with the Continuing SSE Equity Owners and our organizational
structure; and |
| ▪ | the impact of any material weakness in our internal controls over financial reporting identified in connection
with the restatements set forth in our 2023 10-K. |
You should not rely upon forward-looking statements
as predictions of future events. We have based the forward-looking statements contained or incorporated by reference into this prospectus
primarily on current expectations and projections about future events and trends that we believe may affect our business, financial condition,
results of operations and prospects. The outcome of the matters described in these forward-looking statements is subject to risks, uncertainties
and other factors described above and in the section of this prospectus and any accompanying prospectus supplement entitled "Risk
Factors" and under a similar heading in documents incorporated by reference into this prospectus. Moreover, new risks and uncertainties
emerge from time to time, and it is not possible for us to predict all risks and uncertainties that could have an impact on the forward-looking
statements contained or incorporated by reference into this prospectus. We cannot assure you that the results, events and circumstances
reflected in the forward-looking statements will be achieved or occur and actual results, events or circumstances could differ materially
from those described in the forward-looking statements.
The forward-looking statements included or incorporated
by reference in this prospectus speak only as of the date made. Except as required by applicable law, we do not plan to publicly update
or revise any forward-looking statements, whether as a result of any new information, future events or otherwise.
Use Of
Proceeds
We will not receive any proceeds from the sale
of Class A Common Stock from time to time by the selling stockholders of any of the shares of Class A Common Stock offered pursuant
to this prospectus. The selling stockholders will receive all of the net proceeds from any such offer and sale.
Selling
Stockholders
The selling stockholders
named below may, from time to time, offer or sell pursuant to this prospectus up to an aggregate of 5,626,015 shares of Class A
Common Stock. The table below describes, as of May 29, 2024, each selling stockholder’s beneficial ownership of shares of our
Class A Common Stock and shares of our Class B Common Stock (a) according to the information available to us as of the
date of this prospectus and (b) assuming each selling stockholder (i) has redeemed all LLC Interests held by such selling stockholder
and (ii) has sold all of its shares of Class A Common Stock pursuant to this prospectus.
Information
in the table below with respect to beneficial ownership has been furnished by each of the selling stockholders. The selling stockholders
listed in the table below may have sold, transferred, otherwise disposed of or purchased, or may sell, transfer, otherwise dispose of
or purchase, at any time and from time to time, shares of our Class A Common Stock in transactions exempt from the registration requirements
of the Securities Act of 1933, as amended (the “Securities Act”) or in the open market after the date on which they
provided the information set forth in the table below. We do not know which (if any) of the selling stockholders named below actually
will offer to sell shares pursuant to this prospectus, or the number of shares that each of them will offer.
Because the selling stockholders may sell, transfer
or otherwise dispose of all, some or none of the shares of our Class A Common Stock covered by this prospectus, we cannot determine
the number of such shares that will be sold, transferred or otherwise disposed of by the selling stockholders, or the amount or percentage
of shares of our Class A Common Stock that will be held by the selling stockholders upon termination of any particular offering or
sale. See “Plan of Distribution.” When we refer to the selling stockholders in this prospectus, we mean the entities listed
in the table below, as well as their pledgees, donees, assignees, transferees and successors in interest.
All Continuing SSE Equity Owners are entitled to
have their LLC Interests redeemed for Class A Common Stock on a one-for-one basis, or, at the option of Shake Shack, cash equal
to the market value of the applicable number of shares of our Class A Common Stock. At Shake Shack's election, Shake Shack may effect
a direct exchange, rather than a redemption, of such shares of Class A Common Stock or such cash for such LLC Interests. In
connection with our IPO, we issued to each Continuing SSE Equity Owner for nominal consideration one share of Class B Common Stock
for each LLC Interest it owned. As a result, the number of shares of Class B Common Stock listed in the table below equals the
number of LLC Interests each such Continuing SSE Equity Owner owns.
The number of shares beneficially owned by each
stockholder is determined under rules issued by the SEC and includes voting or investment power with respect to securities. Under
these rules, beneficial ownership includes any shares as to which the individual or entity has sole or shared voting power or investment
power. In computing the number of shares beneficially owned by an individual or entity and the percentage ownership of that person, shares
of common stock subject to options, or other rights, including the redemption right described above, held by such person that are currently
exercisable or will become exercisable within 60 days, are considered outstanding, although these shares are not considered outstanding
for purposes of computing the percentage ownership of any other person. Each of the stockholders listed has sole voting and investment
power with respect to the shares beneficially owned by the stockholder unless noted otherwise, subject to community property laws where
applicable.
Any selling stockholder may be deemed to be an
“underwriter” within the meaning of the Securities Act. Based upon the applicable facts and circumstances, including when
and how each selling stockholder's respective shares of Class A Common Stock were acquired, none of the selling stockholders believes
that it should be considered an “underwriter” within the meaning of such term under the Securities Act.
For information regarding material relationships
and transactions between us and the selling stockholders, see the “Certain Relationships and Related Transactions, and Director
Independence” section of our 2023 10-K and any disclosure under a similar heading in the documents incorporated by reference in
this prospectus.
Information concerning the selling stockholders
may change from time to time. Any changes to the information provided below will be set forth in a prospectus supplement if and when necessary.
| | |
LLC
Interests (and an
equivalent amount of
shares of Class B Common
Stock) held prior to the
offering | | |
LLC
Interests to be
exchanged (and an equivalent
amount of shares of Class B
Common Stock to be
surrendered and cancelled) in
the
offering(+)(1) | | |
LLC
Interests (and an
equivalent amount of
shares of Class B Common
Stock) held after the
offering(+) | | |
Shares
of Class A
Common Stock held
prior to the offering (^) | | |
Shares
of Class A Common
Stock that may be sold in the
offering(‡) | | |
Shares
of Class A
Common Stock held after
the offering(!) | |
| Name
and address of beneficial owner(2) | |
(#) | | |
(%
of LLC
Interests
outstanding) | | |
(#) | | |
(%
of Class A
Common Stock
outstanding)(3) | | |
(#) | | |
(%
of Class A
Common Stock
outstanding)(3) | | |
(#) | | |
(%)(4) | | |
(#) | | |
(%)(3) | | |
(#) | | |
(%)(3) | |
| ALWM
Revocable Trust u/a/d 1/7/2022 | |
| 1,538 | | |
| * | | |
| 1,538 | | |
| * | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 1,538 | | |
| * | | |
| — | | |
| — | |
| Ashley
Campbell | |
| 15,235 | | |
| * | | |
| 15,235 | | |
| * | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 15,235 | | |
| * | | |
| — | | |
| — | |
| Beth
Stephens | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 4,688 | | |
| * | | |
| 4,688 | | |
| * | | |
| — | | |
| — | |
| CBM
Qualified Minor’s Trust Dated 11/23/05 | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 1,824 | | |
| * | | |
| 1,824 | | |
| * | | |
| — | | |
| — | |
| Daniel
Meyer and Affiliates: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Daniel
H. Meyer Gift Trust U/A/D 10/31/12(5) | |
| 1,861,057 | | |
| 4.4 | % | |
| 1,861,057 | | |
| 4.7 | % | |
| — | | |
| — | | |
| 1,305,306 | | |
| 3.3 | % | |
| 3,166,363 | | |
| 7.9 | % | |
| — | | |
| — | |
| Daniel
H. Meyer Investment Trust Dated 5/15/92(6) | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 480,436 | | |
| 1.2 | % | |
| 480,436 | | |
| 1.2 | % | |
| — | | |
| — | |
| David
A. Swinghamer and Affiliate: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| David
A. Swinghamer | |
| 107,167 | | |
| * | | |
| 107,167 | | |
| * | | |
| — | | |
| — | | |
| 355,000 | | |
| * | | |
| 462,167 | | |
| 1.2 | % | |
| — | | |
| — | |
| David
A. Swinghamer Grat | |
| 20,000 | | |
| * | | |
| 20,000 | | |
| * | | |
| — | | |
| — | | |
| 30,000 | | |
| * | | |
| 50,000 | | |
| * | | |
| — | | |
| — | |
| Erin
Moran | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 41,343 | | |
| * | | |
| 41,343 | | |
| * | | |
| — | | |
| — | |
| GVM
Qualified Minor’s Trust Dated 11/23/05 | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 1,097 | | |
| * | | |
| 1,097 | | |
| * | | |
| — | | |
| — | |
| HLM
Qualified Minor’s Trust Dated 11/23/05 | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 666 | | |
| * | | |
| 666 | | |
| * | | |
| — | | |
| — | |
| ILWM
Qualified Minor’s Trust Dated 12/22/05 | |
| 1,834 | | |
| * | | |
| 1,834 | | |
| * | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 1,834 | | |
| * | | |
| — | | |
| — | |
| Jamie
Welch & Fiona Angelini | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 78,092 | | |
| * | | |
| 78,092 | | |
| * | | |
| — | | |
| — | |
| Jean
Polsky Investment Trust Dated 3/21/97 | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 2,644 | | |
| * | | |
| 2,644 | | |
| * | | |
| — | | |
| — | |
| Joan
W. Harris Revocable Trust Dated 4/1/93 | |
| 9,751 | | |
| * | | |
| 9,751 | | |
| * | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 9,751 | | |
| * | | |
| — | | |
| — | |
| Karen
Kochevar | |
| 15,000 | | |
| * | | |
| 15,000 | | |
| * | | |
| — | | |
| — | | |
| 2,500 | | |
| * | | |
| 17,500 | | |
| * | | |
| — | | |
| — | |
| Laura
Sloate | |
| 100,000 | | |
| * | | |
| 100,000 | | |
| * | | |
| — | | |
| — | | |
| 180,074 | | |
| * | | |
| 280,074 | | |
| * | | |
| — | | |
| — | |
| Orrin
Devinsky | |
| 22,744 | | |
| * | | |
| 22,744 | | |
| * | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 22,744 | | |
| * | | |
| — | | |
| — | |
| PEM
Qualified Minor’s Trust Dated 11/23/05 | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 1,694 | | |
| * | | |
| 1,694 | | |
| * | | |
| — | | |
| — | |
| Randy
Garutti and Affiliate: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Randy
Garutti | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 330,190 | | |
| * | | |
| 330,190 | | |
| * | | |
| — | | |
| — | |
| | |
LLC
Interests (and an
equivalent amount of
shares of Class B
Common Stock) held
prior to the offering | | |
LLC
Interests to be
exchanged (and an
equivalent amount of
shares of Class B Common
Stock to be surrendered
and cancelled) in the
offering(+)(1) | | |
LLC
Interests (and an
equivalent amount of
shares of Class B
Common Stock) held
after the offering(+) | | |
Shares
of Class A
Common Stock
held prior to the
offering (^) | | |
Shares
of Class A
Common Stock
that may be sold
in the offering(‡) | | |
Shares
of Class A Common Stock held after the offering(!) | |
| Name
and address of beneficial owner(2) | |
(#) | | |
(%
of LLC Interests outstanding) | | |
(#) | | |
(%
of Class A Common Stock outstanding)(3) | | |
(#) | | |
(%
of Class A Common Stock outstanding)(3) | | |
(#) | | |
(%)(4) | | |
(#) | | |
(%)(3) | | |
(#) | | |
(%)(3) | |
| The
Randall J. Garutti 2014 GST Trust(7) | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 55,972 | | |
| * | | |
| 55,972 | | |
| * | | |
| — | | |
| — | |
| Nancy
Meyer Revocable Trust Dated 4/21/87 | |
| 14,900 | | |
| * | | |
| 14,900 | | |
| * | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 14,900 | | |
| * | | |
| — | | |
| — | |
| Thomas
W. Meyer Trust Established 12/27/94 | |
| 8,576 | | |
| * | | |
| 8,576 | | |
| * | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 8,576 | | |
| * | | |
| — | | |
| — | |
| Richard
Coraine and Affiliate: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Richard
Coraine | |
| 100,924 | | |
| * | | |
| 100,924 | | |
| * | | |
| — | | |
| — | | |
| 92,000 | | |
| * | | |
| 192,924 | | |
| * | | |
| — | | |
| — | |
| Richard
D. Coraine 2012 Family Trust(8) | |
| 169,401 | | |
| * | | |
| 169,401 | | |
| * | | |
| — | | |
| — | | |
| 142,000 | | |
| * | | |
| 311,401 | | |
| * | | |
| — | | |
| — | |
| Robert
Vivian(9) | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 32,553 | | |
| * | | |
| 32,553 | | |
| * | | |
| — | | |
| — | |
| Roxanne
H. Frank Revocable Trust Dated 9/30/75 | |
| 31,778 | | |
| * | | |
| 31,778 | | |
| * | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 31,778 | | |
| * | | |
| — | | |
| — | |
| Walter
Robb | |
| 8,031 | | |
| * | | |
| 8,031 | | |
| * | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 8,031 | | |
| * | | |
| — | | |
| — | |
| * | Represents beneficial ownership of less than 1%. |
| (+) | Continuing SSE Equity Owners will redeem (or exchange), on a one-for-one basis, their LLC Interests for
newly-issued shares of Class A Common Stock, to the extent they offer or sell shares of Class A Common Stock pursuant to this
prospectus (and an equivalent number of shares of Class B Common Stock held by such selling stockholders will be surrendered and
cancelled in connection with each such LLC Interest exchange). See “Certain Relationships and Related Transactions, and Director
Independence—SSE Holdings LLC Agreement—LLC Interest Redemption Right” in our 2024 Proxy Statement. |
| (^) | Comprises previously issued shares of Class A Common Stock and does not include any shares of Class A
Common Stock that the selling stockholder currently has the right to acquire or will have the right to acquire. |
| (‡) | Comprises (i) shares of Class A Common Stock to be offered or sold by the Continuing SSE Equity
Owners after giving effect to the redemption (or exchange) of their respective LLC Interests, and (ii) shares of Class A Common
Stock previously issued to the Former SSE Equity Owners. None of the shares of Class A Common Stock that the selling stockholder
currently has the right to acquire or will have the right to acquire within 60 days (other than the shares after giving effect to the
redemption or exchange of LLC Interests) will be sold in the offering. |
| (!) | Assumes the sale by the selling stockholders of all shares of Class A Common Stock registered pursuant
to this prospectus. |
| (1) | Assumes all LLC Interests are redeemed (or exchanged) (and all shares of Class B Common Stock are
surrendered and cancelled) for shares of Class A Common Stock. |
| (2) | Unless otherwise noted, the address for each selling stockholder listed on the table is c/o Shake Shack
Inc., 225 Varick Street, Suite 301, New York, New York 10014. |
| (3) | Percentage of ownership calculated after adding the total number of shares of Class A Common Stock
issued upon exchange of all outstanding LLC Interests held by the Continuing SSE Equity Owners to the existing number of shares of Class A
Common Stock outstanding as of May 29, 2024. |
| (4) | Percentage of ownership calculated against the total number of shares of Class A Common Stock outstanding
as of May 29, 2024. |
| (5) | Mr. Meyer’s spouse is a trustee and beneficiary of the DHM 2012 Gift Trust U/A/D 10/31/12.
Mr. Meyer also holds (i) 1,610 restricted stock units (“RSUs”) that will vest within 60 days and will settle
in shares of Class A Common Stock when vested, (ii) and vested stock options exercisable for 10,254 shares of Class A Common
Stock that are not included in the table. |
| (6) | Mr. Meyer is the grantor, trustee and beneficiary of the Daniel H. Meyer Investment Trust dated 5/15/92. |
| (7) | Mr. Garutti’s spouse is a trustee and beneficiary of the Randall J. Garutti 2014 GST Trust. |
| (8) | Mr. Coraine’s spouse is a trustee and beneficiary of the Richard D. Coraine 2012 Family Trust. |
| (9) | Mr. Vivian also holds 934 RSUs that will settle in shares of Class A Common Stock that will
vest within 60 days that are not included in the table. |
Redemptions
or Exchanges of Llc Interests for Class A Common Stock
Out of the 5,626,015 shares of Class A Common
Stock that may be sold hereby, an aggregate of 2,487,936 shares of Class A Common Stock are issuable by us upon the redemptions by
the Continuing SSE Equity Owners of an equivalent number of currently outstanding LLC Interests (and the surrender and cancellation of
an equivalent number of shares of Class B Common Stock).
The Continuing SSE Equity Owners, from time to
time, pursuant to the SSE Holdings LLC Agreement, may require SSE Holdings to redeem all or a portion of their LLC Interests for newly-issued
shares of Class A Common Stock, which Shake Shack would contribute to SSE Holdings on a one-for-one basis. Shake Shack may, at its
election, instead settle any redemption request by making a cash payment in accordance with the terms of the LLC Agreement. Share settlement
will be the default payment unless and until a majority of the members of our Board of Directors who do not hold any LLC Interests elect
cash settlement. In the event of cash settlement, Shake Shack would issue new shares of Class A Common Stock and use the proceeds
from the sale of these newly-issued shares of Class A Common Stock to fund the cash settlement, which, in effect, limits the amount
of the cash payment to the redeeming member. If we decide to make a cash payment, a Continuing SSE Equity Owner has the option to rescind
its redemption request within a specified time period.
Each of the currently outstanding LLC Interests
described above is paired with one share of our Class B Common Stock that will be surrendered and cancelled in connection with the
redemption of such LLC Interests and the issuance of an equivalent number of shares of Class A Common Stock.
Shake Shack may, at its election, effect direct
exchanges of LLC Interests with the Continuing SSE Equity Owners, rather than a redemption of LLC Interests by SSE Holdings, for either
shares of Class A Common Stock or a cash payment.
When Continuing SSE Equity Owners redeem, or exchange, LLC Interests
for shares of Class A Common Stock, Shake Shack receives an equivalent amount of LLC Interests, increasing its total ownership interest
in SSE Holdings.
Plan
of Distribution
The selling stockholders may sell all or a portion
of the shares of Class A Common Stock described in this prospectus and any accompanying prospectus supplement. The selling stockholders,
including their donees, pledgees, transferees or other successors-in-interest selling shares of common stock received after the date of
this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other non-sale related transfer, may, from time
to time, sell, transfer or otherwise dispose of any or all of their shares of common stock or interests in shares of common stock on any
stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositions may be at fixed
prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined
at the time of sale, or at negotiated prices. To the extent any of the selling stockholders gift, pledge, grant a security interest in,
or otherwise transfer the shares offered hereby, such transferees may offer and sell the shares from time to time under this prospectus,
provided that this prospectus has been amended under Rule 424(b) or other applicable provision of the Securities Act to include
the name of such transferee in the list of selling stockholders under this prospectus if and when necessary or required.
The selling stockholders may use any one or more
of the following methods when disposing of shares or interests therein:
| · | any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; |
| · | the over-the-counter market; |
| · | transactions otherwise than on these exchanges or systems or in the over-the-counter market; |
| · | the writing of options, whether such options are listed on an options exchange or otherwise; |
| · | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| · | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and
resell a portion of the block as principal to facilitate the transaction; |
| · | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| · | an exchange distribution in accordance with the rules of the applicable exchange; |
| · | privately negotiated transactions; |
| · | transactions in which broker-dealers may agree with the selling stockholders to sell a specified number
of such shares at a stipulated price per share; |
| · | through one or more underwritten offerings on a firm commitment or best efforts basis; |
| · | a combination of any such methods of sale; and |
| · | any other method permitted pursuant to applicable law. |
Some of the shares of Class A Common Stock
covered by this prospectus may be sold by selling stockholders in private transactions or under Rule 144 under the Securities Act
rather than pursuant to this prospectus.
If the selling stockholders use an underwriter
or underwriters for any offering, we will name them, and set forth the terms of the offering, in a prospectus supplement pertaining to
such offering and, except to the extent otherwise set forth in such prospectus supplement, the selling stockholders will agree in an underwriting
agreement to sell to the underwriter(s), and the underwriter(s) will agree to purchase from the selling stockholder, the number of
shares of Class A Common Stock set forth in such prospectus supplement. Any such underwriter(s) may offer the shares of Class A
Common Stock from time to time for sale in one or more transactions on the New York Stock Exchange, in the over-the-counter market, through
negotiated transactions or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or
at negotiated prices. The underwriter(s) may also propose initially to offer the shares of Class A Common Stock to the public
at a fixed public offering price set forth on the cover page of the applicable prospectus supplement. Except as otherwise set forth
in a prospectus supplement, any underwritten offering pursuant to this prospectus will be underwritten by any one or more financial institutions.
If the selling stockholders effect such transactions
by selling shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions
in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares for whom
they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters,
broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of shares
or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales
of the shares in the course of hedging in positions they assume. The selling stockholders may also sell shares short and deliver shares
covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling
stockholders may also loan or pledge shares to broker-dealers that in turn may sell such shares.
The selling stockholders may pledge or grant a
security interest in some or all of the shares of Class A Common Stock owned by them and, if they default in the performance of their
secured obligations, the pledgees or secured parties may offer and sell the shares of Class A Common Stock from time to time pursuant
to this prospectus or any prospectus supplement under Rule 424(b)(3) or other applicable provision under the Securities Act,
amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of Class A Common Stock in other
circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for
purposes of this prospectus.
The selling stockholders and any broker-dealer
participating in the distribution of the shares of Class A Common Stock may be deemed to be “underwriters” within the
meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed
to be underwriting commissions or discounts under the Securities Act. Any such broker-dealer will be named as an underwriter in a prospectus
supplement or post-effective amendment to the registration statement, of which this prospectus is a part, and any discounts and commissions
to be paid to any such broker-dealer will be disclosed therein. At the time a particular offering of the shares of Class A Common
Stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of Class A
Common Stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts,
commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed
or reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares
of Class A Common Stock may be sold in such states only through registered or licensed brokers or dealers.
There can be no assurance that any selling stockholders
will sell any or all of the shares of Class A Common Stock covered by this prospectus.
The selling stockholders and any other person participating
in such distribution will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including,
without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of Class A
Common Stock by the selling stockholders and any other participating person. Regulation M may also restrict the ability of any person
engaged in the distribution of the shares of Class A Common Stock to engage in market-making activities with respect to the shares
of Class A Common Stock. All of the foregoing may affect the marketability of the shares of Class A Common Stock and the ability
of any person or entity to engage in market-making activities with respect to the shares of Class A Common Stock.
We will not receive any cash proceeds from our
issuance of shares of Class A Common Stock to the selling stockholders or the sale by the selling stockholders of our shares of Class A
Common Stock pursuant to this prospectus. Each selling stockholder will bear the cost of any underwriting discounts and selling commissions
related to their respective offering and sale of shares of Class A Common Stock pursuant to this prospectus. We may be required to
indemnify the selling stockholders against liabilities, including some liabilities under the Securities Act, in accordance with the Registration
Rights Agreement, or the selling stockholders will be entitled to contribution. We, our affiliates and our respective directors, officers,
employees, agents and control persons may be indemnified by the selling stockholders against liabilities that may arise from any written
information furnished to us by the selling stockholder specifically for use in this prospectus, in accordance with the Registration Rights
Agreement, or we or they may be entitled to contribution.
Legal
Matters
The validity of the shares of Class A Common
Stock offered by this prospectus have been passed upon for us by Proskauer Rose LLP, New York, New York.
Experts
The consolidated financial statements of Shake Shack Inc. appearing in Shake Shack Inc.'s Annual Report (Form 10-K) for the year ended December 27, 2023, and the effectiveness of Shake Shack Inc.'s internal control over financial reporting as of December 27, 2023, have
been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in its reports thereon, which conclude,
among other things, that Shake Shack Inc. did not maintain effective internal control over financial reporting as of December 27, 2023
based on Internal Control --Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013
framework), because of the effects of the material weakness described therein, included therein, and incorporated herein by reference.
Such financial statements have been incorporated herein by reference in reliance upon such reports given on the authority of such firm
as experts in accounting and auditing.
Information
Incorporated by Reference
The SEC allows us to “incorporate by reference”
the information we file with it, which means that we can disclose important information to you by referring to those documents. The information
incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically
update and supersede this information. We incorporate by reference the following documents and all documents we file with the SEC pursuant
to Section 13(a), 13(c), 14 or 15(d) pursuant to the Exchange Act on or after the date of this prospectus and prior to the termination
of the offering under this prospectus any prospectus supplement (other than, in each case, documents or information deemed to have been
furnished and not filed in accordance with SEC rules):
| · | our Current Reports on Form 8-K, filed with
the SEC on January 26, 2024, February 2, 2024, February 15, 2024, February 26, 2024, March 21, 2024, and April 17, 2024; and |
Any statement contained herein or in any document
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this prospectus
to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or replaces such statement. Any such statement so modified or superseded shall not be deemed to constitute
a part of this prospectus, except as so modified or superseded.
We hereby undertake to provide without charge to
each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon written or oral request of any such
person, a copy of any and all of the information that has been incorporated by reference in this prospectus, other than exhibits to such
documents, unless such exhibits have been specifically incorporated by reference thereto. Requests for such copies should be directed
to our Investor Relations department, at the following address:
Shake Shack Inc.
225 Varick Street, Suite 301
New York, NY 10014
Where
You Can Find More Information
This prospectus is part of a registration statement
filed with the SEC under the Securities Act. This prospectus, which constitutes a part of the registration statement, does not contain
all of the information set forth in the registration statement or the exhibits and schedules filed therewith. For further information
about us and the securities offered hereby, we refer you to the registration statement and the exhibits and schedules filed thereto. Statements
contained or incorporated in this prospectus regarding the contents of any contract or any other document that is filed as an exhibit
to the registration statement are not necessarily complete, and each such statement is qualified in all respects by reference to the full
text of such contract or other document filed as an exhibit to the registration statement. We are required to file periodic reports, proxy
statements, and other information with the SEC pursuant to the Exchange Act. Such reports and other information filed by us with the SEC
are available free of charge on our website at investor.shakeshack.com when such reports are made available on the SEC's website. The
public may read and copy any materials filed by us with the SEC at the SEC's Public Reference Room at 100 F Street, N.E., Room 1580,
Washington, D.C. 20549. You may obtain information on the operation of the public reference rooms by calling the SEC at 1-800-SEC-0330.
The SEC also maintains an Internet website that contains reports, proxy statements and other information about registrants, like us, that
file electronically with the SEC. The address of that site is www.sec.gov.
5,626,015 Shares
of Class A Common Stock
Offered, from time to time, by the Selling Stockholders
Prospectus
June 6, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table indicates the expenses to be
incurred in connection with the offer and sale of the securities described in this registration statement, other than any underwriting
discounts and commissions, all of which will be paid by us. All amounts are estimated except the SEC registration fee.
| | |
Amount | |
| SEC registration fee | |
| (1 | ) |
| Legal fees and expenses | |
| (2 | ) |
| Accountants' fees and expenses | |
| (2 | ) |
| Trustees’ fees and expenses | |
| (2 | ) |
| Printing and engraving expenses | |
| (2 | ) |
| Blue sky fees and expenses | |
| (2 | ) |
| Miscellaneous | |
| (2 | ) |
| Total expenses (3) | |
$ | (2 | ) |
(1) We are registering an indeterminate amount of securities under
this registration statement, and. in accordance with Rules 456(b) and 457(r), we are deferring payment of the registration fee.
The secondary offering of 5,626,015 shares of Class A Common Stock by the selling stockholders was previously registered under a
prior registration statement and in accordance with Rule 415(a)(6) under the Securities Act, no additional registration fee
with respect to such shares is due in connection with the filing of this registration statement.
(2) These fees are calculated based on the securities offered and
the number of issuances and accordingly cannot be estimated at this time. An estimate of the aggregate amount of these expenses will be
reflected in the applicable prospectus supplement.
(3) Does not include any fees
or expenses in connection with any subsequent underwritten offering and any supplements prepared in connection therewith.
Item 14. Indemnification of Directors and Officers.
Section 102 of the General Corporation Law
of the State of Delaware ("DGCL") permits a corporation to eliminate the personal liability of directors of a corporation
to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached
his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment
of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our amended
and restated certificate of incorporation provides that no director of the Registrant shall be personally liable to it or its stockholders
for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except
to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.
Section 145 of the DGCL provides that a corporation
has the power to indemnify a director, officer, employee, or agent of the corporation, or a person serving at the request of the corporation
for another corporation, partnership, joint venture, trust or other enterprise in related capacities against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with an action, suit
or proceeding to which he was or is a party or is threatened to be made a party to any threatened, ending or completed action, suit or
proceeding by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was
unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect
to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all
of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Our amended and restated certificate of incorporation
and bylaws provide indemnification for our directors and officers to the fullest extent permitted by the DGCL. We will indemnify each
person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other
than an action by or in the right of us) by reason of the fact that he or she is or was, or has agreed to become, a director or officer,
or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee of, or in a similar
capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an “Indemnitee”),
or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and
any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to,
our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct
was unlawful. Our amended and restated certificate of incorporation and bylaws provide that we will indemnify any Indemnitee who was or
is a party to an action or suit by or in the right of us to procure a judgment in our favor by reason of the fact that the Indemnitee
is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at our request as a director,
officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’
fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action,
suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, our best interests, except that no indemnification shall be made with respect to any claim, issue or matter as
to which such person shall have been adjudged to be liable to us, unless a court determines that, despite such adjudication but in view
of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that
any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by us against all expenses (including attorneys’
fees) actually and reasonably incurred in connection therewith. Expenses must be advanced to an Indemnitee under certain circumstances.
We have entered into separate indemnification agreements
with each of our directors and certain officers. Each indemnification agreement provides, among other things, for indemnification to the
fullest extent permitted by law and our amended and restated certificate of incorporation and bylaws against any and all expenses, judgments,
fines, penalties and amounts paid in settlement of any claim. The indemnification agreements provide for the advancement or payment of
all expenses to the Indemnitee and for the reimbursement to us if it is found that such Indemnitee is not entitled to such indemnification
under applicable law and our amended and restated certificate of incorporation and bylaws.
We maintain a general liability insurance policy that covers certain
liabilities of directors and officers of our corporation arising out of claims based on acts or omissions in their capacities as directors
or officers.
The Registration Rights Agreement between us and the selling stockholders
provides for cross-indemnification in connection with registration of our Class A Common Stock on behalf of such selling stockholders.
Any underwriting agreements that we may enter into
may provide that the underwriters are obligated, under certain circumstances, to indemnify our directors, officers and controlling persons
against certain liabilities, including liabilities under the Securities Act.
Item 16. Exhibits and Financial Statement Schedules.
Exhibits Index
| |
|
|
|
|
|
Incorporated by Reference |
|
|
Exhibit
Number |
|
|
|
Exhibit Description |
|
Form |
|
Exhibit |
|
Filing Date |
|
Filed
Herewith |
| 1.1 |
|
* |
|
Form of Underwriting Agreement |
|
|
|
|
|
|
|
|
| 4.1 |
|
|
|
Amended and Restated Certificate of Incorporation of Shake Shack Inc., effective February 4, 2015 |
|
8-K |
|
3.1 |
|
2/10/2015 |
|
|
| 4.2 |
|
|
|
Second Amended and Restated Bylaws of Shake Shack Inc., dated October 1, 2019. |
|
8-K |
|
3.1 |
|
10/4/2019 |
|
|
| 4.3 |
|
|
|
Form of Class A Common Stock Certificate |
|
S-1/A |
|
4.1 |
|
1/28/2015 |
|
|
| 4.4 |
|
|
|
Form of Indenture |
|
|
|
|
|
|
|
# |
| 4.5 |
|
* |
|
Form of Note |
|
|
|
|
|
|
|
|
| 4.6 |
|
* |
|
Specimen of certificate representing preferred stock, par value $.001 per share |
|
|
|
|
|
|
|
|
| 4.7 |
|
* |
|
Form of Warrant Agreement |
|
|
|
|
|
|
|
|
| 4.8 |
|
* |
|
Form of Warrant Certificate (to be included in Exhibit 4.7) |
|
|
|
|
|
|
|
|
| 4.9 |
|
* |
|
Form of Deposit Agreement |
|
|
|
|
|
|
|
|
| 4.10 |
|
* |
|
Form of Depositary Receipt (to be included in Exhibit 4.9) |
|
|
|
|
|
|
|
|
| 4.11 |
|
* |
|
Form of Rights Agreement |
|
|
|
|
|
|
|
|
| 4.12 |
|
* |
|
Form of Rights Certificate (to be included in Exhibit 4.11) |
|
|
|
|
|
|
|
|
| 4.13 |
|
* |
|
Form of Unit Agreement |
|
|
|
|
|
|
|
|
| 4.14 |
|
* |
|
Form of Unit Certificate (to be included in Exhibit 4.13) |
|
|
|
|
|
|
|
|
| 4.15 |
|
|
|
Third Amended and Restated Limited Liability Company Agreement of SSE Holdings, LLC, dated February 4, 2015 by and among SSE Holdings, LLC and its Members |
|
8-K |
|
10.3 |
|
2/10/2015 |
|
|
| 4.16 |
|
|
|
Amendment No. 1 to Third Amended and Restated Limited Liability Company Agreement of SSE Holdings, LLC, dated March 7, 2016, but effective as of February 5, 2015 |
|
POS AM |
|
10.1.1 |
|
3/10/2016 |
|
|
| 4.17 |
|
|
|
Amendment No. 2 to Third Amended and Restated Limited Liability Company Agreement of SSE Holdings, LLC, dated February 6, 2017 |
|
10-K |
|
10.1.2 |
|
3/13/2017 |
|
|
| 4.18 |
|
|
|
Amendment No. 3 to Third Amended and Restated Limited Liability Company Agreement of SSE Holdings, LLC, dated March 31, 2020 |
|
10-Q |
|
10.1 |
|
7/31/2020 |
|
|
| 4.18 |
|
|
|
Registration Rights Agreement, dated February 4, 2015, by and among Shake Shack Inc. and each other person identified on the schedule of investors attached thereto |
|
8-K |
|
10.2 |
|
2/10/2015 |
|
|
| 4.19 |
|
|
|
Amendment No. 1 to Registration Rights Agreement, dated and effective as of October 8, 2015, by and among Shake Shack Inc., the Continuing SSE Equity Owners and affiliates of the Former SSE Equity Owners |
|
10-Q |
|
10.2 |
|
11/6/2015 |
|
|
| 5.1 |
|
|
|
Opinion of Proskauer Rose LLP |
|
|
|
|
|
|
|
# |
| |
|
|
|
|
|
Incorporated by Reference |
|
|
Exhibit
Number |
|
|
|
Exhibit Description |
|
Form |
|
Exhibit |
|
Filing Date |
|
Filed
Herewith |
| * | To be filed by amendment or as an exhibit to a current report on Form 8-K and incorporated herein
by reference, if applicable. |
| ** | To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture
Act of 1939, as amended, and the applicable rules thereunder. |
Item 17. Undertakings.
The undersigned hereby undertakes:
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (A) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| (B) | To reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (C) | To include any material information with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such information in the registration statement. |
Provided, however, that the undertakings set forth
in paragraphs (A), (B) and (C) above do not apply if the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 (the “Exchange Act”) that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part
of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of
a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part
of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made
in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to such effective date. |
| (5) | That, for the purpose of determining the liability of the registrant under the Act to any purchaser in
the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of the following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell such securities to such purchaser |
| i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required
to be filed pursuant to Rule 424; |
| ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant
or used or referred to by the undersigned registrant |
| iii) | The portion of any other free writing prospectus relating to the offering contained material information
about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (6) | That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (7) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit, or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. |
| (8) | To file an application for the purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities
and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act. |
| (9) | To supplement the prospectus, after the expiration of the subscription period, to set forth the results
of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities
to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is
to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed
to set forth the terms of such offering. |
SIGNATURES
Pursuant to the requirements of the Securities
Act, the registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of New York, on this 6th day of June, 2024.
| |
Shake
Shack Inc. |
| |
|
| |
By: |
/s/
Robert Lynch |
| |
|
Robert Lynch |
| |
|
Chief Executive Officer
and Director |
POWER OF ATTORNEY
We, the undersigned officers and directors of Shake Shack Inc.
hereby severally constitute and appoint Robert Lynch and Katherine Fogerty, our true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution for him or her and in his or her name, place and stead, and in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this registration statement (or any other registration statement for the
same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the
same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or her or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities held on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Robert Lynch |
|
Chief Executive Officer and Director |
|
|
| Robert Lynch |
|
(Principal Executive Officer) |
|
June 6, 2024 |
| |
|
|
|
|
| /s/ Katherine I. Fogerty |
|
Chief Financial Officer |
|
June 6, 2024 |
| Katherine I. Fogerty |
|
(Principal Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Daniel Meyer |
|
Chairman of the Board of Directors |
|
June 6, 2024 |
| Daniel Meyer |
|
|
|
|
| |
|
|
|
|
| /s/ Sumaiya Balbale |
|
Director |
|
June 6, 2024 |
| Sumaiya Balbale |
|
|
|
|
| |
|
|
|
|
| /s/ Charles J. Chapman III |
|
Director |
|
June 6, 2024 |
| Charles J. Chapman III |
|
|
|
|
| |
|
|
|
|
| /s/ Anna Fieler |
|
Director |
|
June 6, 2024 |
| Anna Fieler |
|
|
|
|
| |
|
|
|
|
| /s/ Jeff Flug |
|
Director |
|
June 6, 2024 |
| Jeff Flug |
|
|
|
|
| |
|
|
|
|
| /s/ Lori George |
|
Director |
|
June 6, 2024 |
| Lori George |
|
|
|
|
| |
|
|
|
|
| /s/ Jeffrey D. Lawrence |
|
Director |
|
June 6, 2024 |
| Jeffrey D. Lawrence |
|
|
|
|
| |
|
|
|
|
| /s/ Jenna Lyons |
|
Director |
|
June 6, 2024 |
| Jenna Lyons |
|
|
|
|
| |
|
|
|
|
| s/ Joshua Silverman |
|
Director |
|
June 6, 2024 |
| Joshua Silverman |
|
|
|
|
| |
|
|
|
|
| /s/ Jonathan D. Sokoloff |
|
Director |
|
June 6, 2024 |
| Jonathan D. Sokoloff |
|
|
|
|
| |
|
|
|
|
| /s/ Robert Vivian |
|
Director |
|
June 6, 2024 |
| Robert Vivian |
|
|
|
|
| |
|
|
|
|
| /s/ Tristan Walker |
|
Director |
|
June 6, 2024 |
| Tristan Walker |
|
|
|
|
Exhibit 4.4
SHAKE SHACK INC.,
as Issuer,
and
__________________________,
as Trustee
INDENTURE
Dated as of
CROSS-REFERENCE SHEET1
Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture dated as of [●]
| Trust Indenture Act Section |
|
Indenture
Section |
| § 310(a) |
|
10.04(a), 15.02 |
| § 310(b) |
|
10.01(f), 10.04(b), 10.05(1), 15.02 |
| § 310(b)(i) |
|
10.01(f), 10.04(b), 15.02 |
| § 311(a) |
|
10.01(f), 10.11, 15.02 |
| § 311(b) |
|
10.01(f), 10.11, 15.02 |
| § 312 |
|
13.02(d), 15.02 |
| § 312(b) |
|
10.10, 13.02(d), 15.02 |
| § 312(c) |
|
10.10, 13.02(d), 15.02 |
| § 313 |
|
9.01(a), 15.02 |
| § 313(a) |
|
9.01(a), 15.02 |
| § 313(b) |
|
9.01(a), 15.02 |
| § 314 |
|
15.02 |
| § 315(e) |
|
10.05, 15.02 |
| § 316 |
|
15.02 |
| § 317 |
|
15.02 |
| § 318 |
|
15.02 |
1 This cross-reference sheet shall not, for any purpose,
be deemed to be a part of this Indenture.
TABLE OF CONTENTS2
| Article I |
| DEFINITIONS |
| |
| Section 1.01 |
Definitions |
2 |
| |
|
|
| Article II |
| FORMS OF SECURITIES |
| |
| Section 2.01 |
Terms of the Securities |
10 |
| Section 2.02 |
Form of Trustee’s Certificate of Authentication |
10 |
| Section 2.03 |
Form of Trustee’s Certificate of Authentication by an Authenticating Agent |
11 |
| |
|
|
| Article III |
| THE DEBT SECURITIES |
| |
| Section 3.01 |
Amount Unlimited; Issuable in Series |
11 |
| Section 3.02 |
Denominations |
14 |
| Section 3.03 |
Execution, Authentication, Delivery and Dating |
14 |
| Section 3.04 |
Temporary Securities |
16 |
| Section 3.05 |
Registrar |
17 |
| Section 3.06 |
Transfer and Exchange |
17 |
| Section 3.07 |
Mutilated, Destroyed, Lost and Stolen Securities |
20 |
| Section 3.08 |
Payment of Interest; Interest Rights Preserved |
20 |
| Section 3.09 |
Cancellation |
21 |
| Section 3.10 |
Computation of Interest |
21 |
| Section 3.11 |
Currency of Payments in Respect of Securities |
22 |
| Section 3.12 |
Judgments |
22 |
| Section 3.13 |
CUSIP Numbers |
22 |
| |
|
|
| Article IV |
| REDEMPTION OF SECURITIES |
| |
| Section 4.01 |
Applicability of Right of Redemption |
23 |
| Section 4.02 |
Selection of Securities to be Redeemed |
23 |
| Section 4.03 |
Notice of Redemption |
23 |
| Section 4.04 |
Deposit of Redemption Price |
24 |
| Section 4.05 |
Securities Payable on Redemption Date |
24 |
| Section 4.06 |
Securities Redeemed in Part |
24 |
| |
|
|
| Article V |
| SINKING FUNDS |
| |
| Section 5.01 |
Applicability of Sinking Fund |
25 |
| Section 5.02 |
Mandatory Sinking Fund Obligation |
25 |
| Section 5.03 |
Optional Redemption at Sinking Fund Redemption Price |
25 |
| Section 5.04 |
Application of Sinking Fund Payment |
26 |
2 The Table of Contents is not a part of the Indenture.
| |
|
|
| Article VI |
| PARTICULAR COVENANTS OF THE COMPANY |
| |
| Section 6.01 |
Payments of Securities |
26 |
| Section 6.02 |
Paying Agent |
26 |
| Section 6.03 |
To Hold Payment in Trust |
27 |
| Section 6.04 |
Merger, Consolidation and Sale of Assets |
28 |
| Section 6.05 |
Compliance Certificate |
28 |
| Section 6.06 |
Conditional Waiver by Holders of Securities |
29 |
| Section 6.07 |
Statement by Officers as to Default |
29 |
| |
|
|
| Article VII |
| REMEDIES OF TRUSTEE AND SECURITYHOLDERS |
| |
| Section 7.01 |
Events of Default |
29 |
| Section 7.02 |
Acceleration; Rescission and Annulment |
30 |
| Section 7.03 |
Other Remedies |
31 |
| Section 7.04 |
Trustee as Attorney-in-Fact |
32 |
| Section 7.05 |
Priorities |
32 |
| Section 7.06 |
Control by Securityholders; Waiver of Past Defaults |
32 |
| Section 7.07 |
Limitation on Suits |
33 |
| Section 7.08 |
Undertaking for Costs |
33 |
| Section 7.09 |
Remedies Cumulative |
33 |
| |
|
|
| Article VIII |
| CONCERNING THE SECURITYHOLDERS |
| |
| Section 8.01 |
Evidence of Action of Securityholders |
34 |
| Section 8.02 |
Proof of Execution or Holding of Securities |
34 |
| Section 8.03 |
Persons Deemed Owners |
34 |
| Section 8.04 |
Effect of Consents |
35 |
| |
|
|
| Article IX |
| REPORTS BY THE COMPANY AND THE TRUSTEE AND SECURITYHOLDERS’ LISTS |
| |
| Section 9.01 |
Reports by Trustee |
35 |
| Section 9.02 |
Reports by the Company |
35 |
| Section 9.03 |
Securityholders’ Lists |
35 |
| |
|
|
| Article X |
| CONCERNING THE TRUSTEE |
| |
| Section 10.01 |
Rights of Trustees; Compensation and Indemnity |
36 |
| Section 10.02 |
Duties of Trustee |
38 |
| Section 10.03 |
Notice of Defaults |
39 |
| Section 10.04 |
Eligibility; Disqualification |
39 |
| Section 10.05 |
Resignation and Notice; Removal |
39 |
| Section 10.06 |
Successor Trustee by Appointment |
40 |
| Section 10.07 |
Successor Trustee by Merger |
41 |
| Section 10.08 |
Right to Rely on Officer’s Certificate |
41 |
| Section 10.09 |
Appointment of Authenticating Agent |
42 |
| Section 10.10 |
Communications by Securityholders with Other Securityholders |
42 |
| Section 10.11 |
Preferential Collection of Claims Against Company |
42 |
| |
|
|
| Article XI |
| SATISFACTION AND DISCHARGE; DEFEASANCE |
| |
| Section 11.01 |
Satisfaction and Discharge of Indenture |
43 |
| Section 11.02 |
Discharge or Defeasance upon Deposit of Moneys or U.S. Government Obligations |
43 |
| Section 11.03 |
Repayment to Company |
44 |
| Section 11.04 |
Indemnity for U.S. Government Obligations |
45 |
| Section 11.05 |
Deposits to Be Held in Escrow |
45 |
| Section 11.06 |
Application of Trust Money |
45 |
| Section 11.07 |
Deposits of Non-U.S. Currencies |
45 |
| |
|
|
| Article XII |
| IMMUNITY OF CERTAIN PERSONS |
| |
| Section 12.01 |
No Personal Liability |
46 |
| |
|
|
| Article XIII |
| SUPPLEMENTAL INDENTURES |
| |
| Section 13.01 |
Without Consent of Securityholders |
46 |
| Section 13.02 |
With Consent of Securityholders; Limitations |
48 |
| Section 13.03 |
Trustee Protected |
48 |
| Section 13.04 |
Effect of Execution of Supplemental Indenture |
49 |
| Section 13.05 |
Notation on or Exchange of Securities |
49 |
| Section 13.06 |
Conformity with TIA |
49 |
| |
|
|
| Article XIV |
| SUBORDINATION OF SECURITIES |
| |
| Section 14.01 |
Agreement to Subordinate |
49 |
| Section 14.02 |
Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities |
49 |
| Section 14.03 |
No Payment on Securities in Event of Default on Senior Indebtedness |
51 |
| Section 14.04 |
Payments on Securities Permitted |
51 |
| Section 14.05 |
Authorization of Securityholders to Trustee to Effect Subordination |
51 |
| Section 14.06 |
Notices to Trustee |
51 |
| Section 14.07 |
Trustee as Holder of Senior Indebtedness |
52 |
| Section 14.08 |
Modifications of Terms of Senior Indebtedness |
52 |
| Section 14.09 |
Reliance on Judicial Order or Certificate of Liquidating Agent |
52 |
| Section 14.10 |
Satisfaction and Discharge; Discharge and Covenant Defeasance |
52 |
| Section 14.11 |
Trustee Not Fiduciary for Holders of Senior Indebtedness |
53 |
| |
|
|
| Article XV |
| MISCELLANEOUS PROVISIONS |
| |
| Section 15.01 |
Certificates and Opinions as to Conditions Precedent |
53 |
| Section 15.02 |
Trust Indenture Act Controls |
54 |
| Section 15.03 |
Notices to the Company and Trustee |
54 |
| Section 15.04 |
Notices; Waiver of Notice |
54 |
| Section 15.05 |
Legal Holiday |
55 |
| Section 15.06 |
No Adverse Interpretation of Other Agreements |
55 |
| Section 15.07 |
Effects of Headings and Table of Contents |
55 |
| Section 15.08 |
Successors and Assigns |
55 |
| Section 15.09 |
Separability Clause |
55 |
| Section 15.10 |
Benefits of Indenture |
55 |
| Section 15.11 |
Counterparts Originals |
55 |
| Section 15.12 |
Governing Law; Submission to Jurisdiction; Waiver of Trial by Jury |
55 |
| Section 15.13 |
Certain Tax Information |
56 |
INDENTURE dated as of [__], 20[__], among Shake
Shak Inc., a Delaware corporation (the “Company”), and ,
a , as trustee (the “Trustee”).
WITNESSETH:
WHEREAS, the Company has duly authorized the execution
and delivery of this Indenture to provide for the issuance of secured or unsecured debentures, notes, bonds or other evidences of indebtedness
(the “Securities”) in an unlimited aggregate principal amount to be issued from time to time in one or more series as provided
in this Indenture; and
WHEREAS, all things necessary to make this Indenture
a valid and legally binding agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and the
purchase of the Securities by the Holders thereof for the benefit of each other and the equal and proportionate benefit of all of the
present and future Holders of the Securities (and, to the extent the provisions of Article XIV are applicable to the Securities of
any series, the benefit of Senior Indebtedness with respect to the Securities of such series), each party agrees and covenants as follows:
Article I
DEFINITIONS
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b) unless
otherwise defined in this Indenture or the context otherwise requires, all terms used herein without definition which are defined in the
Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein and the terms “cash
transaction” and “self-liquidating paper”, as used in Section 311 of the Trust Indenture Act,
shall have the meanings assigned to them in the rules of the SEC adopted under the Trust Indenture Act;
(c) the
words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision;
(d) references
to “Article” or “Section” or other subdivision herein are references to an Article, Section or other subdivision
of this Indenture unless the context otherwise requires;
(e) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles
in the United States of America;
(f) “or” is
not exclusive;
(g) provisions apply to successive events
and transactions; and
(h) references to sections of or
rules under the Exchange Act shall be deemed to include substitute, replacement of successor sections or rules adopted by
the SEC from time to time.
Section 1.01 Definitions.
Except as otherwise expressly provided or unless
the context otherwise requires, the terms defined in this Section 1.01 shall for all purposes of this Indenture have the meanings
hereinafter set forth:
Affiliate:
The term “Affiliate,” with respect
to any specified Person shall mean any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified
Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Agent:
The term “Agent” means any Registrar,
Paying Agent or Security Custodian.
Applicable Procedures:
The term “Applicable Procedures” means,
with respect to any payment, tender, redemption, transfer or exchange of or for beneficial interests in any Global Security, the rules and
procedures of the Depositary for the series of Securities all or part of which is evidenced by such Global Security that apply to such
payment, tender, redemption, transfer or exchange.
Authenticating Agent:
The term “Authenticating Agent” shall
have the meaning assigned to it in Section 10.09.
Board of Directors:
The term “Board of Directors” shall
mean either the board of directors of the Company or the executive or any other committee of that board duly authorized to act in respect
hereof.
Board Resolution:
The term “Board Resolution” shall mean
a copy of a resolution or resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors (or by a committee of the Board of Directors to the extent that any such committee has been authorized by the Board
of Directors to establish or approve the matters contemplated) and to be in full force and effect on the date of such certification. References
to any matter in this Indenture being established in, by or pursuant to a Board Resolution shall include actions taken and matters established
pursuant to authority granted by one or more Board Resolutions.
Business Day:
The
term “Business Day,” when used with respect to any Place of Payment or any other particular location referred to in
this Indenture or in the Securities, shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or obligated by law or executive order to close.
Capital Stock:
The
term “Capital Stock” shall mean:
(a) in
the case of a corporation, corporate stock;
(b) in the case
of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of
corporate stock;
(c) in
the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(d) any
other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or
not such debt securities include any right of participation with Capital Stock.
Code:
The term “Code” shall mean the Internal
Revenue Code of 1986, as amended.
Company:
The term “Company” shall mean the Person
named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
Company Order:
The
term “Company Order” shall mean a written order signed in the name of the Company by the Chairman of the Board of Directors,
any President, any Co-President, Chief Executive Officer, Chief Financial Officer, any Executive Vice President, any Senior Vice
President or Vice President, the Treasurer or Assistant Treasurer, the Controller or Assistant Controller, the Secretary or Assistant
Secretary of the Company, and delivered to the Trustee.
Corporate Trust Office:
The
term “Corporate Trust Office,” or other similar term, shall mean the principal office of the Trustee at which at any particular
time its corporate trust business shall be administered, which office at the date hereof is located at ,
Attention: , ,
or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice
to the Holders and the Company).
Covenant Defeasance:
The
term “Covenant Defeasance” shall have the meaning assigned to it in Section 11.02.
Currency:
The
term “Currency” shall mean U.S. Dollars or Foreign Currency.
Default:
The
term “Default” shall have the meaning assigned to it in Section 10.03.
Defaulted Interest:
The term “Defaulted Interest” shall
have the meaning assigned to it in Section 3.08(b).
Depositary:
The term “Depositary” shall mean, with
respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, each Person
designated as Depositary by the Company pursuant to Section 3.01(p) until one or more successor Depositaries shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person
who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect
to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.
Designated Currency:
The
term “Designated Currency” shall have the meaning assigned to it in Section 3.12.
Discharged:
The term “Discharged” shall have the
meaning assigned to it in Section 11.02.
Electronic Means:
The term “Electronic Means” shall mean
the following communications methods: S.W.I.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable
authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee
as available for use in connection with its services hereunder.
Event of Default:
The
term “Event of Default” shall have the meaning specified in Section 7.01.
Exchange Act:
The
term “Exchange Act” shall mean the United States Securities Exchange Act of 1934, and the rules and regulations
promulgated by the SEC thereunder and any statute successor thereto, in each case as amended from time to time.
Exchange Rate:
The
term “Exchange Rate” shall have the meaning assigned to it in Section 7.01.
Floating Rate Security:
The
term “Floating Rate Security” shall mean a Security that provides for the payment of interest at a variable rate determined
periodically by reference to an interest rate index specified pursuant to Section 3.01.
Foreign Currency:
The term “Foreign Currency” shall mean
a currency issued by the government of any country other than the United States or a composite currency, the value of which is determined
by reference to the values of the currencies of any group of countries.
GAAP:
The term “GAAP,” with respect to any
computations required or permitted hereunder, shall mean generally accepted accounting principles in the United States as in effect from
time to time; provided, however if the Company is required by the SEC to adopt (or is permitted to adopt and so adopts) a different accounting
framework, including but not limited to the International Financial Reporting Standards, “GAAP” shall mean such new accounting
framework as in effect from time to time, including, without limitation, in each case, those accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the
accounting profession.
Global Security:
The
term “Global Security” shall mean any Security that evidences all or part of a series of Securities, issued in fully-registered
certificated form to the Depositary for such series in accordance with Section 3.03 and bearing the legend prescribed in Section 3.03(g) and
any other legend required by the Depositary for such series.
Holder; Holder of Securities:
The
terms “Holder” and “Holder of Securities” are defined under “Securityholder; Holder of Securities;
Holder.”
Indebtedness:
The
term “Indebtedness” shall mean indebtedness for borrowed money or for the unpaid purchase price of real or personal
property of, or guaranteed by, such Person and computed in accordance with GAAP.
Indenture:
The
term “Indenture” or “this Indenture” shall mean this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by Section 3.01; provided, however, that
if at any time more than one Person is acting as Trustee under this Indenture due to the appointment of one or more separate Trustees
for any one or more separate series of Securities, “Indenture” shall mean, with respect to such series of Securities for which
any such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular
series of Securities for which such Person is Trustee established as contemplated by Section 3.01, exclusive, however, of any provisions
or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered
after such person had become such Trustee, but to which such person, as such Trustee, was not a party; provided, further that in the event
that this Indenture is supplemented or amended by one or more indentures supplemental hereto which are only applicable to certain series
of Securities, the term “Indenture” for a particular series of Securities shall only include the supplemental indentures applicable
thereto.
Individual Securities:
The
term “Individual Securities” shall have the meaning specified in Section 3.01(p).
Interest:
The
term “interest” shall mean, unless the context otherwise requires, interest payable on any Securities, and with respect
to an Original Issue Discount Security that by its terms bears interest only after Maturity, interest payable after Maturity.
Interest Payment Date:
The
term “Interest Payment Date” shall mean, with respect to any Security, the Stated Maturity of an installment of interest
on such Security.
Mandatory Sinking Fund Payment:
The
term “Mandatory Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01(b).
Maturity:
The
term “Maturity,” with respect to any Security, shall mean the date on which the principal or an installment of principal
of such Security shall become due and payable as therein and herein provided, whether at the stated maturity thereof, by declaration of
acceleration, call for redemption or otherwise.
Members:
The
term “Members” shall have the meaning assigned to it in Section 3.03(i).
Officer’s Certificate:
The
term “Officer’s Certificate” shall mean a certificate signed by any President, any Co-President, Chief Executive
Officer, Chief Financial Officer, any Executive Vice President, any Senior Vice President or Vice President, the Treasurer or any Assistant
Treasurer, the Controller or any Assistant Controller, the Secretary or any Assistant Secretary of the Company. Each such certificate
shall include the statements provided for in Section 15.01 if and to the extent required by the provisions of such Section.
Opinion of Counsel:
The
term “Opinion of Counsel” shall mean an opinion in writing signed by one or more legal counsel, who may be an employee
of or of counsel to the Company, or may be one or more other counsel that meets the requirements, to the extent applicable to such opinion,
provided for in Section 15.01.
Optional Sinking Fund Payment:
The
term “Optional Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01(b).
Original Issue Discount Security:
The term “Original Issue Discount Security”
shall mean any Security that is issued with “original issue discount” within the meaning of Section 1273(a) of the
Code and the regulations thereunder, or any successor provision, and any other Security designated by the Company as issued with original
issue discount for United States federal income tax purposes.
Outstanding:
The term “Outstanding,” when used with
respect to Securities means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture,
except:
(a) Securities
theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities
or portions thereof for the payment or redemption of which money in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities (in each case other than pursuant to Section 11.02); provided, however,
that if such Securities or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture
or provision therefor satisfactory to the Trustee has been made;
(c) Securities
as to which the Company’s obligations have been Discharged pursuant to Section 11.02 or as to which Covenant Defeasance has
been effected pursuant to Section 11.02, except, in each case, to the extent provided in Section 11.02; and
(d) Securities
that have been paid pursuant to Section 3.07(b) or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to a Responsible
Officer of the Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose hands such Securities
are valid obligations of the Company.
Notwithstanding
the foregoing, in determining whether the Holders of the requisite principal amount of Securities of a series Outstanding have
performed any action hereunder, Securities owned by the Company or any other obligor upon the Securities of such series or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such action, only Securities of such series that a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon such Securities or any Affiliate of the Company or of such other obligor. In
determining whether the Holders of the requisite principal amount of Outstanding Securities of a series have performed any action hereunder,
the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purpose shall be the amount
of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 7.02 and the principal amount of a Security denominated in a Foreign Currency that shall be
deemed to be Outstanding for such purpose shall be the amount calculated pursuant to Section 3.11(b).
Paying Agent:
The term “Paying Agent” shall have
the meaning assigned to it in Section 6.02(a).
Person:
The term “Person” shall mean an (y) individual,
corporation, limited liability company, partnership, joint venture association, joint stock company, trust, unincorporated organization
or government or agency or political subdivision thereof or any other entity.
Place of Payment:
The
term “Place of Payment” shall mean, when used with respect to the Securities of any series, the place or places where
the principal of and premium, if any, and interest on the Securities of that series are payable as specified pursuant to Section 3.01.
Predecessor Security:
The term “Predecessor Security” shall
mean, with respect to any Security, every previous Security evidencing all or a portion of the same Indebtedness as that evidenced by
such particular Security, and, for the purposes of this definition, any Security authenticated and delivered under Section 3.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same Indebtedness as the lost, destroyed or stolen Security.
Record Date:
The term “Record Date” shall mean,
with respect to any interest payable on any Security on any Interest Payment Date, the close of business on any date specified in such
Security for the payment of interest pursuant to Section 3.01.
Redemption Date:
The term “Redemption Date” shall mean,
when used with respect to any Security to be redeemed, in whole or in part, the date fixed for such redemption by or pursuant to this
Indenture and the terms of such Security, which, in the case of a Floating Rate Security, unless otherwise specified pursuant to Section 3.01,
shall be an Interest Payment Date only.
Redemption Price:
The
term “Redemption Price,” when used with respect to any Security to be redeemed, in whole or in part, shall mean the
price at which it is to be redeemed pursuant to the terms of the applicable Security and this Indenture.
Register:
The
term “Register” shall have the meaning assigned to it in Section 3.05(a).
Registrar:
The
term “Registrar” shall have the meaning assigned to it in Section 3.05(a).
Responsible Officer:
The term “Responsible Officer” of the
Trustee hereunder shall mean any vice president, any assistant vice president, any trust officer, any assistant trust officer or any other
officer associated with the corporate trust department of the Trustee customarily performing functions similar to those performed by any
of the above designated officers, who shall have direct responsibility for the administration of this Indenture, and also means, with
respect to a particular corporate trust matter, any other officer of the Trustee to whom such matter is referred because of such person’s
knowledge of and familiarity with the particular subject.
SEC:
The
term “SEC” shall mean the United States Securities and Exchange Commission, as constituted from time to time.
Securities Act:
The
term “Securities Act” shall mean the United States Securities Act of 1933 and the rules and regulations promulgated
by the SEC thereunder and any statute successor thereto, in each case as amended from time to time.
Security:
The
term “Security” or “Securities” shall have the meaning stated in the recitals and shall more particularly mean
one or more of the Securities duly authenticated by the Trustee and delivered pursuant to the provisions of this Indenture.
Security Custodian:
The
term “Security Custodian” shall mean the custodian with respect to any Global Security appointed by the Depositary,
or any successor Person thereto, and shall initially be the Paying Agent.
Securityholder; Holder of Securities; Holder:
The
term “Securityholder” or “Holder of Securities” or “Holder,” shall mean the Person in whose name Securities
shall be registered in the Register.
Senior Indebtedness:
The term “Senior Indebtedness” means
the principal of (and premium, if any) and unpaid interest on (x) Indebtedness of the Company, whether outstanding on the date hereof
or thereafter created, incurred, assumed or guaranteed, for money borrowed other than (a) any Indebtedness of the Company which when
incurred, and without respect to any election under Section 1111(b) of the Federal Bankruptcy Code, was without recourse to
the Company, (b) any Indebtedness of the Company to any of its Subsidiaries, (c) Indebtedness to any employee of the Company,
(d) any liability for taxes, (e) Trade Payables and (f) any Indebtedness of the Company which is expressly subordinate
in right of payment to any other Indebtedness of the Company, and (y) renewals, extensions, modifications and refundings of any such
Indebtedness. For purposes of this definition of “Senior Indebtedness,” the phrase “subordinated in right of payment”
means debt subordination only and not lien subordination, and accordingly, (i) unsecured indebtedness shall not be deemed to be subordinated
in right of payment to secured indebtedness merely by virtue of the fact that it is unsecured, and (ii) junior liens, second liens
and other contractual arrangements that provide for priorities among Holders of the same or different issues of indebtedness with respect
to any collateral or the proceeds of collateral shall not constitute subordination in right of payment. This definition may be modified
or superseded by a supplemental indenture.
Special Record Date:
The
term “Special Record Date” shall have the meaning assigned to it in Section 3.08(b)(i).
Stated Maturity:
The term “Stated Maturity” when used
with respect to any Security or any installment of principal or interest thereon, shall mean the date specified in such Security as the
fixed date on which the principal (or any portion thereof) of or premium, if any, on such Security or such installment of principal or
interest is due and payable. Notwithstanding the foregoing, if any such date is not a Business Day, then payment of such amounts payable
on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any
such delay) with the same force and effect as if made on such date.
Subsidiary:
The term “Subsidiary,” when used with
respect to any Person, shall mean:
(a) any
corporation, limited liability company, association or other business entity of which more than 50% of the total voting power of shares
of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’
agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, limited
liability company, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person (or a combination thereof); and
(b) any
partnership (i) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or
(ii) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
Successor Company:
The term “Successor Company” shall
have the meaning assigned to it in Section 3.06(i).
Trade Payables:
The
term “Trade Payables” means accounts payable or any other Indebtedness or monetary obligations to trade creditors created
or assumed by the Company or any Subsidiary of the Company in the ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities).
Trust Indenture Act; TIA:
The
term “Trust Indenture Act” or “TIA” shall mean the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder as in effect on the date of this Indenture, except as provided in Section 13.06 and except to the extent
any amendment to the Trust Indenture Act expressly provides for application of the Trust Indenture Act as in effect on another date.
Trustee:
The
term “Trustee” shall mean the Person named as the “Trustee” in the first paragraph of this Indenture until a successor
Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture,
and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect
to Securities of that series.
U.S. Dollars:
The
term “U.S. Dollars” shall mean such currency of the United States as at the time of payment shall be legal tender for
the payment of public and private debts.
U.S. Government Obligations:
The
term “U.S. Government Obligations” shall have the meaning assigned to it in Section 11.02.
United States:
The term “United States” shall mean
the United States of America (including the States and the District of Columbia), its territories and its possessions and other areas
subject to its jurisdiction.
Article II
FORMS
OF SECURITIES
Section 2.01 Terms
of the Securities
(a) The
Securities of each series shall be substantially in the form set forth in an Officer’s Certificate or in one or more indentures
supplemental hereto, and shall have such appropriate insertions, omissions, substitutions and other variations as are required or not
prohibited by this Indenture, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements
placed thereon as the Company may deem appropriate and as are not prohibited by the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities
exchange on which any series of the Securities may be listed or of any automated quotation system on which any such series may be quoted,
or to conform to usage, all as determined by any of the officers executing such Securities as conclusively evidenced by their execution
of such Securities.
(b) The
terms and provisions of the Securities shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent applicable,
the Company and the Trustee, by their execution and delivery of this Indenture expressly agree to such terms and provisions and to be
bound thereby.
Section 2.02 Form of
Trustee’s Certificate of Authentication
(a) Only
such of the Securities as shall bear thereon a certificate substantially in the form of the Trustee’s certificate of authentication
hereinafter recited, executed by the Trustee by manual signature, shall be valid or become obligatory for any purpose or entitle the Holder
thereof to any right or benefit under this Indenture.
(b) Each
Security shall be dated the date of its authentication, except that any Global Security shall be dated as of the date specified as contemplated
in Section 3.01.
(c) The
form of the Trustee’s certificate of authentication to be borne by the Securities shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
| Date of authentication: ___________ |
[____________________________],
[__________________], as Trustee |
Section 2.03 Form of
Trustee’s Certificate of Authentication by an Authenticating Agent. If at any time there shall be an Authenticating Agent appointed
with respect to any series of Securities, then the Trustee’s Certificate of Authentication by such Authenticating Agent to be borne
by Securities of each such series shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
| Date of authentication: ___________ |
[____________________________],
[__________________], as Trustee |
| By: | [NAME OF AUTHENTICATING AGENT] |
Article III
THE
DEBT SECURITIES
Section 3.01 Amount
Unlimited; Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture
is unlimited. The Securities may be issued in one or more series. There shall be set forth in an Officer’s Certificate or in one
or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(a) the
title of the Securities of the series including CUSIP numbers (which shall distinguish the Securities of such series from the Securities
of all other series, except to the extent that additional Securities of an existing series are being issued);
(b) any
limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon transfer of, or in exchange for, or in lieu of, other Securities of such series
pursuant to Section 3.04, 3.06, 3.07, 4.06, or 13.05) and except for any Securities that, pursuant to Section 3.03, are deemed
never to have been authenticated and delivered hereunder);
(c) the
dates on which or periods during which the Securities of the series may be issued, and the dates on, or the range of dates within, which
the principal of and premium, if any, on the Securities of such series are or may be payable or the method by which such date or dates
shall be determined or extended;
(d) the
rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined,
whether such interest shall be payable in cash or additional Securities of the same series or another class or series of securities or
shall accrue and increase the aggregate principal amount outstanding of such series (including if such Securities were originally issued
at a discount), the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable, and the Record Dates for the determination of Holders to whom
interest is payable on such Interest Payment Dates or the method by which such date or dates shall be determined, the right, if any, to
extend or defer interest payments and the duration of such extension or deferral;
(e) if
other than U.S. Dollars, the Foreign Currency in which Securities of the series shall be denominated or in which payment of the principal
of, premium, if any, or interest on the Securities of the series shall be payable and any other terms concerning such payment;
(f) if
the amount of payment of principal of, premium, if any, or interest on the Securities of the series may be determined with reference to
an index, formula or other method including, but not limited to, an index based on a Currency or Currencies other than that in which the
Securities are stated to be payable, the manner in which such amounts shall be determined;
(g) if
the principal of, premium, if any, or interest on Securities of the series are to be payable, at the election of the Company or a Holder
thereof, in a Currency other than that in which the Securities are denominated or stated to be payable without such election, the period
or periods within which, and the terms and conditions upon which, such election may be made and the time and the manner of determining
the exchange rate between the Currency in which the Securities are denominated or payable without such election and the Currency in which
the Securities are to be paid if such election is made;
(h) the
place or places, if any, in addition to or instead of the Corporate Trust Office of the Trustee where the principal of, premium, if any,
and interest on Securities of the series shall be payable, and where Securities of any series may be presented for registration of transfer,
exchange or conversion, and the place or places where notices and demands to or upon the Company in respect of the Securities of such
series may be made;
(i) the
price or prices at which, the period or periods within which or the date or dates on which, and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;
(j) the
obligation or right, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund, amortization
or analogous provisions or at the option of a Holder thereof and the price or prices at which, the period or periods within which or the
date or dates on which, the Currency or Currencies in which and the terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(k) if
other than denominations of $2,000 and integral multiples of $1,000 in excess thereof, the denominations in which Securities of the series
shall be issuable;
(l) if
other than the principal amount thereof, the portion of the principal amount of the Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 7.02;
(m) the
guarantors, if any, of the Securities of the series, and the extent of the guarantees (including provisions relating to seniority, subordination,
and the release of the guarantors), if any, and any additions or changes to permit or facilitate guarantees of such Securities;
(n) whether
the Securities of the series are to be issued as Original Issue Discount Securities and the amount of discount with which such Securities
may be issued;
(o) provisions,
if any, for the defeasance of Securities of the series in whole or in part and any addition to or change in the provisions related to
satisfaction and discharge;
(p) whether
the Securities of the series are to be issued in whole or in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Global Securities, and the terms and conditions, if any, upon which interests in such Global Security
or Global Securities may be exchanged in whole or in part for the individual securities represented thereby in definitive form registered
in the name or names of Persons other than such Depositary or a nominee or nominees thereof (“Individual Securities”);
(q) the
date as of which any Global Security of the series shall be dated if other than the original issuance of the first Security of the series
to be issued;
(r) the
form of the Securities of the series;
(s) if
the Securities of the series are to be convertible into or exchangeable for any securities or property of any Person (including the Company),
the terms and conditions upon which such Securities will be so convertible or exchangeable, and any additions or changes to this Indenture,
if any, to permit or facilitate such conversion or exchange;
(t) whether
the Securities of such series are subject to subordination and the terms of such subordination;
(u) any
restriction or condition on the transferability of the Securities of such series;
(v) any
addition or change in the provisions related to compensation and reimbursement of the Trustee which applies to Securities of such series;
(w) any
addition or change in the provisions related to supplemental indentures set forth in Sections 13.01, 13.02 and 13.04 which applies to
Securities of such series;
(x) provisions,
if any, granting special rights to Holders upon the occurrence of specified events;
(y) any
addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 7.02 and
any addition or change in the provisions set forth in Article VII which applies to Securities of the series;
(z) any
addition to or change in the covenants set forth in Article VI which applies to Securities of the series;
(aa) if
any payment or other obligations on Securities of such series or guarantees thereof are to be secured by any property, the nature of such
security and provisions related thereto; and
(bb) any other terms
of the Securities of such series (which terms shall not be inconsistent with the provisions of the TIA, but may modify, amend, supplement
or delete any of the terms of this Indenture with respect to such series).
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided herein or set forth in a Company Order or in one or more indentures
supplemental hereto. Unless otherwise specified with respect to the Securities of any series pursuant to this Section 3.01, the Company
may, at its option, at any time and from time to time, re-open any series of Securities previously issued under this Indenture and issue
additional Securities of such series, all of which together shall constitute a single series of Securities under this Indenture; provided
that, unless otherwise specified pursuant to this Section 3.01 with respect to a series of Securities, no additional Securities of
any series may be issued if an Event of Default has occurred and is continuing with respect to such series. Any such re-opening and the
terms thereof (including, without limitation, the principal amount of the additional Securities of such series to be issued) shall be
set forth in a Company Order or in one or more indentures supplemental hereto delivered to the Trustee prior to the issuance of any such
additional Securities of such series.
Section 3.02 Denominations.
In the absence of any specification pursuant to Section 3.01 with respect to Securities of any series, the Securities of such series
shall be issuable only as Securities in denominations of $2,000 and integral multiples of $1,000 in excess thereof, and shall be payable
only in U.S. Dollars.
Section 3.03 Execution,
Authentication, Delivery and Dating.
(a) The
Securities shall be executed in the name and on behalf of the Company by the manual or facsimile signature of any President, any Co-President,
Chief Executive Officer, Chief Financial Officer, one of its Executive Vice Presidents, Senior Vice Presidents or Vice Presidents, its
Controller or one of its Assistant Controllers, its Treasurer or one of its Assistant Treasurers, its Secretary or one of its Assistant
Secretaries. If the Person whose signature is on a Security no longer holds that office at the time the Security is authenticated and
delivered, the Security shall nevertheless be valid.
(b) At
any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed
by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities
and, if required pursuant to Section 3.01, a supplemental indenture or an Officer’s Certificate setting forth the terms of
the Securities of such series. The Trustee shall thereupon authenticate and deliver such Securities without any further action by the
Company. The Company Order shall specify the amount of Securities to be authenticated and the date on which the original issue of such
Securities is to be authenticated.
(c) In
authenticating the first Securities of any series and accepting the additional responsibilities under this Indenture in relation to such
Securities the Trustee shall receive, and (subject to Section 10.02) shall be fully protected in relying upon:
(i) an
executed supplemental indenture, if any;
(ii) an
Officer’s Certificate delivered in accordance with Section 15.01; and
(iii) an
Opinion of Counsel delivered in accordance with Section 15.01 and which shall also state (subject to any assumptions or qualifications
deemed necessary by counsel providing such Opinion of Counsel):
(1) that
the form of such Securities has been established in conformity with the provisions of this Indenture;
(2) that
the terms of such Securities have been established in conformity with the provisions of this Indenture; and
(3) that
such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to any necessary assumptions or qualifications, including, without limitation, bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
(d) The
Trustee shall have the right to decline to authenticate and deliver the Securities under this Section 3.03 if the issue of the Securities
pursuant to this Indenture will adversely affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture
or otherwise in a manner which is not reasonably acceptable to the Trustee.
(e) Each
Security shall be dated the date of its authentication, except as otherwise provided pursuant to Section 3.01 with respect to the
Securities of such series.
(f) Notwithstanding
the provisions of Section 3.01 and of this Section 3.03, if all of the Securities of any series are not to be originally issued
at the same time, then the documents required to be delivered pursuant to this Section 3.03 must be delivered only once prior to
the authentication and delivery of the first Security of such series;
(g) If
the Company shall establish pursuant to Section 3.01 that the Securities of a series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more Global
Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Global Securities, (ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or Global Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or the applicable Security Custodian or pursuant to such Depositary’s instruction and (iv) shall bear a legend substantially
to the following effect (or to such other effect as may be required by such Depositary):
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE
TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE (I) BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR (II) BY A NOMINEE OF THE DEPOSITARY OR THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITORY] TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [THE NOMINEE OF THE DEPOSITORY]
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO [THE NOMINEE
OF THE DEPOSITORY], ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, [THE NOMINEE OF THE DEPOSITORY], HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”
The aggregate principal amount of each Global Security may from time
to time be increased or decreased by adjustments made on the records of the Security Custodian, as provided in this Indenture, or on a
schedule to such Global Security.
(h) Each
Depositary designated pursuant to Section 3.01 for a Global Security in registered form must, at the time of its designation and
at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute
or regulation.
(i) Members
of, or participants in, the Depositary (“Members”) shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary or by the Security Custodian under such Global Security, and the Depositary may be treated by the
Company, the Trustee, the Paying Agent and the Registrar and any of their agents as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent or the Registrar
or any of their agents from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair,
as between the Depositary and its Members, the operation of customary practices of the Depositary governing the exercise of the rights
of an owner of a beneficial interest in any Global Security. The Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Members and Persons that may hold interests through Members, to take any action that a Holder is entitled to take
under this Indenture or the Securities.
(j) No
Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in one of the forms provided for herein duly executed by the Trustee or by an Authenticating
Agent by manual or facsimile signature of an authorized signatory of the Trustee or such Authenticating Agent, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of thi Indenture.
Section 3.04 Temporary
Securities.
(a) Pending
the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities that are printed, lithographed, typewritten, mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form and with such
appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities. Any such temporary Security may be in the form of one or more Global Securities, representing
all or a portion of the Outstanding Securities of such series. Every such temporary Security shall be executed by the Company and shall
be authenticated and delivered by the Trustee upon the same conditions and in substantially the same manner, and with the same effect,
as the definitive Security or Securities in lieu of which it is issued.
(b) If
temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of such temporary Securities at the office or agency of the Company in a Place of
Payment for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive
Securities of the same series of authorized denominations and of like tenor. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
(c) Upon
any exchange of a portion of a temporary Global Security for a definitive Global Security or for the Individual Securities represented
thereby pursuant to this Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed by the Trustee to reflect
the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall be reduced
for all purposes by the amount so exchanged and endorsed.
Section 3.05 Registrar.
(a) The
Company will keep, at an office or agency to be maintained by it in a Place of Payment where Securities may be presented for registration
or presented and surrendered for registration of transfer or of exchange, and where Securities of any series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable (the “Registrar”), a security register for the registration and
the registration of transfer or of exchange of the Securities (the registers maintained in such office and in any other office or agency
of the Company in a Place of Payment being herein sometimes collectively referred to as the “Register”), as in this Indenture
provided, which Register shall at all reasonable times be open for inspection by the Trustee. Such Register shall be in written form or
in any other form capable of being converted into written form within a reasonable time. The Company may have one or more co-Registrars;
the term “Registrar” includes any co-Registrar.
(b) The
Company shall enter into an appropriate agency agreement with any Registrar or co-Registrar not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address
of each such agent. If the Company fails to maintain a Registrar for any series, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 10.01. The Company or any Affiliate thereof may act as Registrar, co-Registrar
or transfer agent.
(c) The
Company hereby appoints the Trustee at its Corporate Trust Office as Registrar in connection with the Securities and this Indenture, until
such time as another Person is appointed as such. If, at any time, the Trustee is not the Registrar, the Registrar shall make available
to the Trustee ten (10) days prior to each interest payment date and at such other times as the Trustee may reasonably request the
names and addresses of the Holders as they appear in the Register.
Section 3.06 Transfer
and Exchange.
(a) Transfer.
(i) Upon
surrender for registration of transfer of any Security of any series at the Registrar the Company shall execute, and the Trustee or any
Authenticating Agent shall authenticate and deliver, in the name of the designated transferee, one or more new Securities of the same
series for like aggregate principal amount of any authorized denomination or denominations. The transfer of any Security shall not be
valid as against the Company or the Trustee unless registered at the Registrar at the request of the Holder, or at the request of his,
her or its attorney duly authorized in writing.
(ii) Notwithstanding
any other provision of this Section, unless and until it is exchanged in whole or in part for the Individual Securities represented thereby,
a Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary
or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
(b) Exchange.
(i) At
the option of the Holder, Securities of any series (other than a Global Security, except as set forth below) may be exchanged for other
Securities of the same series for like aggregate principal amount of any authorized denomination or denominations, upon surrender of the
Securities to be exchanged at the Registrar.
(ii) Whenever
any Securities are so surrendered for exchange, the Company shall execute, and the Trustee or an Authenticating Agent shall authenticate
and deliver, the Securities that the Holder making the exchange is entitled to receive.
(c) Exchange
of Global Securities for Individual Securities. Except as provided below, owners of beneficial interests in Global Securities will not
be entitled to receive Individual Securities.
(i) Individual
Securities shall be issued to all owners of beneficial interests in a Global Security in exchange for such interests if: (A) at any
time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be eligible under Section 3.03(h) and,
in each case, a successor Depositary is not appointed by the Company within 90 days of such notice, or (B) the Company executes and
delivers to the Trustee and the Registrar an Officer’s Certificate stating that such Global Security shall be so exchangeable.
In connection with the exchange of an entire Global
Security for Individual Securities pursuant to this subsection (c), such Global Security shall be deemed to be surrendered to the Trustee
for cancellation, and the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery
of Individual Securities of such series, will authenticate and deliver to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in such Global Security, an equal aggregate principal amount of Individual Securities of authorized denominations.
(ii) The
owner of a beneficial interest in a Global Security will be entitled to receive an Individual Security in exchange for such interest if
an Event of Default has occurred and is continuing. Upon receipt by the Security Custodian and Registrar of instructions from the Holder
of a Global Security directing the Security Custodian and Registrar to (x) issue one or more Individual Securities in the amounts
specified to the owner of a beneficial interest in such Global Security and (y) debit or cause to be debited an equivalent amount
of beneficial interest in such Global Security, subject to the rules and regulations of the Depositary:
(A) the
Security Custodian and Registrar shall notify the Company and the Trustee of such instructions, identifying the owner and amount of such
beneficial interest in such Global Security;
(B) the
Company shall promptly execute and the Trustee, upon receipt of a Company Order for the authentication and delivery of Individual Securities
of such series, shall authenticate and deliver to such beneficial owner Individual Securities in an equivalent amount to such beneficial
interest in such Global Security; and
(C) the
Security Custodian and Registrar shall decrease such Global Security by such amount in accordance with the foregoing. In the event that
the Individual Securities are not issued to each such beneficial owner promptly after the Registrar has received a request from the Holder
of a Global Security to issue such Individual Securities, the Company expressly acknowledges, with respect to the right of any Holder
to pursue a remedy pursuant to Section 7.07 hereof, the right of any beneficial Holder of Securities to pursue such remedy with respect
to the portion of the Global Security that represents such beneficial Holder’s Securities as if such Individual Securities had been
issued.
(iii) If
specified by the Company pursuant to Section 3.01 with respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in whole or in part for Individual Securities of such series
on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate
and deliver, without service charge,
(A) to
each Person specified by such Depositary a new Individual Security or new Individual Securities of the same series, of any authorized
denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest
in the Global Security; and
(B) to
such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Individual Securities delivered to Holders thereof.
(iv) In
any exchange provided for in clauses (i) through (iii), the Company will execute and the Trustee will authenticate and deliver Individual
Securities in registered form in authorized denominations.
(v) Upon
the exchange in full of a Global Security for Individual Securities, such Global Security shall be canceled by the Trustee. Individual
Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
(d) All
Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Company evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered for such registration of transfer or
exchange.
(e) Every
Security presented or surrendered for registration of transfer, or for exchange or payment shall (if so required by the Company, the Trustee
or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company,
the Trustee and the Registrar, duly executed by the Holder thereof or by his, her or its attorney duly authorized in writing.
(f) No
service charge will be made for any registration of transfer or exchange of Securities. The Company or the Trustee may require payment
of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration
of transfer or exchange of Securities, other than those expressly provided in this Indenture to be made at the Company’s own expense
or without expense or charge to the Holders.
(g) The
Company shall not be required to (i) register, transfer or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption of Securities of such series selected for redemption
under Section 4.03 and ending at the close of business on the day of such transmission, or (ii) register, transfer or exchange
any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
(h) Prior
to the due presentation for registration of transfer or exchange of any Security, the Company, the Trustee, the Paying Agent, the Registrar,
any co-Registrar or any of their agents may deem and treat the Person in whose name a Security is registered as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for
all purposes whatsoever, and none of the Company, the Trustee, the Paying Agent, the Registrar, any co-Registrar or any of their agents
shall be affected by any notice to the contrary.
(i) In
case a successor Company (“Successor Company”) has executed an indenture supplemental hereto with the Trustee pursuant to
Article XIII, any of the Securities authenticated or delivered pursuant to such transaction may, from time to time, at the request
of the Successor Company, be exchanged for other Securities executed in the name of the Successor Company with such changes in phraseology
and form as may be appropriate, but otherwise identical to the Securities surrendered for such exchange and of like principal amount;
and the Trustee, upon Company Order of the Successor Company, shall authenticate and deliver Securities as specified in such order for
the purpose of such exchange. If Securities shall at any time be authenticated and delivered in any new name of a Successor Company pursuant
to this Section 3.06 in exchange or substitution for or upon registration of transfer of any Securities, such Successor Company,
at the option of the Holders but without expense to them, shall provide for the exchange of all Securities at the time Outstanding for
Securities authenticated and delivered in such new name.
(j) Each
Holder of a Security agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange
or assignment of such Holder’s Security in violation of any provision of this Indenture and/or applicable United States federal
or state securities laws.
(k) The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any interest in any Security other than to require delivery of
such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the
terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(l) Neither
the Trustee nor any agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depositary.
Section 3.07 Mutilated,
Destroyed, Lost and Stolen Securities.
(a) If
(i) any mutilated Security is surrendered to the Trustee at its Corporate Trust Office or (ii) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee
security or indemnity satisfactory to them to save each of them and any Paying Agent harmless, and neither the Company nor the Trustee
receives notice that such Security has been acquired by a protected purchaser, then the Company shall execute and upon Company Order the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security
of the same series and of like tenor, form, terms and principal amount, bearing a number not contemporaneously outstanding, that neither
gain nor loss in interest shall result from such exchange or substitution. In every case, the applicant for a replacement Security shall
furnish the Company and the Trustee such security or indemnity as may be required by and satisfactory to them to save each of them harmless.
(b) In
case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay the amount due on such Security in accordance with its terms.
(c) Upon
the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
(d) Every
new Security of any series issued pursuant to this Section shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
(e) The
provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.08 Payment
of Interest; Interest Rights Preserved.
(a) Interest
on any Security that is payable and is punctually paid or duly provided for on any Interest Payment Date shall be paid to the Person in
whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest
notwithstanding the cancellation of such Security upon any transfer or exchange subsequent to the Record Date. Payment of interest on
Securities shall be made at the Corporate Trust Office (except as otherwise specified pursuant to Section 3.01) or, at the option
of the Company, by check mailed to the address of the Person entitled thereto as such address shall appear in the Register or, in accordance
with arrangements satisfactory to the Trustee, by wire transfer to an account designated by the Holder.
(b) Any
interest on any Security that is payable but is not punctually paid or duly provided for on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder on the relevant Record Date by virtue of his, her or its having been
such a Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (i) or
(ii) below:
(i) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest (a “Special
Record Date”), which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 calendar days and not less than 10 calendar
days prior to the date of the proposed payment and not less than 10 calendar days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to the
Holders of such Securities not less than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been given as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (ii).
(ii) The
Company may make payment of any Defaulted Interest on Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
(c) Subject
to the provisions set forth herein relating to Record Dates, each Security delivered pursuant to any provision of this Indenture in exchange
or substitution for, or upon registration of transfer of, any other Security shall carry all the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security.
Section 3.09 Cancellation.
Unless otherwise specified pursuant to Section 3.01 for Securities of any series, all Securities surrendered for payment, redemption,
registration of transfer or exchange or credit against any sinking fund or otherwise shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee for cancellation and shall be promptly canceled by it and, if surrendered to the Trustee, shall be
promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder that the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly canceled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. The Trustee shall dispose of all canceled Securities held by it in accordance with its
then customary procedures and deliver a certificate of such disposal to the Company upon its request therefor. The acquisition of any
Securities by the Company shall not operate as a redemption or satisfaction of the Indebtedness represented thereby unless and until such
Securities are surrendered to the Trustee for cancellation.
Section 3.10 Computation
of Interest. Except as otherwise specified pursuant to Section 3.01 for Securities of any series, interest on the Securities
of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 Currency
of Payments in Respect of Securities.
(a) Except
as otherwise specified pursuant to Section 3.01 for Securities of any series, payment of the principal of and premium, if any, and
interest on Securities of such series will be made in U.S. Dollars.
(b) For
purposes of any provision of this Indenture where the Holders of Outstanding Securities may perform an action that requires that a specified
percentage of the Holders of Outstanding Securities of all series perform such action and for purposes of any decision or determination
by the Trustee of amounts due and unpaid for the principal of and premium, if any, and interest on the Securities of all series in respect
of which moneys are to be disbursed ratably, the principal of and premium, if any, and interest on the Outstanding Securities denominated
in a Foreign Currency will be the amount in U.S. Dollars based upon exchange rates, determined as specified pursuant to Section 3.01
for Securities of such series, as of the date for determining whether the Holders entitled to perform such action have performed it or
as of the date of such decision or determination by the Trustee, as the case may be.
(c) Any
decision or determination to be made regarding exchange rates shall be made by an agent appointed by the Company; provided, that such
agent shall accept such appointment in writing and the terms of such appointment shall, in the opinion of the Company at the time of such
appointment, require such agent to make such determination by a method consistent with the method provided pursuant to Section 3.01
for the making of such decision or determination. All decisions and determinations of such agent regarding exchange rates shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee and all Holders of the
Securities.
Section 3.12 Judgments.
The Company may provide pursuant to Section 3.01 for Securities of any series that (a) the obligation, if any, of the Company
to pay the principal of, premium, if any, and interest on the Securities of any series in a Foreign Currency or U.S. Dollars (the “Designated
Currency”) as may be specified pursuant to Section 3.01 is of the essence and agrees that, to the fullest extent possible under
applicable law, judgments in respect of such Securities shall be given in the Designated Currency; (b) the obligation of the Company
to make payments in the Designated Currency of the principal of and premium, if any, and interest on such Securities shall, notwithstanding
any payment in any other Currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may, in accordance with normal banking procedures, purchase with the sum paid
in such other Currency (after any premium and cost of exchange) on the business day in the country of issue of the Designated Currency
or in the international banking community (in the case of a composite currency) immediately following the day on which such Holder receives
such payment; (c) if the amount in the Designated Currency that may be so purchased for any reason falls short of the amount originally
due, the Company shall pay such additional amounts as may be necessary to compensate for such shortfall; and (d) any obligation of
the Company not discharged by such payment shall be due as a separate and independent obligation and, until discharged as provided herein,
shall continue in full force and effect.
Section 3.13 CUSIP
Numbers. The Company in issuing any Securities may use CUSIP, ISIN or other similar numbers, if then generally in use, and thereafter
with respect to such series, the Trustee may use such numbers in any notice (including any notice of redemption or exchange) with respect
to such series provided that any such notice may state that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such notice, redemption or exchange shall not be affected by any defect in or omission of such numbers. The
Company will notify the Trustee of any change in the CUSIP, ISIN or other similar numbers.
Article IV
REDEMPTION
OF SECURITIES
Section 4.01 Applicability
of Right of Redemption. Redemption of Securities (other than pursuant to a sinking fund, amortization or analogous provision) permitted
by the terms of any series of Securities shall be made (except as otherwise specified pursuant to Section 3.01 for Securities of
any series) in accordance with this Article; provided, however, that if any such terms of a series of Securities shall conflict with any
provision of this Article, the terms of such series shall govern.
Section 4.02 Selection
of Securities to be Redeemed.
(a) If
the Company shall at any time elect to redeem all or any portion of the Securities of a series then Outstanding, it shall at least 35
days prior to the Redemption Date fixed by the Company (unless a shorter period shall be satisfactory to the Trustee) notify the Trustee
of such Redemption Date and of the principal amount of Securities to be redeemed, and, if less than all of the Securities of such series
are to be redeemed, thereupon the Trustee shall select the particular Securities of such series to be redeemed from the Outstanding Securities
of such series not theretofore called for redemption by lot or in such other manner as the Trustee shall deem appropriate, subject to
the Applicable Procedures, and which may provide for the selection for redemption of a portion of the principal amount of any Security
of such series; provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for such Security. In any case where more than one Security of such series
is registered in the same name, the Trustee may treat the aggregate principal amount so registered as if it were represented by one Security
of such series. The Trustee shall, as soon as practicable, notify the Company in writing of the Securities and portions of Securities
so selected.
(b) For
all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security that has
been or is to be redeemed. If the Company shall so direct, Securities registered in the name of the Company or any Affiliate or any Subsidiary
thereof shall not be included in the Securities selected for redemption.
Section 4.03 Notice
of Redemption.
(a) Notice
of redemption shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company,
not less than 30 nor more than 60 days prior to the Redemption Date (unless a shorter period shall be satisfactory to the Trustee), to
the Holders of Securities of any series to be redeemed in whole or in part pursuant to this Article, in the manner provided in Section 15.04.
Any notice so given shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. Failure to
give such notice, or any defect in such notice to the Holder of any Security of a series designated for redemption, in whole or in part,
shall not affect the sufficiency of any notice of redemption with respect to the Holder of any other Security of such series.
(b) All
notices of redemption shall identify the Securities to be redeemed (including CUSIP, ISIN or other similar numbers, if available)
and shall state:
(i) such
election by the Company to redeem Securities of such series pursuant to provisions contained in this Indenture or the terms of the Securities
of such series or a supplemental indenture establishing such series, if such be the case;
(ii) the
Redemption Date;
(iii) the
Redemption Price or, if the Redemption Price is not then known, the manner of calculation thereof;
(iv) if
less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the Securities of such series to be redeemed;
(v) that
on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed, and that, if applicable,
interest thereon shall cease to accrue on and after said date;
(vi) the
Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price;
(vii) that
the redemption is for a sinking fund, if such is the case; and
(viii) that
no representation is made as to the correctness or accuracy of the CUSIP, ISIN or other similar numbers, if any, listed in such notice
or printed on the Securities.
(c) If
the Redemption Price is not known at the time such notice is to be given, the actual Redemption Price, calculated as described in the
terms of the Securities, will be set forth in a Company Order delivered to the Trustee no later than two Business Days prior to the Redemption
Date.
Section 4.04 Deposit
of Redemption Price. On or prior to [ ], New York City time, on the Redemption Date for any Securities, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided
in Section 6.03) an amount of money in the Currency in which such Securities are denominated (except as provided pursuant to Section 3.01)
sufficient to pay the Redemption Price of such Securities or any portions thereof that are to be redeemed on that date.
Section 4.05 Securities
Payable on Redemption Date. Notice of redemption having been given as aforesaid, any Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price and from and after such date (unless the Company shall Default in the payment of
the Redemption Price) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the Redemption Price; provided, however, that (unless otherwise provided pursuant
to Section 3.01) installments of interest that have a Stated Maturity on or prior to the Redemption Date for such Securities shall
be payable according to the terms of such Securities and the provisions of Section 3.08.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal thereof and premium, if any, thereon shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
Section 4.06 Securities
Redeemed in Part. Any Security that is to be redeemed only in part shall be surrendered at the Corporate Trust Office or such other
office or agency of the Company as is specified pursuant to Section 3.01 with, if the Company, the Registrar or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed
by the Holder thereof or his, her or its attorney duly authorized in writing, and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of like tenor and
form, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered; except that if a Global Security is so redeemed, the balance of such Global Security
shall be reduced in accordance with the Applicable Procedures. In the case of a Security providing appropriate space for such notation,
at the option of the Holder thereof, the Trustee, in lieu of delivering a new Security or Securities as aforesaid, may make a notation
on such Security of the payment of the redeemed portion thereof.
Article V
SINKING
FUNDS
Section 5.01 Applicability
of Sinking Fund.
(a) Redemption
of Securities permitted or required pursuant to a sinking fund for the retirement of Securities of a series by the terms of such series
of Securities shall be made in accordance with such terms of such series of Securities and this Article, except as otherwise specified
pursuant to Section 3.01 for Securities of such series, provided, however, that if any such terms of a series of Securities shall
conflict with any provision of this Article, the terms of such series shall govern.
(b) The
minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “Mandatory
Sinking Fund Payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “Optional Sinking Fund Payment.” If provided for by the terms of Securities of any series, the cash
amount of any Mandatory Sinking Fund Payment may be subject to reduction as provided in Section 5.02.
Section 5.02 Mandatory
Sinking Fund Obligation. The Company may, at its option, satisfy any Mandatory Sinking Fund Payment obligation, in whole or in part,
with respect to a particular series of Securities by (a) delivering to the Trustee Securities of such series in transferable form
theretofore purchased or otherwise acquired by the Company or redeemed at the election of the Company pursuant to Section 4.03 or
(b) receiving credit for Securities of such series (not previously so credited) acquired by the Company and theretofore delivered
to the Trustee. The Trustee shall credit such Mandatory Sinking Fund Payment obligation with an amount equal to the Redemption Price specified
in such Securities for redemption through operation of the sinking fund and the amount of such Mandatory Sinking Fund Payment shall be
reduced accordingly. If the Company shall elect to so satisfy any Mandatory Sinking Fund Payment obligation, it shall deliver to the Trustee
not less than 45 days prior to the relevant sinking fund payment date an Officer’s Certificate, which shall designate the Securities
(and portions thereof, if any) so delivered or credited and which shall be accompanied by such Securities (to the extent not theretofore
delivered) in transferable form. In case of the failure of the Company, at or before the time so required, to give such notice and deliver
such Securities the Mandatory Sinking Fund Payment obligation shall be paid entirely in moneys.
Section 5.03 Optional
Redemption at Sinking Fund Redemption Price. In addition to the sinking fund requirements of Section 5.02, to the extent, if
any, provided for by the terms of a particular series of Securities, the Company may, at its option, make an Optional Sinking Fund Payment
with respect to such Securities. Unless otherwise provided by such terms, (a) to the extent that the right of the Company to make
such Optional Sinking Fund Payment shall not be exercised in any year, it shall not be cumulative or carried forward to any subsequent
year, and (b) such optional payment shall operate to reduce the amount of any Mandatory Sinking Fund Payment obligation as to Securities
of the same series. If the Company intends to exercise its right to make such optional payment in any year it shall deliver to the Trustee
not less than 45 days (or such shorter period as shall be satisfactory to the Trustee) prior to the relevant sinking fund payment date
an Officer’s Certificate stating that the Company will exercise such optional right, and specifying the amount which the Company
will pay on or before the next succeeding sinking fund payment date. Such Officer’s Certificate shall also state that no Event of
Default has occurred and is continuing.
Section 5.04 Application
of Sinking Fund Payment.
(a) If
the sinking fund payment or payments made in funds pursuant to either Section 5.02 or 5.03 with respect to a particular series of
Securities plus any unused balance of any preceding sinking fund payments made in funds with respect to such series shall exceed $50,000
(or a lesser sum if the Company shall so request, or such equivalent sum for Securities denominated other than in U.S. Dollars), it shall
be applied by the Trustee on the sinking fund payment date next following the date of such payment, unless the date of such payment shall
be a sinking fund payment date, in which case such payment shall be applied on such sinking fund payment date, to the redemption of Securities
of such series at the redemption price specified pursuant to Section 4.03(b). The Trustee shall select, in the manner provided in
Section 4.02, for redemption on such sinking fund payment date, a sufficient principal amount of Securities of such series to absorb
said funds, as nearly as may be, and shall, at the expense and in the name of the Company, thereupon cause notice of redemption of the
Securities to be given in substantially the manner provided in Section 4.03(a) for the redemption of Securities in part at the
option of the Company, except that the notice of redemption shall also state that the Securities are being redeemed for the sinking fund.
Any sinking fund moneys not so applied by the Trustee to the redemption of Securities of such series shall be added to the next sinking
fund payment received in funds by the Trustee and, together with such payment, shall be applied in accordance with the provisions of this
Section 5.04. Any and all sinking fund moneys held by the Trustee on the last sinking fund payment date with respect to Securities
of such series, and not held for the payment or redemption of particular Securities of such series, shall be applied by the Trustee to
the payment of the principal of the Securities of such series at Maturity.
(b) On
or prior to each sinking fund payment date, the Company shall pay to the Trustee a sum equal to all interest accrued to but not including
the date fixed for redemption on Securities to be redeemed on such sinking fund payment date pursuant to this Section 5.04.
