SHAK-20181226_Exhibit 10.9.8








Exhibit 10.9.8




RESTRICTED STOCK UNIT AWARD AGREEMENT
PURSUANT TO THE 
SHAKE SHACK INC. 
2015 INCENTIVE AWARD PLAN


THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (this “Agreement”), is made as of ________________ (the “Grant Date”), by and between Shake Shack Inc., a Delaware corporation (the “Company”), and [Name of Participant] (“Participant”).   Capitalized terms in this Agreement that are not defined shall have the meaning set forth in the Shake Shack Inc. 2015 Incentive Award Plan, as amended from time to time (the “Plan”).


WHEREAS, with respect to awards under the Plan to Non-Employee Directors, the Plan is administered by the Board of Directors of the Company (“Board”), which acts as the “Committee” within the meaning of the Plan for awards to Non-Employee Directors; 


WHEREAS, Article 9 of the Plan authorizes the Committee to grant Restricted Stock Units to Eligible Individuals;
WHEREAS, the Committee wishes to grant awards of Restricted Stock Units to selected Eligible Individuals in accordance with the Plan; 
WHEREAS, the Committee wishes to authorize the issuance of such Restricted Stock Units, which shall vest based on Participant’s continued service over a certain time period; and 
WHEREAS, the Committee has designated Participant as an Eligible Individual eligible to receive an award of Restricted Stock Units under the Plan pursuant to the terms and conditions of the Plan and this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.   Award Grant.  Subject to the restrictions and other conditions set forth in this Plan and this Agreement, the Committee, on the Grant Date, authorized this grant of [______] Restricted Stock Units to the Participant (the “Award”).


2.   Vesting.  This Restricted Stock Units subject to this Award shall fully vest on the first anniversary of the Grant Date (the “Vesting Date”); provided the Participant has not had a Termination of Service prior to the Vesting Date.  There shall be no proportionate or partial vesting in the periods prior to the Vesting Date.  If all or a portion of the Restricted Stock Units is not vested on the date of Participant's Termination of Service, the unvested portion of the Restricted Stock Units shall be automatically forfeited in its entirety as of the date of such Termination of Service. In the event of a Change in Control, all unvested Restricted Stock Units shall vest and shall be paid in accordance with Section 3 below.   


3.   Payment.  Subject to the terms of this Agreement and the Plan, Participant shall receive one share of Common Stock with respect to each vested Restricted Stock Unit within thirty (30) days of the Vesting Date.  


4.   Dividend Equivalents.  Cash dividends on shares of Common Stock shall be credited to a dividend book entry account on behalf of Participant with respect to each Restricted Stock Unit awarded to Participant, provided, that such cash dividends shall not be deemed to be reinvested in shares of Common Stock and will be held uninvested and without interest.  Participant’s right to receive any such cash dividends shall vest if and when the related Restricted Stock Unit vests, and such cash dividends shall be paid in cash to Participant if and when the related Restricted Stock Unit is paid to Participant.  Stock dividends on shares of Common Stock shall be credited to a dividend book entry account on behalf of Participant with respect to each Restricted Stock Unit awarded to Participant.  Participant’s right to receive any such stock dividends shall vest if and when the related Restricted Stock Unit vests, and such stock dividends shall be paid in stock to Participant if and when the related Restricted Stock Unit is paid to Participant.


5.   Rights as a Stockholder.  Participant shall have no rights as a stockholder with respect to Restricted Stock Units or shares of Common Stock subject to the Restricted Stock Units unless and until Participant has become the holder of record of such shares of Common Stock, and no adjustments shall be made for dividends in cash or other property, distributions or other rights in respect of any such shares, except as otherwise specifically provided for in this Agreement or the Plan.


6.   Restrictions on Transfer.  The Restricted Stock Units, and any part thereof, may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution.













7.   Plan Provisions Control.  This Agreement is subject to all the terms, conditions and provisions of the Plan, including any amendments thereto, and to such rules, regulations and interpretations relating to the Plan as may be adopted by the Committee or the Company, and as may be in effect from time to time.  The Plan is incorporated herein by reference.  If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and this Agreement shall be deemed to be modified accordingly.  This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any prior agreements between the Company and Participant with respect to the subject matter hereof.  


8.   Legend.  The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing shares of Common Stock issued pursuant to this Agreement.  Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares of Common Stock acquired pursuant to this Agreement in the possession of Participant in order to carry out the provisions of this Section 8.


9.   Not a Contract of Employment.  Nothing in this Agreement or in the Plan shall confer upon Participant any right to continue to serve as an employee or other service provider of the Company or any Subsidiary or shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which rights are hereby expressly reserved, to discharge or terminate the services of Participant at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between the Company or a Subsidiary and Participant.


10.   Transfer of Personal Data.  Participant authorizes, agrees and unambiguously consents to the transmission by the Company of any personal data information related to the Units, for legitimate business purposes (including, without limitation, the administration of the Plan) out of Participant’s home country and including to countries with less data protection than the data protection provided by Participant’s home country.  This authorization/consent is freely given by Participant.


11.   Withholding Taxes.  The Company shall, with respect to any taxable event concerning Participant as a result of the Plan or this Agreement, deduct any Federal, state, local or foreign taxes required by law to be withheld by reducing the number of shares of Common Stock otherwise deliverable.  Any fraction of a share of Common Stock required to satisfy such tax obligations shall also be reduced. 


