UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of report (Date of earliest event reported): February 15, 2018

 

 

THE CHEESECAKE FACTORY INCORPORATED

(Exact Name of Registrant as Specified in Charter)

 

 

Delaware

 

0-20574

 

51-0340466

(State or Other Jurisdiction
of Incorporation)

 

(Commission
File Number)

 

(I.R.S. Employer
Identification No.)

 

26901 Malibu Hills Road

Calabasas Hills, California 91301

(Address of Principal Executive Offices)

 

Registrant’s Telephone Number, Including Area Code (818) 871-3000

 

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

o        Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o        Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o        Pre-commencement communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o        Pre-commencement communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

 

Emerging growth company o

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o

 



 

ITEM 2.02       RESULTS OF OPERATIONS AND FINANCIAL CONDITION.

 

The following information is intended to be furnished under Item 2.02 of Form 8-K, “Results of Operations and Financial Condition.” This information shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, whether made before or after the date of this report, regardless of any general incorporation language in the filing.

 

In a press release dated February 21, 2018, a copy of which is furnished as Exhibit 99.1 to this report, The Cheesecake Factory Incorporated (the “Company”) reported financial results for the fourth quarter of fiscal 2017, which ended on January 2, 2018.  Total revenues were $571.8 million in the fourth quarter of fiscal 2017 as compared to $603.1 million in the fourth quarter of fiscal 2016. The fourth quarter of fiscal 2017 included 13 weeks compared to 14 weeks in the fourth quarter of fiscal 2016. Net income and diluted net income per share were $57.7 million and $1.24, respectively, in the fourth quarter of fiscal 2017.

 

The Company recorded a $38.5 million benefit to the income tax provision from a revaluation of the Company’s deferred tax assets and liabilities related to recently enacted tax reform. The Company also recorded a pre-tax, non-cash impairment charge of $9.1 million related to one The Cheesecake Factory restaurant and one Grand Lux Cafe. Excluding these items, net income and diluted net income per share on a non-GAAP basis were $24.7 million and $0.53, respectively, in the fourth quarter of fiscal 2017.

 

ITEM 5.02       DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS.

 

Departure of Executive Officer.

 

The Company announces that Max Byfuglin, President of The Cheesecake Factory Bakery, Inc. (the “Bakery”), a wholly owned subsidiary of the Company, will retire on a date to be determined in Spring, 2018.  Mr. Byfuglin started at a predecessor of the Company in 1982 and continued in various positions of increasing responsibility with the Company. He was appointed as President of the Bakery in 2006 and has continued to serve in that position since then, overseeing the growth of the Bakery to two manufacturing locations in the United States and worldwide distribution of the Company’s bakery products to not only the Company’s branded restaurants but also its restaurant licensees as well as third parties.  Mr. David Overton, the Company’s Chairman of the Board and Chief Executive Officer, will act as interim President of the Bakery until a successor is appointed.

 

Amendment to Employment Agreement with David Overton .

 

On February 15, 2018, the Board of Directors (the “Board”) of the Company approved a First Amendment to Employment Agreement (the “Employment Agreement”), between the Company and David Overton, the Company’s Chairman of the Board and Chief Executive Officer, effective April 1, 2018, which amendment extends the expiration date of the Employment Agreement by one year until April 1, 2019 and provides for additional one year extensions on each annual anniversary date thereafter, unless not less than 90 days prior to such anniversary date either Mr. Overton or the Company gives notice not to further extend the term, and otherwise provides that the Employment Agreement remains unmodified and in full force and effect.

 

The full text of the First Amendment to Employment Agreement is attached as Exhibit 99.2 to this report and is hereby incorporated by reference herein.

 



 

Form Notice of Grant and Stock Option Agreement and/or Restricted Share Agreement. On February 15, 2018, the Compensation Committee of the Board (the “Compensation Committee”) approved a form of a Notice of Grant and Stock Option Agreement and/or Restricted Share Agreement (the “Notice Agreement”) for all grants to be made under the 2010 Stock Incentive Plan, dated February 25, 2010, as last amended effective June 8, 2017 (the “2010 Stock Incentive Plan”) to executive officers of the Company. The full text of the Notice Agreement is attached as Exhibit 99.3 to this report and is hereby incorporated by reference herein.

 

Performance Incentive Plan Payments for Fiscal 2017.  On February 15, 2018, the Compensation Committee approved the payment of the following performance achievement awards (“Awards”) for fiscal 2017 to certain executive officers of the Company under the Company’s 2015 Amended and Restated Annual Performance Incentive Plan (the “Performance Incentive Plan”), as amended and restated on May 28, 2015:

 

Name

 

Amount of Award

 

Award as a
Percentage
of 2017
Effective
Salary(1)

 

David Overton

 

 

$273,625

 

27.50%

 

Chairman and Chief Executive Officer

 

 

 

 

 

 

 

 

 

 

 

David M. Gordon

 

 

$111,779

 

18.75%

 

President

 

 

 

 

 

 

 

 

 

 

 

Matthew E. Clark(2)

 

 

$56,349

 

16.25%

 

Executive Vice President and Chief Financial Officer

 

 

 

 

 

 

 

 

 

 

 

Debby R. Zurzolo

 

 

$80,388

 

16.25%

 

Executive Vice President, General Counsel and Secretary

 

 

 

 

 

 

 

 

 

 

 

 

Max S. Byfuglin

 

 

$141,700

 

32.50%

 

President, The Cheesecake Factory Bakery Incorporated

 

 

 

 

 

 

 

 

 

 

 

W. Douglas Benn

Former Executive Vice President and Chief Financial Officer(3)

 

$43,455

 

16.25% 

 

 

(1) Effective salary is the actual salary earned by the executive officer during fiscal year 2017 and reflects salary adjustments made prior to 90 days from the commencement of the 2017 fiscal year.

 

(2) Mr. Clark was promoted to Executive Vice President and Chief Financial Officer of the Company, effective July 7, 2017. The Award reflects the pro rata share based upon his pre-promotion salary and adjusted salary following his July 7, 2017 promotion.

 

(3) Mr. Benn resigned as Executive Vice President and Chief Financial Officer of the Company, effective July 7, 2017. The Award reflects a pro rata share based upon his effective salary during his tenure with the Company in 2017.

 



 

Performance Incentive Plan for Fiscal 2018 .  On February 15, 2018, the Compensation Committee also approved performance incentive targets and objectives for fiscal 2018 under the Performance Incentive Plan.  For fiscal 2018, except for the bakery division of the Company, 75% of each Award will be based upon achievement of a Company EBITDA objective and 25% of each Award will be based on achievement of both a Company threshold EBITDA objective and additional strategic objectives.  For the bakery division, 50% of each Award will be based on achievement of a Company EBITDA objective, 25% of each Award will be based on achievement of a bakery division EBITDA objective, and 25% of each Award will be based on achievement of both a bakery division EBITDA objective and additional strategic objectives related to the bakery operations.

 

Executive officers participating in the Performance Incentive Plan for fiscal 2018 will have an opportunity to earn an Award ranging from 0% to 175% of a performance incentive target range, calculated as a percentage of salary.  Payment of Awards is in the discretion of the Compensation Committee and is subject to the Company’s ability to accrue for such Awards and to the Compensation Committee’s determination that the specified strategic and operational objectives were satisfied.  The performance incentive target as a percentage of base salary payable to each executive officer (if achieved at 100% of the established goals), and the maximum Award as a percentage of base salary payable to each executive officer (if achieved at the maximum level exceeding 100% of the established goals), under the Performance Incentive Plan for fiscal 2018, are as follows:

 

Name

 

Performance
Incentive
Target
as a
Percentage of
Salary

 

Maximum Potential Award as
a Percentage of Salary

 

David M. Overton

 

110%

 

192.5

%

 

 

 

 

 

 

David M. Gordon

 

80%

 

140.0

%

 

 

 

 

 

 

Matthew E. Clark

 

70%

 

122.5

%

 

 

 

 

 

 

Debby R. Zurzolo

 

65%

 

113.8

%

 

 

 

 

 

 

Max S. Byfuglin

 

65%

 

113.8

%

 

Awards which may be made for fiscal 2018 will be calculated under the foregoing formulae based upon the executive officers’ base salary actually earned for fiscal 2018, and therefore will take into account any adjustments to base salary for fiscal 2018 made prior to 90 days from the commencement of the Company’s fiscal year. The maximum Award payable in any fiscal year to an executive officer under the Performance Incentive Plan is $2.5 million, and accordingly, the maximum potential Award that would be due and payable to any executive officer for fiscal 2018 would be the lesser of (i) $2.5 million or (ii) the product of the maximum potential Award percentage shown in the above table multiplied by the executive officer’s earned base salary for fiscal 2018.

 

There is no assurance that the Company will achieve the performance incentive targets and objectives established by the Compensation Committee in any fiscal year.

 



 

Annual Base Salary and Equity Awards for Executive Officers. On February 15, 2018 and on February 20, 2018, the Compensation Committee also approved the following annual base salaries for the executive officers of the Company whose names and titles are listed below. Such base salaries are effective February 28, 2018:

 

Name

 

Title

 

Amount

 

David Overton

 

Chairman of the Board and Chief Executive Officer

 

$995,000

 

David M. Gordon

 

President

 

$625,000

 

Matthew E. Clark

 

Executive Vice President and Chief Financial Officer

 

$490,000

 

Debby R. Zurzolo

 

Executive Vice President, General Counsel and Secretary

 

$512,000

 

Max S. Byfuglin

 

President, The Cheesecake Factory Bakery, Incorporated

 

$438,000

 

 

On February 15, 2018, the Compensation Committee also approved grants of options to purchase the Company’s common stock under the terms of the 2010 Stock Incentive Plan to each of the executive officers of the Company whose names are listed below. Because the Company previously announced on January 9, 2018 Ms. Zurzolo’s retirement as Executive Vice President, General Counsel and Secretary of the Company, effective April 12, 2018 and, concurrently herewith is announcing Mr. Byfuglin’s retirement, effective in Spring 2018 (exact date to be determined), the Compensation Committee did not consider granting awards under the 2010 Stock Incentive Plan for fiscal 2018 to either of these two executive officers:

 

Name

 

 

Number of
Shares
Subject to
Stock
Options

 

 

David Overton  

 

 

179,300

 

 

David M. Gordon                                             

 

 

41,500

 

 

Matthew E. Clark

 

 

38,000

 

 

 

These options to purchase the Company’s common stock were granted at an exercise price of $47.06 per share, which was the closing price per share for the Company’s common stock on February 15, 2018, the date of grant, and incrementally vest as to 20% of the shares on each of February 15, 2019, February 15, 2020, February 15, 2021, February 15, 2022, and February 15, 2023.

 

On February 15, 2018, the Compensation Committee also approved grants of restricted shares of the Company’s common stock subject to a performance condition to each of the executive officers of the Company whose names are listed below under the terms of the 2010 Stock Incentive Plan, as follows:

 

Name

 

Number of
Restricted Shares
Awarded at Target-
EPS Performance
Condition

 

David Overton

 

44,600

 

David M. Gordon

 

10,400

 

Matthew E. Clark

 

9,500

 

 



 

These restricted shares were granted subject to achievement of a performance condition (“EPS Performance Condition”), which EPS Performance Condition was approved by stockholders under the 2010 Stock Incentive Plan. Actual restricted shares vesting may be at a lower or higher amount, or none at all, dependent upon the level of achievement of the EPS Performance Condition, within a range between a threshold and a maximum number of shares, as described below. Such shares then would be subject to time based vesting at the rate of 60% of the shares on February 15, 2021 and 20% of the shares on each of February 15, 2022 and February 15, 2023.

 

The EPS Performance Condition provides that the vesting of this award is subject to the Company achieving a cumulative fully diluted EPS growth over fiscal years 2018, 2019, and 2020 of at least a specified dollar amount, with the formula providing a threshold, target and maximum cumulative fully diluted EPS dollar amount for purposes of determining the number of shares eligible to vest. If at least 88% and up to 113% (or more) of the EPS Performance Condition is achieved, a number of shares shall be eligible to vest, the exact number of which will be determined by multiplying a predetermined payout percentage (between 60% to 150%, based upon the level of achievement of the EPS Performance Condition), by the number of shares granted at the Target amount shown above.

 

ITEM 8.01       OTHER EVENTS.

 

Dividend Declaration. On February 15, 2018, the Board declared a quarterly cash dividend of $0.29 per share which will be paid on March 20, 2018 to the stockholders of record of each share of the Company’s common stock at the close of business on February 28, 2018. Future dividends, if any, will be subject to Board approval.

 

Share Repurchase Plan. On February 15, 2018, the Board also approved the adoption of a share repurchase plan with J.P. Morgan Securities LLC intended to qualify for the safe harbor under Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the “10b5-1 Plan”). The 10b5-1 Plan will become effective on May 1, 2018 and terminate on July 31, 2018, unless terminated sooner in accordance with its terms. Purchases may be made in the open market or through privately negotiated transactions in support of the Company’s share repurchase plan. Purchases in the open market will be made in compliance with Rule 10b-18 under the Securities Exchange Act of 1934.

 

Shareholders Rights Agreement. On February 15, 2018, the Board also adopted a resolution with respect to the Company’s Rights Agreement which was most recently amended as of August 1, 2008 and expires on August 4, 2018 (the “Rights Agreement”). Such resolution provides that, following the expiration of the Rights Agreement at the close of business on August 4, 2018, the Board will only adopt a shareholder rights plan if (i) in the exercise of its fiduciary responsibilities, it determines that it is in the best interests of the stockholders under the circumstances to adopt such plan without the delay that would result from seeking stockholder approval, (ii) such plan will be put to a stockholder ratification vote within 12 months of adoption or will expire and (iii) if such plan is not approved by a majority of the votes cast on the issue, the plan will immediately terminate.

 



 

ITEM 9.01       FINANCIAL STATEMENTS AND EXHIBITS.

 

(d)        Exhibits

 

99.1

 

Press release dated February 21, 2018 entitled, “The Cheesecake Factory Reports Results for Fourth Quarter of Fiscal 2018”

 

 

 

99.2

 

First Amendment to Employment Agreement, effective April 1, 2018

 

 

 

99.3

 

Form of Notice of Grant and Stock Option Agreement and/or Restricted Share Agreement

 



 

EXHIBIT INDEX

 

Exhibit

 

Description

 

99.1

 

Press release dated February 21, 2018 entitled, “The Cheesecake Factory Reports Results for Fourth Quarter of Fiscal 2017”

 

 

 

 

 

99.2

 

First Amendment to Employment Agreement effective April 1, 2018

 

 

 

 

 

99.3

 

Form of Notice of Grant and Stock Option Agreement and/or Restricted Share Agreement

 



 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

Date:  February 21, 2018

THE CHEESECAKE FACTORY INCORPORATED

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Matthew E. Clark

 

 

Matthew E. Clark

 

 

Executive Vice President and Chief Financial Officer

 


EXHIBIT 99.1

 

 

PRESS RELEASE

 

FOR IMMEDIATE RELEASE

Contact: Stacy Feit

 

(818) 871-3000

 

investorrelations@thecheesecakefactory.com

 

THE CHEESECAKE FACTORY REPORTS RESULTS FOR

FOURTH QUARTER OF FISCAL 2017

 

 

CALABASAS HILLS, Calif., – February 21, 2018 – The Cheesecake Factory Incorporated (NASDAQ: CAKE) today reported financial results for the fourth quarter of fiscal 2017, which ended on January 2, 2018.

 

Total revenues were $571.8 million in the fourth quarter of fiscal 2017 as compared to $603.1 million in the fourth quarter of fiscal 2016. The fourth quarter of fiscal 2017 included 13 weeks compared to 14 weeks in the fourth quarter of fiscal 2016. Net income and diluted net income per share were $57.7 million and $1.24, respectively, in the fourth quarter of fiscal 2017.

 

The Company recorded a $38.5 million benefit to the income tax provision from a revaluation of the Company’s deferred tax assets and liabilities related to recently enacted tax reform. The Company also recorded a pre-tax, non-cash impairment charge of $9.1 million related to one Cheesecake Factory restaurant and one Grand Lux Cafe. Excluding these items, net income and diluted net income per share were $24.7 million and $0.53, respectively, in the fourth quarter of fiscal 2017.

 

Comparable restaurant sales at The Cheesecake Factory restaurants declined 0.9% in the fourth quarter of fiscal 2017 (13 weeks vs. 13 weeks).

 

“Our sales trend started to stabilize during the fourth quarter, which coupled with solid operational performance, drove comparable sales and earnings results within our expectations,” said David Overton, Chairman and Chief Executive Officer . “In addition, we opened six restaurants during the quarter, including our first Company-owned international location in Canada, as we continue to execute our growth strategy .

 

Overton continued, “Underscoring the strength of our culture and values, we are honored to be recognized as one of the “100 Best Companies to Work For ® ” by FORTUNE magazine for the fifth consecutive year. As we celebrate the 40th anniversary of our founding this year, our steadfast commitment to taking exceptional care of our guests and staff members has been integral to our success. Even in the face of a challenging restaurant industry environment during 2017, this long-term mindset guides our strategic initiatives and paves the way for a solid future for The Cheesecake Factory.”

 

 

 

 

 

 

26901 Malibu Hills Road, Calabasas Hills, CA 91301 · Telephone (818) 871-3000 · Fax (818) 871-3100

 



 

Development

 

The Company opened five Cheesecake Factory restaurants and one RockSugar Southeast Asian Kitchen during the fourth quarter of fiscal 2017, meeting its objective to open eight Company-owned restaurants in fiscal 2017.

 

In addition, two Cheesecake Factory restaurants opened under licensing agreements internationally during the fourth quarter of fiscal 2017, including the first location in Bahrain and the third location in Qatar, for a total of four locations opened under licensing agreements during fiscal 2017, as expected. In addition, the first location in Beijing opened under a licensing agreement in late January, 2018.

 

Capital Allocation

 

The Company’s Board of Directors declared a quarterly cash dividend of $0.29 per share on the Company’s common stock. The dividend is payable on March 20, 2018 to shareholders of record at the close of business on February 28, 2018.

 

During the fourth quarter of fiscal 2017, the Company repurchased approximately 0.4 million shares of its common stock at a cost of $16.6 million. In fiscal 2017, the Company repurchased a total of 2.6 million shares of its common stock at a cost of $123.0 million.

 

Conference Call and Webcast

 

The Company will hold a conference call to review its results for the fourth quarter of fiscal 2017 today at 2:00 p.m. Pacific Time. The conference call will be webcast live on the Company’s website at investors.thecheesecakefactory.com and a replay of the webcast will be available through March 23, 2018.

 

About The Cheesecake Factory Incorporated

 

The Cheesecake Factory Incorporated created the upscale casual dining segment in 1978 with the introduction of its namesake concept. The Company, through its subsidiaries, owns and operates 214 full-service, casual dining restaurants throughout the U.S.A., including Puerto Rico, and Canada, comprised of 199 restaurants under The Cheesecake Factory ®  mark; 13 restaurants under the Grand Lux Cafe ®  mark; and two restaurants under the RockSugar Southeast Asian Kitchen ®  mark (transitioning from Rock Sugar Pan Asian Kitchen ® ). Internationally, 20 The Cheesecake Factory ®  restaurants operate under licensing agreements. The Company’s bakery division operates two bakery production facilities, in Calabasas Hills, CA and Rocky Mount, NC, that produce quality cheesecakes and other baked products for its restaurants, international licensees and third-party bakery customers. In 2018, the Company was named to the FORTUNE Magazine “100 Best Companies to Work For ® ” list for the fifth consecutive year. To learn more about the Company, visit www.thecheesecakefactory.com .

 

FORTUNE and FORTUNE 100 Best Companies to Work For® are registered trademarks of Time Inc. and are used under license.  From FORTUNE Magazine, March 1, 2018 ©2018 Time Inc. Used under license. FORTUNE and Time Inc. are not affiliated with, and do not endorse products or services of, The Cheesecake Factory Incorporated.

 

Safe Harbor Statement

 

This press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These statements involve known and unknown risks, uncertainties and other factors that may cause the actual results, performance or achievements of the Company to be materially different from any future results, performance or achievements expressed or implied by forward-looking statements, including uncertainties related to the Company’s ability to: stabilize comparable sales results; provide a differentiated experience to guests; outperform the casual dining industry and increase its market share; leverage sales increases and manage flow through; stabilize margins; grow earnings; remain relevant to consumers; attract and retain qualified management and other staff; increase shareholder value; profitably expand its concepts

 

 

26901 Malibu Hills Road, Calabasas Hills, CA 91301 · Telephone (818) 871-3000 · Fax (818) 871-3100

 



 

domestically and in Canada, and work with its licensees to expand its concept internationally; support the growth of North Italia and Flower Child restaurants; develop a fast casual concept; expand consumer packaged goods licensing revenue; utilize its capital effectively and continue to increase cash dividends and repurchase its shares; and factors outside of the Company’s control including: economic and political conditions that impact consumer confidence and spending; impact of recently enacted tax reform; acceptance and success of The Cheesecake Factory in international markets; the risks of doing business abroad through Company-owned restaurants and/or licensees; foreign exchange rates and potential changes in NAFTA and cross border taxation; changes in unemployment rates; the economic health of the Company’s landlords and other tenants in retail centers in which its restaurants are located; the economic health of suppliers, licensees, vendors and other third parties providing goods or services to the Company; adverse weather conditions in regions in which the Company’s restaurants are located; factors that are under the control of government agencies, landlords and other third parties; and other risks and uncertainties detailed from time to time in the Company’s filings with the Securities and Exchange Commission (“SEC”). Investors are cautioned that forward-looking statements are not guarantees of future performance and that undue reliance should not be placed on such statements. Forward-looking statements speak only as of the dates on which they are made and the Company undertakes no obligation to publicly update or revise any forward-looking statements or to make any other forward-looking statements, whether as a result of new information, future events or otherwise, unless required to do so by securities laws. Investors are referred to the full discussion of risks and uncertainties associated with forward-looking statements and the discussion of risk factors contained in the Company’s latest Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K as filed with the SEC, which are available at www.sec.gov.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

26901 Malibu Hills Road, Calabasas Hills, CA 91301 · Telephone (818) 871-3000 · Fax (818) 871-3100

 



 

The Cheesecake Factory Incorporated

Consolidated Financial Statements

(unaudited; in thousands, except per share and statistical data)

 

 

 

 

13 Weeks Ended

 

14 Weeks Ended

 

52 Weeks Ended

 

53 Weeks Ended

Consolidated Statements of Income

 

January 2, 2018

 

January 3, 2017

 

January 2, 2018

 

January 3, 2017

 

 

 

 

Percent of

 

 

 

Percent of

 

 

 

Percent of

 

 

 

Percent of

 

 

Amount

 

Revenues

 

Amount

 

Revenues

 

Amount

 

Revenues

 

Amount

 

Revenues

Revenues

 

$

571,815

 

100.0%

 

$

603,146

 

100.0%

 

$

2,260,502

 

100.0%

 

$

2,275,719

 

100.0%

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cost of sales

 

134,015

 

23.4%

 

140,084

 

23.2%

 

519,388

 

23.0%

 

526,628

 

23.2%

Labor expenses

 

197,231

 

34.5%

 

202,562

 

33.6%

 

777,595

 

34.4%

 

759,998

 

33.4%

Other operating costs and expenses

 

141,257

 

24.7%

 

143,951

 

23.9%

 

552,791

 

24.4%

 

540,365

 

23.7%

General and administrative expenses

 

34,587

 

6.1%

 

38,863

 

6.4%

 

141,533

 

6.2%

 

146,042

 

6.4%

Depreciation and amortization expenses

 

23,237

 

4.1%

 

23,451

 

3.9%

 

92,729

 

4.1%

 

88,010

 

3.9%

Impairment of assets and lease terminations

 

9,112

 

1.6%

 

114

 

0.0%

 

10,343

 

0.5%

 

114

 

0.0%

Preopening costs

 

7,629

 

1.3%

 

6,975

 

1.2%

 

13,278

 

0.6%

 

13,569

 

0.6%

Total costs and expenses

 

547,068

 

95.7%

 

556,000

 

92.2%

 

2,107,657

 

93.2%

 

2,074,726

 

91.2%

Income from operations

 

24,747

 

4.3%

 

47,146

 

7.8%

 

152,845

 

6.8%

 

200,993

 

8.8%

Interest and other expense, net

 

(1,953)

 

(0.3)%

 

(2,263)

 

(0.4)%

 

(6,379)

 

(0.3)%

 

(9,225)

 

(0.4)%

Income before income taxes

 

22,794

 

4.0%

 

44,883

 

7.4%

 

146,466

 

6.5%

 

191,768

 

8.4%

Income tax provision/(benefit)

 

(34,944)

 

-6.1%

 

12,502

 

2.0%

 

(10,926)

 

-0.5%

 

52,274

 

2.3%

Net income

 

$

57,738

 

10.1%

 

$

32,381

 

5.4%

 

$

157,392

 

7.0%

 

$

139,494

 

6.1%

Basic net income per share

 

$

1.26

 

 

 

$

0.68

 

 

 

$

3.35

 

 

 

$

2.91

 

 

Basic weighted average shares outstanding

 

45,751

 

 

 

47,403

 

 

 

46,930

 

 

 

47,981

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Diluted net income per share

 

$

1.24

 

 

 

$

0.66

 

 

 

$

3.27

 

 

 

$

2.83

 

 

Diluted weighted average shares outstanding

 

46,730

 

 

 

48,795

 

 

 

48,152

 

 

 

49,372

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Selected Segment Information

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Cheesecake Factory restaurants

 

$

514,782

 

 

 

$

547,809

 

 

 

$

2,057,816

 

 

 

$

2,078,083

 

 

Other

 

57,033

 

 

 

55,337

 

 

 

202,686

 

 

 

197,636

 

 

Total

 

$

571,815

 

 

 

$

603,146

 

 

 

$

2,260,502

 

 

 

$

2,275,719

 

 

Income/(loss) from operations:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Cheesecake Factory restaurants (1)

 

$

56,553

 

 

 

$

74,673

 

 

 

$

263,581

 

 

 

$

308,058

 

 

Other (2)

 

(1,385)

 

 

 

8,189

 

 

 

17,547

 

 

 

27,623

 

 

Corporate

 

(30,421)

 

 

 

(35,716)

 

 

 

(128,283)

 

 

 

(134,688)

 

 

Total

 

$

24,747

 

 

 

$

47,146

 

 

 

$

152,845

 

 

 

$

200,993

 

 

 

(1)  Includes the following recorded in impairment of assets and lease terminations in the consolidated statements of income: $1.3 million in the thirteen weeks ended January 2, 2018 related to one The Cheesecake Factory restaurant; $2.5 million in the fifty-two weeks ended January 2, 2018 related to three The Cheesecake Factory restaurants; and $0.1 million in the fourteen and fifty-three weeks ended January 3, 2017 related to one The Cheesecake Factory restaurant.

 

(2)  Includes $7.8 million recorded in impairment of assets and lease terminations in the consolidated statements of income in the thirteen and fifty-two weeks ended January 2, 2018 related to one Grand Lux Cafe.

 

 

Selected Consolidated Balance Sheet Information

 

January 2, 2018

 

January 3, 2017

 

 

 

 

Cash and cash equivalents

 

$        6,008

 

$      53,839

 

 

 

 

Total assets

 

1,333,060

 

1,293,319

 

 

 

 

Total liabilities

 

719,530

 

690,112

 

 

 

 

Stockholders’ equity

 

613,530

 

603,207

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

13 Weeks Ended

 

14 Weeks Ended

 

52 Weeks Ended

 

53 Weeks Ended

The Cheesecake Factory Supplemental Information

 

January 2, 2018

 

January 3, 2017

 

January 2, 2018

 

January 3, 2017

Comparable restaurant sales

 

-0.9%

 

1.1%

 

-0.8%

 

1.2%

Restaurants opened during period

 

5

 

5

 

7

 

7

Restaurants open at period-end

 

199

 

194

 

199

 

194

Restaurant operating weeks

 

2,546

 

2,690

 

10,096

 

10,031

 

 

 

 

 

 

 

 

26901 Malibu Hills Road, Calabasas Hills, CA 91301 · Telephone (818) 871-3000 · Fax (818) 871-3100

 



 

Reconciliation of Non-GAAP Results to GAAP Results

 

 

In addition to the results provided in accordance with Generally Accepted Accounting Principles (“GAAP”) in this press release, the Company is providing non-GAAP measurements which present net income and diluted net income per share excluding the impact of certain items.

 

The non-GAAP measurements are intended to supplement the presentation of the Company’s financial results in accordance with GAAP. The Company believes that the presentation of these items provides additional information to facilitate the comparison of past and present financial results.

 

 

 

 

The Cheesecake Factory Incorporated

Reconciliation of Non-GAAP Financial Measures

(unaudited; in thousands, except per share data)

 

 

 

13 Weeks Ended

 

14 Weeks Ended

 

52 Weeks Ended

 

53 Weeks Ended

 

 

January 2, 2018

 

January 3, 2017

 

January 2, 2018

 

January 3, 2017

Net Income (GAAP)

 

$

57,738

 

$

32,381

 

$

157,392

 

$

139,494

After-tax impact from:

 

 

 

 

 

 

 

 

- Impairment of assets and lease terminations (1)

 

5,467

 

68

 

6,206

 

68

- Deferred tax revaluation (2)

 

(38,525)

 

-

 

(38,525)

 

-

Adjusted net income (non-GAAP)

 

$

24,680

 

$

32,449

 

$

125,073

 

$

139,562

 

 

 

 

 

 

 

 

 

Diluted net income per share (GAAP)

 

$

1.24

 

$

0.66

 

$

3.27

 

$

2.83

After-tax impact from:

 

 

 

 

 

 

 

 

- Impairment of assets and lease terminations

 

0.12

 

0.00

 

0.13

 

0.00

- Deferred tax revaluation

 

(0.83)

 

-

 

(0.80)

 

-

Adjusted diluted net income per share (non-GAAP) (3)

 

$

0.53

 

$

0.67

 

$

2.60

 

$

2.83

 

(1)  The pre-tax amounts associated with these items were $9.1 million and $10.3 million in the thirteen weeks and fifty-two weeks ended January 2, 2018, respectively, and $0.1 million in the fourteen and fifty-three weeks ended January 3, 2017. These amounts were recorded in impairment of assets and lease terminations.

(2)  Fiscal 2017 includes a $38.5 million benefit to the income tax provision related to recently enacted tax reform.

(3)  Adjusted diluted net income per share may not add due to rounding.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

26901 Malibu Hills Road, Calabasas Hills, CA 91301 · Telephone (818) 871-3000 · Fax (818) 871-3100

 


 

Exhibit 99.2

 

FIRST AMENDMENT TO EMPLOYMENT AGREEMENT

 

This First Amendment to Employment Agreement, dated as of February 15, 2018 (“Amendment”), is made and entered into by and between The Cheesecake Factory Incorporated (“Company”) and David M. Overton (“Executive”), with reference to the following:

 

A.   Effective April 1, 2017, the Company and Executive entered into an Employment Agreement (“Agreement”). All capitalized terms used herein and not otherwise defined shall have the meaning given such term in the Employment Agreement.

 

B.   The Term of the Agreement expires April 1, 2018, unless sooner terminated in accordance with its terms, and provided for an extension of the Term by mutual agreement.

 

C.   The Company and Executive desire to extend the Term and provide for additional yearly extensions, unless either Company or Executive elects not to extend by notice to one another.

 

Now, therefore, for valuable consideration, the receipt of which is acknowledged, the Company and Executive agree to extend the Term and provide for the following modification and amendment to the Agreement:

 

1. Term .  Effective April 1, 2018, Section 2 of the Agreement is deleted in its entirety and the following provision substituted in its place:

 

The initial “ Term of this Agreement ” or “ Term ” shall commence on April 1, 2018 and end on the first anniversary of such date.  On such first anniversary date, and on each subsequent annual anniversary date thereafter, the Term of this Agreement shall be automatically extended for one additional year unless, not less than ninety (90) days prior to any such anniversary date, either the Company or the Executive shall give notice not to extend this Agreement.  Upon the expiration of the Term of this Agreement as the result of such notice by either party not to extend the Term, the employment of the Executive will thereafter continue on an at-will basis subject to the ability of either party to terminate such employment relationship at any time. A notice  by either party not to further extend the Term of this Agreement shall not be treated as a termination by the Company without Cause or a Constructive Termination by the Executive, in and of itself and absent other factors giving rise to a without Cause termination or a Constructive Termination, nor shall any such notice of non-extension  give rise to the payment of any benefits under Section 14 hereof unless payments under such Section 14 otherwise would have been due irrespective of such notice of non-extension.  “The Term of this Agreement” shall mean, for purposes of this Agreement, such initial one-year term and subsequent extensions, if any.

 



 

2. No Further Modifications . Except as modified in this Amendment, the Agreement remains unmodified and in full force and effect.

 

 

 

“Company”

THE CHEESECAKE FACTORY INCORPORATED

 

BY:

 

 

 

 

ITS:

 

 

 

 

“Executive”

 

 

 

/s/ DAVID M. OVERTON

 

DAVID M. OVERTON

 

 


EXHIBIT 99.3

 

Executive Officer-2018

 

The Cheesecake Factory Incorporated
2010 Stock Incentive Plan, last Amended June 8, 2017

 

NOTICE OF GRANT AND STOCK OPTION AGREEMENT AND/OR RESTRICTED SHARE AGREEMENT

 

Notice is hereby given of the following Option Grant to purchase Shares and/or Award of Restricted Shares of The Cheesecake Factory Incorporated, a Delaware corporation (“Company”), pursuant to the 2010 Stock Incentive Plan, last amended June 8, 2017(“Plan”).  In consideration of the promises and of the mutual agreements contained in this Notice of Grant and Stock Option Agreement and/or Restricted Share Agreement (“Agreement”), the parties hereto agree as follows:

 

Section 1.  Definitions .  Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings ascribed thereto in the Plan.  Otherwise, as used in this Agreement, the following terms shall have the following respective meanings:

 

Award

The Options to purchase stock and/or Restricted Shares granted in accordance with this Agreement

Code

The Internal Revenue Code of 1986, as amended.

Company

The Cheesecake Factory Incorporated, a Delaware corporation.

Date of Grant

_________, 201_

 

Participant

 

No. of Restricted Shares-No Performance Condition

_____Restricted Shares

Restricted Shares-No Performance Condition Vesting Date(s)

Restricted Shares Vesting Date(s)

 

_______, 20__

_______, 20__

_______, 20__

 

Incremental Vesting Percentage

 

60%

20%

20%

 

Target No. of Restricted Shares Awarded- EPS Performance Condition

____Restricted Shares. Actual Restricted Shares vesting may be at a lower or higher amount, or none at all, dependent upon the level of achievement of the EPS Performance Condition, within a range between the Threshold EPS Performance Condition and the Maximum EPS Performance Condition, inclusive.

 

Targeted EPS Performance Condition

The Company’s cumulative fully diluted earnings per share growth over Fiscal Years:

·                  20__,

·                  20__, and

·                  20__

being equal to:

 

- 1 -



 

 

$__, which is an __% annual increase over the Company’s fully diluted earnings per share for the Fiscal Year ending prior to the Date of Grant

Maximum EPS Performance Condition

___% of the Targeted EPS Performance Condition (i.e., $____ cumulative fully diluted EPS growth over the Fiscal Year ending prior to the Date of Grant)

Threshold EPS Performance Condition

__% of the Targeted EPS Performance Condition (i.e., $___ cumulative fully diluted EPS growth over the Fiscal Year ending prior to the Date of Grant)

 

 

 

Restricted Shares Vesting Date(s)-EPS Performance Condition

Subject to achievement of at least the Threshold EPS  Performance Condition, the applicable percentage of then-outstanding Restricted Shares-EPS Performance Condition that are eligible to vest shall be as shown on the attached Exhibit A .

The Restricted Shares-EPS Performance Condition that remain outstanding after the degree of achievement of the EPS Performance Condition under Exhibit A has been determined, then shall be subject to the following incrementally time based vesting condition (with the number of vesting Restricted Shares rounded to the nearest whole number):

 

 

Restricted Shares Vesting Date

_______, 20__

_______, 20__

_______, 20__

 

Incremental Vesting Percentage

60%

20%

20%

 

No. of Non-Statutory Option Shares Granted

_____Option Shares

Option Exercise Price

$____ per share

Option Expiration Date

_____, 202_

Option Vesting Date(s)

         Option Shares on              , 20     

 

         Option Shares on              , 20     

 

         Option Shares on              , 20     

 

         Option Shares on              , 20     

 

         Option Shares on              , 20     

 

 

Option

The option to purchase shares of the Company’s Common Stock granted to Participant pursuant to the Plan and this Agreement. The Option is not intended to constitute an “incentive stock option” as that term is used in Code section 422.

QDRO

A domestic relations order as defined in Code section 414(p)(1)(B).

Restricted Shares

The Restricted Shares awarded to Participant pursuant to the Plan and this Agreement. 

 

- 2 -



 

Section 2. Designation of Award .  Subject to the terms and conditions of the Plan and this Agreement, the Company grants to Participant the Option to purchase the number of Option Shares shown above and/or grants to Participant the number of Restricted Shares shown above.

 

Section 3. Interpretation .  The terms and provisions of the Plan are hereby incorporated into this Agreement as if set forth herein in their entirety.  Participant hereby agrees to be bound by the terms of the Plan and this Agreement and acknowledges that the Option is, and/or Restricted Shares are, granted subject to and in accordance with the Plan and this Agreement.  In the event of a conflict between any provision of this Agreement and the Plan, the provisions of the Plan shall control.  By execution below, Participant acknowledges receipt of a copy of the 2010 Stock Incentive Plan Summary and Prospectus. A copy of the Plan is available, without charge, upon request to the Company’s Stock Plan Administrator.

 

Section 4.  Exercise of Option; Sale of Shares . (a) This Option is exercisable during its term in accordance with the Option Vesting Dates set out in this Agreement and the applicable provisions of the Plan and this Agreement. This Option is exercisable in a manner and pursuant to such procedures as the Committee may determine. No Shares shall be issued pursuant to the exercise of this Option unless such issuance and exercise complies with applicable laws.  Assuming such compliance, for income tax purposes, the Shares shall be considered transferred to the Participant on the date the Option is exercised with respect to such Shares.    Notwithstanding anything to the contrary in this Agreement or anywhere else, the Option shall not be exercisable after the Option Expiration Date.

 

(b)        Payment of the aggregate Exercise Price and any applicable tax withholding obligation shall be by any of the following, or a combination thereof, at the election of the Participant:  (i) cash; or (ii) check; or (iii) consideration received by the Company using a Cashless Exercise; or (iv) with the Committee’s consent, consideration received by the Company through a Net Exercise; or (v) with the Committee’s consent, surrender of other Shares, provided that such Shares in the case of Shares acquired from the Company, have been vested and owned by the Participant for more than six (6) months on the date of surrender.  Utilization of the methods described in clauses (iii), (iv) and (v) shall in all cases be subject to the Company’s Special Trading Policy and Procedures and the Addendum thereto.

 

(c)        The sale of Shares received from the exercise of the Option may at the Company’s discretion be delayed in order to restrict sale of the Shares received from the exercise of an Option during any period in which trading in the Company’s securities is restricted under the Company’s Special Trading Policy and Procedures or otherwise as required under applicable securities’ laws.

 

(d)       The sale of Shares received from the exercise of an Option may at the Company’s discretion be delayed if in the Company’s judgment trading market conditions would be adversely impacted by the exercise and sale of such Shares.  The Company may also at its discretion place any reasonable restrictions or conditions on the sale of Shares received upon exercise of the Option as it believes would be in the best interests of the trading market for the Company’s securities.

 

- 3 -



 

Section 5.  Termination of Option .  (a) The term of the Option shall commence on the Date of Grant and expire on the earlier of (i) the Option Expiration Date set forth above, (ii) the eighth (8th) year anniversary of the Date of Grant; or (iii) if Participant’s Service is terminated, and such termination of Service occurs by reason of (A) death or Disability, twenty-four (24) months from the death or Disability Termination Date; (B) Retirement, twenty-four (24) months from the Retirement Termination Date, provided, however, that such twenty-four (24) month period shall instead be thirty-six (36) months if the Participant has completed at least twenty (20) continuous years of Service as of the Termination Date; or (C) other than for Retirement, death or Disability, or Cause, three (3) months from the Termination Date unless a later time period is specified in Participant’s employment agreement with the Company, if any, in which case such later time period shall apply. Notwithstanding the above, if Participant’s termination of Service occurs by reason of Cause, neither the Participant nor the Participant’s estate nor such other person who may then hold the Option shall be entitled to exercise such Option on or after the Termination Date.

 

(b) In accordance with Plan Section 4(g), to the extent that during the entire last two (2) weeks prior to the termination of a vested, in-the-money Option due to the Participant’s termination of Service for any reason other than by the Company for Cause, a sale of Shares underlying such Option would violate Section 16(b) of the Exchange Act or would otherwise be prohibited by Company policy or applicable law or regulations, then such Options shall instead remain exercisable for two (2) weeks after the first business day that all such prohibitions to sale are no longer applicable (subject in all cases to the term of the Option as set forth in Section 5 above).

 

(c)        Notwithstanding anything to the contrary in this Agreement or anywhere else, the Option shall not be exercisable after the Option Expiration Date.

 

Section 6.   Restricted Shares and Forfeiture .  The unvested portion of the Restricted Shares are subject to forfeiture.  Except as provided in this Agreement, in order to vest in and not forfeit Restricted Shares, the Participant must remain in Service until the applicable Restricted Shares Vesting Date (as such date may be accelerated pursuant to Section 8 below). Participant may not transfer (within the meaning described in Section 9) Restricted Shares (the “Restrictions”).

 

Section 7. Dividend and Voting Rights For Restricted Shares .  After the Date of Grant, Participant shall be entitled to voting rights with respect to the Restricted Shares even though the Restrictions have not lapsed, provided that such rights shall terminate immediately as to any Restricted Shares that are forfeited pursuant to this Agreement.  If any dividends are declared and paid on Shares, then such dividends (whether in the form of cash or Shares) shall be subject to the same vesting conditions and restrictions as the Restricted Shares with respect to which the dividends were paid, and Participant shall not be entitled to receive any such dividends until the Restrictions have lapsed.  If the Board makes any adjustment pursuant to Section 11 of the Plan and the Restrictions have not lapsed as to the Restricted Shares prior to such adjustment, the Restrictions and forfeiture provisions of this Agreement shall be applicable to any additional Shares resulting from such adjustment to the same extent as the Restrictions and forfeiture provisions of this Agreement and forfeiture provisions of this Agreement applicable to the Restricted Shares to which the additional Shares relate.

 

- 4 -



 

Section 8.  Vesting Date; Lapse of Restrictions .

 

Except as otherwise provided in the Plan or this Agreement, the Option Vesting Date and/or the Restricted Shares Vesting Date shall occur as follows:

 

(a)        The Option, or portion thereof, shall be exercisable on an applicable Option Vesting Date (as such date may be accelerated pursuant to this Section 8 below) provided the Participant is in Service and in good standing on the applicable Vesting Date.  Notwithstanding the foregoing, in the event of Participant’s death or Disability, the portion of the Option that would have otherwise vested during the period beginning on the date of such death or the Termination Date due to such Disability and ending on the date that is twenty-four (24) months thereafter shall vest as of the date of the Participant’s death or the Termination Date due to such Disability.

 

(b)        The Restrictions on the Restricted Shares shall lapse on the Restricted Shares Vesting Date; provided, however , that except as provided in this Section 8 below (or Plan Sections 3(b)(iv) or 12)) in no event shall the Restrictions on Restricted Shares lapse prior to one (1) year from the Date of Grant.  Notwithstanding the foregoing, and in accordance with Plan Sections 3(b)(iv) and 10(c), in the event of Participant’s death or Disability, the Restrictions that would have otherwise lapsed during the period beginning on the date of such death or Termination Date due to such Disability and ending on the date that is twenty-four (24) months thereafter shall lapse as of the date of the Participant’s death or the Termination Date due to such Disability.

 

(c)        In the event that a Change in Control occurs and there is no assumption or continuation of some or all outstanding Awards pursuant to Plan Section 12(a), then as to those Awards that are not assumed or continued under Plan Section 12(a), the Option shall fully vest and become exercisable with respect to all Option Shares issued hereunder and the Restrictions on the Restricted Shares awarded hereunder shall lapse and the Restricted Shares shall become fully vested and settled, as of immediately before such Change in Control. Pursuant to Plan Section 12(b), Participant shall be given written notice at least thirty (30) days prior to the consummation of such Change in Control that the Awards that are not assumed or continued under Plan Section 12(a) will be canceled as of the Change in Control.

 

(d)       In the event a Change in Control occurs and (i) the acquiring entity assumes or continues some or all outstanding Awards pursuant to Plan Section 12(a), (ii) within eighteen (18) months thereafter an event occurs which constitutes a “Constructive Termination” or a termination for “Good Reason” by Participant (as defined under Participant’s written employment agreement with the Company, if any), and (iii) Participant’s terminates from Service, then with respect to the Awards issued hereunder that are so assumed or continued, all installments of Awards that are held by the Participant and scheduled to vest, or to become exercisable, or to be subject to lapse of restrictions, at any time within twenty-four (24) months after the date Participant terminates from Service shall become exercisable, and vest, and any

 

- 5 -



 

restriction shall lapse, as of such termination date; provided, however , that any vesting, exercisability or lapse of restriction on any Award which is contingent upon satisfaction of a Company performance-based condition or performance goal under this Agreement shall continue to be subject to such performance-based condition or performance goal and will only be deemed satisfied and vested if and when (if ever) such Company performance-based condition or performance goal is actually achieved as provided herein (but shall not be subject to further time based vesting) .

 

(e)        Vested Restricted Shares may be settled in (i) Shares, (ii) cash, or (iii) a combination of both, as determined by the Committee.  Until the Award is settled, the number of Restricted Shares subject to the Award shall be subject to adjustment pursuant to Section 11 of the Plan.  Whenever cash is used to settle some or all of Participant’s Restricted Shares, the Fair Market Value (determined as of the Vesting Date) shall be used to determine the amount of cash to be provided to Participant.  Vested Restricted Shares will entitle Participant to receive upon the Vesting Date a whole number of Shares and/or cash such that the aggregate value provided to Participant equals the Fair Market Value multiplied by the total number of vested Restricted Shares being settled.  Settled Restricted Shares shall be immediately canceled and no longer outstanding and Participant shall have no further rights or entitlements related to those settled Restricted Shares.

 

(f)        The provisions of this Section 8 are subject to the specific terms of any written employment agreement between the Participant and the Company, which agreement may provide for the acceleration of the Vesting Date of Options or the removal of Restrictions and acceleration of Restricted Shares Vesting Date upon the occurrence of specified events.  If the conditions under such employment agreement occur for the acceleration of the Vesting Date of Options or the removal of Restrictions and acceleration of the Restricted Shares Vesting Date, then notwithstanding anything to the contrary in this Agreement, the Option shall become exercisable and fully vested with respect to all Option Shares granted hereunder and the Restrictions on the Restricted Shares awarded hereunder shall lapse and the Restricted Shares, as applicable, shall become fully vested as of the date required under such employment agreement, except in no event shall acceleration of any Restricted Shares result in the lapse of the Restrictions prior to one (1) year from the Date of Grant (except as permitted under Plan Sections 3(b)(iv) or 12)).

 

Section 9.  Restrictions on Transfer .

 

(a)        The Option may not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of, alienated or encumbered (collectively, a “Transfer”) in any way by Participant, either voluntarily or involuntarily, and may be exercised during the lifetime of Participant only by Participant, or in the event of Participant’s legal incapacity, by Participant’s guardian or legal representative acting in a fiduciary capacity on behalf of Participant under state law.  If Participant dies, the Option shall thereafter be exercisable as provided above and in the Plan.  The Option shall not be subject to execution, attachment or similar process other than pursuant to a QDRO.

 

- 6 -



 

(b)        Prior to the time that the Restrictions have lapsed with respect to Restricted Shares, the Restricted Shares, nor any interest therein, or amount payable in respect thereof may be Transferred in any way, either voluntarily or involuntarily.  The Transfer restrictions in the preceding sentence shall not apply to: (i) transfers to the Company; (ii) transfers by will or the laws of descent and distribution; or (iii) transfers pursuant to a QDRO.  Upon and after the time any Restrictions shall have lapsed, Participant shall be permitted to transfer the Shares as to which the Restrictions have lapsed subject to applicable securities law requirements, the Company’s Special Trading Policy and Procedures, and any other applicable laws or regulations.

 

(c)        Any attempted Transfer of the Option or Restricted Shares contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the Option, or Restricted Shares, except pursuant to a QDRO, shall be null and void and without effect.

 

Section 10.      Award Subject to Clawback Policy .  In accordance with Section 13(d) of the Plan, the Company may (i) cause the cancellation of all or any portion of this Award, (ii) require reimbursement of all or any portion of this Award by the Participant and (iii) effect any other right of recoupment of equity or other compensation provided under the Plan or otherwise in accordance with Company policies and/or applicable law (each, a “Clawback Policy”) in effect as of the Date of Grant of this Award.

 

Section 11.  Designation of Beneficiary .  Participant may designate one or more beneficiaries with respect to this Award or any Awards made under the Plan by timely filing the prescribed beneficiary designation form with the Company.  A beneficiary designation may be changed by filing the prescribed form with the Company at any time prior to the Participant’s death.  If no beneficiary was designated or if no designated beneficiary survives the Participant, then after a Participant’s death any vested portion of the Award shall be transferred or distributed to the Participant’s estate.

 

Section 12.   No Tax or Other Advice from Company .  The Company has not provided any tax, legal or financial advice to Participant, and the Company has not made any recommendations regarding Participant’s participation in the Plan or Participant’s acquisition or sale of the underlying Shares.  Participant is hereby advised to consult with Participant’s own personal tax, legal and financial advisors regarding Participant’s participation in the Plan before taking any action related to the Plan or this Agreement.

 

Section 13. Tax Withholding .  The Company in its discretion shall be entitled to require a cash payment by or on behalf of Participant and/or deduct from other compensation payable to Participant any sums required by federal, state, local or foreign tax law or regulation to be withheld with respect to the lapsing of any Restrictions.  If Participant makes the election permitted by Section 83(b) of the Code to include in such Participant’s gross income in the year of transfer the amounts specified in Section 83(b) of the Code, then Participant shall notify the Company of such election within 10 days after filing the notice of the election with the Internal Revenue Service.  PARTICIPANT ACKNOWLEDGES THAT IT IS PARTICIPANT’S SOLE RESPONSIBILITY, AND NOT THE COMPANY’S, TO FILE A TIMELY ELECTION UNDER CODE SECTION 83(B), EVEN IF PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON PARTICIPANT’S BEHALF.  MOREOVER, PARTICIPANT IS RELYING SOLELY ON PARTICIPANT’S OWN ADVISORS WITH RESPECT TO THE DECISION AS TO WHETHER OR NOT TO FILE A CODE SECTION 83(B) ELECTION.

 

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Section 14.  Notices .  All notices, claims, certificates, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given and delivered if personally delivered or if sent by nationally-recognized overnight courier, by telecopy, or by registered or certified mail, return receipt requested and postage prepaid, addressed as follows:

 

(a)        if to the Company:

 

The Cheesecake Factory Incorporated

26901 Malibu Hills Road

Calabasas Hills, California  91301

Attention:  General Counsel

 

If to the Company, to exercise an Option:

 

The Cheesecake Factory Incorporated

26901 Malibu Hills Road

Calabasas Hills, California  91301

Attn: Stock Plan Administrator

 

(b)        if to Participant:

 

The last address set forth in the Company’s records

 

or to such other address as the party to whom notice is to be given may have furnished to the other party in writing in accordance herewith.  Any such notice or communication shall be deemed to have been received (i) in the case of personal delivery, on the date of such delivery (or if such date is not a business day, on the next business day after the date of delivery), (ii) in the case of nationally recognized overnight courier, on the next business day after the date sent, (iii) in the case of telecopy transmission, when received (or if not sent on a business day, on the next business day after the date sent), and (iv) in the case of mailing, on the third business day following that date on which the piece of mail containing such communication is posted.

 

Section 15.  Waiver of Breach .  The waiver by either party of a breach of any provision of this Agreement must be in writing and shall not operate or be construed as a waiver of any other or subsequent breach.

 

Section 16.  Participant’s Undertaking .  Participant hereby agrees to take whatever additional actions and execute whatever additional documents the Company may in its reasonable judgment deem necessary or advisable in order to carry out or affect one or more of the obligations or restrictions imposed on Participant pursuant to the express provisions of this Agreement and the Plan.

 

Section 17.  Modification of Rights .  The rights of Participant are subject to modification and termination in certain events as provided in this Agreement and the Plan.

 

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Section 18.  Governing Law .  THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED.  IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF DELAWARE WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION’S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.

 

Section 19.  Resolution of Disputes .

 

(a)        Arbitration . Any dispute, controversy or claim arising out of or relating to this Agreement or the Plan shall be settled by binding arbitration held in Los Angeles, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, except as specifically otherwise provided in this Section 19.  This Section 19 shall be construed and enforced in accordance with the Federal Arbitration Act, notwithstanding any other choice of law provision in this Agreement.  Notwithstanding the foregoing:

 

Any party hereto may, in its discretion, apply to a court of competent jurisdiction for equitable relief.  Such an application shall not be deemed a waiver of the right to compel arbitration pursuant to this Section 19.

 

(b)        Arbitrators . The panel to be appointed shall consist of three neutral arbitrators:  one selected by the Company, one selected by the Participant, and one selected by the designees of the Company and Participant.

 

(c)        Procedures .  The arbitrator(s) shall allow such discovery as the arbitrator(s) determine appropriate under the circumstances and shall resolve the dispute as expeditiously as practicable, and if reasonably practicable, within one hundred twenty (120) days after the selection of the arbitrator(s).  The arbitrator(s) shall give the parties written notice of the decision, with the reasons therefor set out, and shall have thirty (30) days thereafter to reconsider and modify such decision if any party so requests within ten (10) days after the decision.

 

(d)       Authority .  The arbitrator(s) shall have authority to award relief under legal or equitable principles, including interim or preliminary relief, and to allocate responsibility for the costs of the arbitration and to award recovery of attorneys’ fees and expenses in such manner as is determined to be appropriate by the arbitrator(s).

 

(e)        Entry of Judgment .  Judgment upon the award rendered by the arbitrator(s) may be entered in any court having in personam and subject matter jurisdiction.  Company and Participant hereby submit to the in personam jurisdiction of the Federal and State courts in Los Angeles, California, for the purpose of confirming any such award and entering judgment thereon.

 

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(f)        Confidentiality .  All proceedings under this Section 19, and all evidence given or discovered pursuant hereto, shall be maintained in confidence by all parties and by the arbitrators.

 

(g)        Continued Performance .  The fact that the dispute resolution procedures specified in this Section 19 shall have been or may be invoked shall not excuse any party from performing its obligations under this Agreement and during the pendency of any such procedure all parties shall continue to perform their respective obligations in good faith.

 

(h)        Tolling .  All applicable statutes of limitation shall be tolled while the procedures specified in this Section 19 are pending.  The parties will take such action, if any, required to effectuate such tolling.

 

(i)         Confidentiality .  All proceedings under this Section 19, and all evidence given or discovered pursuant hereto, shall be maintained in confidence by all parties and by the arbitrators.

 

Section 20.  No Employment Commitment by Company; No Effect on Employment Agreements .  Nothing in this Agreement or the Plan constitutes an employment commitment by the Company, affects Participant’s status under any employment agreement between the Company and Participant, confers upon Participant any right to remain employed by the Company or any subsidiary, interferes in any way with the right of the Company or any subsidiary at any time to terminate such employment, or affects the right of the Company or any subsidiary to increase or decrease Participant’s compensation or other benefits.  The preceding sentence is subject, however, to the terms of any written employment agreement between Participant and the Company (which may not be modified by any oral agreement). Notwithstanding anything to the contrary in this Agreement, in the event of a conflict between this Agreement and any written employment agreement between Participant and the Company, the written employment agreement shall control provided, however, that if this Agreement provides for earlier vesting schedules, or for the earlier acceleration of vesting of any Option or lapse of Restrictions with respect to Restricted Shares upon the occurrence of specified events, than this Agreement shall control as to such earlier vesting schedule or earlier acceleration of vesting or lapse of Restrictions upon the occurrence such specified events.

 

Section 21.  Counterparts .  This Agreement may be executed in one or more counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts together shall constitute but one agreement.

 

Section 22.  Entire Agreement .  This Agreement and the Plan (and the other writings referred to herein) constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior written or oral negotiations, commitments, representations and agreements with respect thereto.

 

Section 23.  Severability .  If any provision of this Agreement is found to be invalid or unenforceable, the invalidity or unenforceability shall not affect the validity of the remaining provisions hereof.  Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

 

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Section 24.  Compliance with Section 409A of the Code .  The Option and/or Restricted Shares awarded under this Agreement, as the case may be, are intended in all respects not to subject the Participant to taxation under Section 409A of the Code.  To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation, any such regulations or guidance that may be issued after the Date of Grant so that neither the Option nor any Restricted Shares will be subject to Code Section 409A.  In the event that the Company determines that any amounts will be taxable to Participant under Section 409A of the Code and related Department of Treasury guidance, the Company may, in its sole and absolute discretion, adopt such amendments to this Agreement (having prospective or retroactive effect), and/or take such other actions, as the Company determines to be necessary or appropriate to avoid the application of Section 409A of the Code to such Option or Restricted Shares.  No such amendment or other action shall be adopted or taken that will cause the Option and/or the Restricted Shares to be subject to Section 409A.

 

Section 25. Stock Certificates For Restricted Shares .

 

(a)        If Restricted Shares are awarded under this Agreement, the Company shall issue such Restricted Shares subject to this grant either: (i) in certificate form as provided below; or (ii) in book entry form, registered in the name of Participant with notations regarding the applicable restrictions on transfer imposed under this Agreement.

 

Any certificates representing Restricted Shares that may be delivered to Participant by the Company prior to the lapse of the Restrictions shall be promptly redelivered to the Company to be held by the Company until the Restrictions on such Shares shall have lapsed and the Shares shall thereby have become transferable or the Shares represented thereby have been forfeited hereunder.  Such certificates shall bear the following legend:

 

“The ownership of this certificate and the shares of stock evidenced hereby and any interest therein is subject to substantial restrictions on transfer under an Agreement entered into between the registered owner and The Cheesecake Factory Incorporated.  A copy of such Agreement is on file in the office of the Secretary of The Cheesecake Factory Incorporated.”

 

(b)        After the lapse of the Restrictions with respect to any of the Restricted Shares, the Company shall, as applicable, either remove the notations on any of the Restricted Shares issued in book entry form as to which the Restrictions have lapsed or deliver to Participant a certificate or certificates evidencing the number of Restricted Shares as to which the Restrictions have lapsed.  Participant (or the beneficiary or personal representative of Participant in the event of Participant’s death or Disability, as the case may be) shall deliver to the Company any representations or other documents or assurances required in accordance with the Plan.  The Shares so delivered shall no longer be Restricted Shares.

 

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(c)        If Restricted Shares are awarded under this Agreement, concurrently with the execution and delivery of this Agreement, Participant shall deliver to the Company an executed Stock Power and Assignment Separate from Certificate in the form attached hereto as Exhibit B, in blank, with respect to such Shares.  Participant, by acceptance of the grant of Restricted Shares, shall be deemed to appoint, and does so appoint by execution of this Agreement, the Company and each of its authorized representatives as Participant’s attorney(s) in fact to effect any transfer of forfeited Shares (or Shares otherwise reacquired or withheld by the Company hereunder) to the Company as may be required pursuant to the Plan or this Agreement and to execute such documents as the Company or such representatives deem necessary or advisable in connection with any such transfer.

 

 

 

 

THE CHEESECAKE FACTORY INCORPORATED ,

 

a Delaware corporation

 

 

 

 

 

 

 

By:

 

Name and title: Matthew Clark, Executive Vice President and Chief Financial Officer

 

Its Authorized Officer

 

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BY EXECUTION BELOW I ACCEPT ALL TERMS AND CONDITIONS OF THE NOTICE OF GRANT AND THE OTHER DOCUMENTS REFERENCED HEREIN

 

 

 

PARTICIPANT:

 

 

 

 

 

 

 

 

 

(Signature)

 

 

 

 

 

(Print Name)

 

 

 

Address for Notice:

 

 

 

 

 

 

 

 

(Please execute and return this Notice of Grant to the Company’s Stock Plan Administrator
at the address above; keep a copy for your records)

 

Attachments :

·                   Exhibit A – Restricted Shares EPS Performance Condition

·                   Exhibit B- Stock Power and Assignment Separate from Certificate

·                   2010 Stock Incentive Plan Summary and Prospectus

·                   Special Trading Policy and Procedures

·                   Addendum To Special Trading Policy and Procedures for Section 16 Persons

·                   SEC Filing List (prospectus supplement)

·                   Designation of Beneficiary(ies) Form

 

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EXHIBIT B

 

STOCK POWER AND

 

ASSIGNMENT SEPARATE FROM CERTIFICATE

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto _________________________________________________________________ (___________) shares of the Common Stock, $0.01 par value per share, of The Cheesecake Factory Incorporated, a Delaware corporation (the “Company”), standing in the name of ___________________ on the books of the Company represented by Certificate No. ______ herewith and does hereby irrevocably constitute and appoint _____________________________________________ attorney to transfer the said stock on the books of the Company with full power of substitution in the premises.

 

Dated  __________________

 

 

 

 

 

 

 

 

Printed Name

 

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