(c) The
Trustee shall not redeem any Securities of a series with sinking fund moneys or give any notice of redemption of Securities of such series
by operation of the sinking fund during the continuance of a Default in payment of interest on any Securities of such series or of any
Event of Default (other than an Event of Default occurring as a consequence of this paragraph) of which a Responsible Officer of the Trustee
has actual knowledge, except that if the notice of redemption of any Securities of such series shall theretofore have been given in accordance
with the provisions hereof, the Trustee shall redeem such Securities if funds sufficient for that purpose shall be deposited with the
Trustee in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund at the time any such Default
or Event of Default shall occur and any moneys thereafter paid into the sinking fund shall, during the continuance of such Default or
Event of Default, be held as security for the payment of all the Securities of such series; provided, however, that in case such Default
or Event of Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund
payment date on which such moneys are required to be applied pursuant to the provisions of this Section 5.04.
Article VI
PARTICULAR
COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
Section 6.01 Payments
of Securities. The Company will duly and punctually pay the principal of and premium, if any, on each series of Securities, and the
interest which shall have accrued thereon, at the dates and place and in the manner provided in the Securities and in this Indenture.
Section 6.02 Paying
Agent.
(a) The
Company will maintain in each Place of Payment for any series of Securities, if any, an office or agency where Securities may be presented
or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this Indenture may be served (the “Paying Agent”). The
Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as Paying Agent to receive all presentations, surrenders, notices and demands.
(b) The
Company may also from time to time designate different or additional offices or agencies where the Securities of any series may be presented
or surrendered for any or all such purposes (in or outside of such Place of Payment), and may from time to time rescind any such designations;
provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations described in the
preceding paragraph. The Company will give prompt written notice to the Trustee of any such additional designation or rescission of designation
and of any change in the location of any such different or additional office or agency. The Company shall enter into an appropriate agency
agreement with any Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate
to such agent. The Company shall notify the Trustee of the name and address of each such agent. The Company or any Affiliate thereof may
act as Paying Agent.
Section 6.03 To
Hold Payment in Trust.
(a) If
the Company or an Affiliate thereof shall at any time act as Paying Agent with respect to any series of Securities, then, on or before
the date on which the principal of and premium, if any, or interest on any of the Securities of that series by their terms or as a result
of the calling thereof for redemption shall become payable, the Company or such Affiliate will segregate and hold in trust for the benefit
of the Holders of such Securities or the Trustee a sum sufficient to pay such principal and premium, if any, or interest which shall have
so become payable until such sums shall be paid to such Holders or otherwise disposed of as herein provided, and will notify the Trustee
of its action or failure to act in that regard.
Upon any proceeding under any federal bankruptcy laws with respect
to the Company or any Affiliate thereof, if the Company or such Affiliate is then acting as Paying Agent, the Trustee shall replace the
Company or such Affiliate as Paying Agent.
(b) If
the Company shall appoint, and at the time have, a Paying Agent for the payment of the principal of and premium, if any, or interest on
any series of Securities, then prior to 11:00 a.m., New York City time, on the date on which the principal of and premium, if any, or
interest on any of the Securities of that series shall become payable as aforesaid, whether by their terms or as a result of the calling
thereof for redemption, the Company will deposit with such Paying Agent a sum sufficient to pay such principal and premium, if any, or
interest, such sum to be held in trust for the benefit of the Holders of such Securities or the Trustee, and (unless such Paying Agent
is the Trustee), the Company or any other obligor of such Securities will promptly notify the Trustee of its payment or failure to make
such payment.
(c) If
the Paying Agent shall be other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 6.03, that such Paying Agent shall:
(i) hold
all moneys held by it for the payment of the principal of and premium, if any, or interest on the Securities of that series in trust for
the benefit of the Holders of such Securities until such sums shall be paid to such Holders or otherwise disposed of as herein provided;
(ii) give
to the Trustee notice of any Default by the Company or any other obligor upon the Securities of that series in the making of any payment
of the principal of and premium, if any, or interest on the Securities of that series; and
(iii) at
any time during the continuance of any such Default, upon the written request of the Trustee, pay to the Trustee all sums so held in trust
by such Paying Agent.
(d) Anything
in this Section 6.03 to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a release, satisfaction
or discharge of this Indenture or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or
by any Paying Agent other than the Trustee as required by this Section 6.03, such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or such Paying Agent.
(e) Any
money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of and premium,
if any, or interest on any Security of any series and remaining unclaimed for two years after such principal and premium, if any, or interest
has become due and payable shall be paid to the Company upon Company Order along with any interest that has accumulated thereon as a result
of such money being invested at the direction of the Company, or (if then held by the Company) shall be discharged from such trust, and
the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment of such amounts without
interest thereon, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent before being required to make any
such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 6.04 Merger,
Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities:
(a) The
Company will not consolidate with or merge into any other Person or sell, convey, transfer or lease all or substantially all its assets
to any other Person, unless (i) the Person formed by such consolidation or into which the Company is merged or to which such sale,
conveyance, transfer or lease is made shall be a Person organized and existing under the laws of the United States of America, any state
thereof or the District of Columbia and such Person expressly assumes, by indenture supplemental hereto, executed and delivered by such
Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of
the principal of and interest and premium, if any, on all the Securities, according to their tenor, and the due and punctual performance
and observance of all other obligations to the Holders and the Trustee under this Indenture or under the Securities to be performed or
observed by the Company; and (ii) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease,
no Default shall have occurred and be continuing. Clause (ii) of the immediately preceding sentence shall not apply to (A) any
sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (B) any merger of the
Company into any Subsidiary of the Company or (C) any merger of the Company into an Affiliate of the Company for the purpose of the
Company reincorporating or reorganizing.
(b) Upon
any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all
or substantially all of the assets of the Company to any other Person, in accordance with this Section 6.04, the Person formed by
such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved
of and discharged from all obligations and covenants under this Indenture and the Securities, and from time to time such Person may exercise
each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding
by any provision of this Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done
with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder.
In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore
have become such in the manner described in this Section 6.04) shall be relieved of and discharged from all obligations and covenants
under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Section 6.05 Compliance
Certificate. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, the Company
shall furnish to the Trustee annually, within 120 days after the end of each fiscal year, a brief certificate from the principal executive
officer, principal financial officer, principal accounting officer, treasurer or secretary as to his or her knowledge of the Company’s
compliance with all conditions and covenants under this Indenture (which compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture) and, in the event of any Default, specifying each such Default and the nature
and status thereof of which such person may have knowledge. Such certificates need not comply with Section 15.01 of this Indenture.
Section 6.06 Conditional
Waiver by Holders of Securities. Anything in this Indenture to the contrary notwithstanding, the Company may fail or omit in any particular
instance to comply with a covenant or condition set forth herein with respect to any series of Securities if the Company shall have obtained
and filed with the Trustee, prior to the time of such failure or omission, evidence (as provided in Article VIII) of the consent
of the Holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding, either waiving such
compliance in such instance or generally waiving compliance with such covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived, or impair any right consequent thereon and, until such waiver shall
have become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
Section 6.07 Statement
by Officers as to Default. The Company shall deliver to the Trustee within 30 days after the Company becomes aware of the occurrence
of any event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default under clause (d) of
Section 7.01, an Officer’s Certificate setting forth the details of such Event of Default or Default and the action which the
Company proposes to take with respect thereto.
Article VII
REMEDIES
OF TRUSTEE AND SECURITYHOLDERS
Section 7.01 Events
of Default. Except where otherwise indicated by the context or where the term is otherwise defined for a specific purpose, the term
“Event of Default” as used in this Indenture with respect to Securities of any series shall mean one of the following described
events unless it is either inapplicable to a particular series or it is specifically deleted or modified in the manner contemplated in
Section 3.01:
(a) the
failure of the Company to pay any installment of interest on any Security of such series when and as the same shall become payable, which
failure shall have continued unremedied for a period of 30 days (unless the entire amount of the payment is deposited by the Company with
the Trustee or with a Paying Agent prior to the expiration of such 30 day period);
(b) the
failure of the Company to pay the principal of (and premium, if any, on) any Security of such series, when and as the same shall become
payable, whether at Maturity as therein expressed, by call for redemption (otherwise than pursuant to a sinking fund), by declaration
as authorized by this Indenture or otherwise;
(c) the
failure of the Company to pay a sinking fund installment, if any, when and as the same shall become payable by the terms of a Security
of such series, which failure shall have continued unremedied for a period of 30 days;
(d) the
failure of the Company, subject to the provisions of Section 6.06, to perform any covenants or agreements contained in this Indenture
(including any indenture supplemental hereto pursuant to which the Securities of such series were issued as contemplated by Section 3.01)
(other than a covenant or agreement which has been expressly included in this Indenture solely for the benefit of a series of Securities
other than that series and other than a covenant or agreement a default in the performance of which is elsewhere in this Section 7.01
specifically addressed), which failure shall not have been remedied, and without provision deemed to be adequate for the remedying thereof
having been made, for a period of 90 days after written notice shall have been given to the Company by the Trustee or shall have been
given to the Company and the Trustee by Holders of 25% or more in aggregate principal amount of the Securities of such series then Outstanding,
specifying such failure, requiring the Company to remedy the same and stating that such notice is a “Notice of Default” hereunder;
(e) the
entry by a court having jurisdiction in the premises of a decree or order for relief in respect of the Company in an involuntary case
under the United States federal bankruptcy laws, as now or hereafter constituted, or any other applicable United States federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Company or of substantially all the property of the Company or ordering the winding-up or
liquidation of its affairs, which decree or order shall have remained unstayed and in effect for a period of 90 consecutive days;
(f) the
commencement by the Company of a voluntary case under the United States federal bankruptcy laws, as now or hereafter constituted, or any
other applicable United States federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent
by the Company to the entry of an order for relief in an involuntary case under any such law, or the consent by the Company to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or similar official) of the Company or
of substantially all the property of the Company or the making by it of an assignment for the benefit of creditors or the admission by
it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance
of any such action; or
(g) the
occurrence of any other Event of Default with respect to Securities of such series as provided in Section 3.01; provided, however,
that no event described in clause (d) or (other than with respect to a payment default) (g) above shall constitute an Event
of Default hereunder until a Responsible Officer of the Trustee has actual knowledge thereof or until a written notice of any such event
is received by the Trustee at the Corporate Trust Office, and such notice refers to the facts underlying such event, the Securities generally,
the Company and this Indenture.
Notwithstanding the foregoing provisions of this
Section 7.01, if the principal or any premium or interest on any Security is payable in a Foreign Currency and such Foreign Currency
is not available to the Company for making payment thereof due to the imposition of exchange controls or other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its obligations to Holders of the Securities by making such payment in
U.S. Dollars in an amount equal to the equivalent in U.S. Dollars of the amount payable in such Foreign Currency, as determined by the
Company’s agent in accordance with Section 3.11(c) hereof by reference to the noon buying rate in The City of New York
for cable transfers for such Foreign Currency (“Exchange Rate”), as such Exchange Rate is reported or otherwise made available
by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on the basis of the most
recently available Exchange Rate. Notwithstanding the foregoing provisions of this Section 7.01, any payment made under such circumstances
in U.S. Dollars where the required payment is in a Foreign Currency will not constitute an Event of Default under this Indenture.
Section 7.02 Acceleration;
Rescission and Annulment.
(a) Except
as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, if any one or more of the above-described
Events of Default (other than an Event of Default specified in Section 7.01(e) or 7.01(f)) shall happen with respect to Securities
of any series at the time Outstanding, then, and in each and every such case, during the continuance of any such Event of Default, the
Trustee or the Holders of 25% or more in principal amount of the Securities of such series then Outstanding may declare the principal
(or, if the Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified
in the terms of that series) of and all accrued but unpaid interest on all the Securities of such series then Outstanding to be due and
payable immediately by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) and accrued but unpaid interest shall become immediately due and payable. If an Event of Default
specified in Section 7.01(e) or 7.01(f) occurs and is continuing, then, in every such case, the principal amount (or, if
the Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the
terms of that series) of and all accrued but unpaid interest on all of the Securities of that series then Outstanding shall automatically,
and without any declaration or any other action on the part of the Trustee or any Holder, become due and payable immediately. Upon payment
of such amounts in the Currency in which such Securities are denominated (subject to Section 7.01 and except as otherwise provided
pursuant to Section 3.01), all obligations of the Company in respect of the payment of principal of and interest on the Securities
of such series shall terminate.
(b) The
provisions of Section 7.02(a) are subject to the condition that, at any time after the principal of all the Securities of such
series, to which any one or more of the above-described Events of Default is applicable, shall have been so declared to be due and payable,
and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article,
the Event of Default giving rise to such declaration of acceleration shall, without further act, be deemed to have been waived, and such
declaration and its consequences shall, without further act, be deemed to have been rescinded and annulled, if:
(i) the
Company has paid or deposited with the Trustee or Paying Agent a sum in the Currency in which such Securities are denominated (subject
to Section 7.01 and except as otherwise provided pursuant to Section 3.01) sufficient to pay:
(A) all
amounts owing the Trustee and any predecessor trustee hereunder under Section 10.01(a) (provided, however, that all sums payable
under this clause (A) shall be paid in U.S. Dollars);
(B) all
arrears of interest, if any, upon all the Securities of such series (with interest, to the extent that interest thereon shall be legally
enforceable, on any overdue installment of interest at the rate borne by such Securities at the rate or rates prescribed therefor in such
Securities); and
(C) the
principal of and premium, if any, on any Securities of such series that have become due otherwise than by such declaration of acceleration
and interest thereon; and
(ii) every
other Default and Event of Default with respect to Securities of that series, other than the non-payment of the principal of Securities
of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 7.06.
(c) No
such rescission shall affect any subsequent Default or impair any right consequent thereon.
(d) For
all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to
be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section 7.03 Other
Remedies. If the Company shall fail for a period of 30 days to pay any installment of interest on the Securities of any series or
shall fail to pay the principal of and premium, if any, on any of the Securities of such series when and as the same shall become due
and payable, whether at Maturity, or by call for redemption (other than pursuant to the sinking fund), by declaration as authorized by
this Indenture, or otherwise, or shall fail for a period of 30 days to make any required sinking fund payment as to a series of Securities,
then, except as otherwise provided as contemplated by Section 3.01 with respect to Securities of such series, upon demand of the
Trustee, the Company will pay to the Paying Agent for the benefit of the Holders of Securities of such series then Outstanding the whole
amount which then shall have become due and payable on all the Securities of such series, with interest on the overdue principal and premium,
if any, and (so far as the same may be legally enforceable) on the overdue installments of interest at the rate borne by the Securities
of such series, and all amounts owing the Trustee and any predecessor trustee hereunder under Section 10.01(a).
In case