12.   Section 409A of the Code.  Although the Company does not guarantee the tax treatment of any payments under this Agreement, the intent of the parties is that payments under this Agreement be exempt from, or comply with, Section 409A of the Code and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted in accordance with the foregoing.  In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on Participant as a result of Section 409A of the Code or any damages for failing to comply with Section 409A of the Code.  This Award is intended to be subject to the terms and conditions of the Plan with respect to Section 409A of the Code.  Whenever a payment under this Agreement may be paid within a specified period, the actual date of payment within the specified period shall be within the Company’s sole discretion.


13.   Administration.  The Administrator shall have the power to interpret the Plan, this Agreement and to adopt such rules for the administration, interpretation and application of the Plan, this Agreement as are consistent therewith and to interpret, amend or revoke any such rules.  All actions taken and all interpretations and determinations made by the Administrator will be final and binding upon Participant, the Company and all other interested persons.  To the extent allowable pursuant to Applicable Law, no member of the Committee or the Board will be personally liable for any action, determination or interpretation made with respect to the Plan or this Agreement.


14.   Adjustments.  The Administrator may accelerate the vesting of all or a portion of the Restricted Stock Units in such circumstances as it, in its sole discretion, may determine.  In addition, upon the occurrence of certain events relating to the Common Stock contemplated by Section 14.2 of the Plan (including, without limitation, an extraordinary cash dividend on such Common Stock), the Administrator may make such adjustments as the Administrator deems appropriate in the number of shares of Common Stock subject to the Units and the kind of securities that may be issued upon settlement.   Participant acknowledges that the Units are subject to adjustment, modification and termination in certain events as provided in this Agreement and the Plan, including Section 14.2 of the Plan.


15.   Successors and Assigns.  The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the successors and assigns of the Company.  Subject to the restrictions on transfer set forth in Section 6 and the Plan, this Agreement shall be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.


16.   Limitation on Participant’s Rights.  Participation in the Plan confers no rights or interests other than as herein provided.  This Agreement creates only a contractual obligation on the part of the Company as to amounts payable and shall not be construed as creating a trust.  Neither the Plan nor any underlying program, in and of itself, has any assets.  Participant shall have only the rights of a general unsecured creditor of the Company with respect to amounts credited and benefits payable, if any, with respect to the Restricted Stock Units, and rights no greater than the right to receive the Common Stock as a general unsecured creditor.













17.   Counterparts.  This Agreement may be executed in one or more counterparts, including by way of any electronic signature, subject to Applicable Law, each of which shall be deemed an original and all of which together shall constitute one instrument.


18.   Entire Agreement.  The Plan and this Agreement constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof.


19.   Agreement Severable.  In the event that any provision of this Agreement is held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Agreement.


20.   Notices. Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of the Secretary of the Company at the Company’s principal office, and any notice to be given to Participant shall be addressed to Participant at Participant’s last address reflected on the Company’s records.  By a notice given pursuant to this Section 20, either party may hereafter designate a different address for notices to be given to that party.  Any notice shall be deemed duly given when sent via email or when sent by certified mail (return receipt requested) and deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States Postal Service.


21.   Amendment, Suspension and Termination.  To the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Administrator or the Board, provided, that, except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall adversely affect the Restricted Stock Units in any material way without the prior written consent of Participant.


22.   Limitations Applicable to Section 16 Persons.  Notwithstanding any other provision of the Plan or this Agreement, if Participant is subject to Section 16 of the Exchange Act, the Plan, this Agreement and the Restricted Stock Units shall be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule.  To the extent permitted by Applicable Law, this Agreement shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.


23.   Titles.  Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.


24.   Governing Law.   The laws of the State of Delaware shall govern the interpretation, validity, administration, enforcement and performance of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.


25.   Conformity to Securities Laws.  Participant acknowledges that the Plan and this Agreement are intended to conform to the extent necessary with all Applicable Laws, including, without limitation, the provisions of the Securities Act and the Exchange Act, and any and all regulations and rules promulgated thereunder by the Securities and Exchange Commission and state securities laws and regulations.  Notwithstanding anything herein to the contrary, the Plan shall be administered, and the Units are awarded and may be settled, only in such a manner as to conform to Applicable Law.  To the extent permitted by Applicable Law, the Plan and this Agreement shall be deemed amended to the extent necessary to conform to Applicable Law.




NO ACQUIRED RIGHTS.
PARTICIPANT ACKNOWLEDGES AND AGREES THAT: (A) THE COMPANY MAY TERMINATE OR AMEND THE PLAN AT ANY TIME; (B) THE AWARD OF RESTRICTED STOCK UNITS MADE UNDER THIS AGREEMENT IS COMPLETELY INDEPENDENT OF ANY OTHER AWARD OR GRANT AND IS MADE AT THE SOLE DISCRETION OF THE COMPANY; AND (C) NO PAST GRANTS OR AWARDS (INCLUDING, WITHOUT LIMITATION, THE RESTRICTED STOCK UNITS AWARDED HEREUNDER) GIVE PARTICIPANT ANY RIGHT TO ANY GRANTS OR AWARDS IN THE FUTURE WHATSOEVER.











By Participant’s signature below, Participant agrees to be bound by the terms and conditions of the Plan, this Agreement, and all applicable laws and regulations.  This Agreement may be electronically accepted by Participant.




	
		
	 
	SHAKE SHACK INC.

	 
	 

	 
	 

	 
	By:   _____________________________________________

	 
	Randy Garutti

	 
	Chief Executive Officer

	 
	 

	PARTICIPANT
	 

	 
	 

	 
	 

	By:   _____________________________________________
	 

	Name: