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SECURITIES AND EXCHANGE COMMISSION REGISTRATION
WASHINGTON, D.C. 20549 NO.33-88414
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE CHEESECAKE FACTORY INCORPORATED
(Exact name of Registrant as specified in its charter)
DELAWARE 51-0340466
(State or other jurisdiction of (I.R.S. Employer identification No.)
incorporation or organization)
26950 AGOURA ROAD, CALABASAS HILLS, CA 91301
(ADDRESS OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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THE CHEESECAKE FACTORY INCORPORATED
1992 PERFORMANCE EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
GERALD W. DEITCHLE
26950 AGOURA ROAD, CALABASAS HILLS, CA 91301
818-880-9323
(Name, address and telephone number of agent for service)
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Copy to:
MARK A. BONENFANT, ESQ.
BUCHALTER, NEMER, FIELDS & YOUNGER,
A PROFESSIONAL CORPORATION
601 SOUTH FIGUEROA STREET, SUITE 2400
LOS ANGELES, CALIFORNIA 90017
(213) 891-0700
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Securities Amount Offering Aggregate Amount of
to be Registered to be Price Offering Registration
Registered Per Unit (1) Price Fee
- --------------------------------------------------------------------------------
Common Stock, $.01
par value 900,000 shares $23.125 $20,812,500 $7,177.00
------- ----------- ---------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c).
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PART II--INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
EXPLANATORY NOTE
This Registration Statement relates to the amendment of The Cheesecake
Factory Incorporated 1992 Performance Employee Stock Option Plan (the "1992
Plan") to (i) increase the number of shares available for issuance upon the
exercise of stock options under the 1992 Plan from 937,500 to 1,837,500 (an
increase of 900,000), (ii) provide that all options granted under the 1992
Plan must be issued with an exercise price equal to the fair market value of
the underlying shares on the date of grant, and (iii) limit the number of
options that may be granted to an individual in any one fiscal year to
150,000 options. The content of the Registration Statement on Form S-8,
Registration No. 33-88414 filed with the Securities and Exchange Commission
on January 12, 1995 is hereby incorporated by reference.
ITEM 1. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in this
Registration Statement and are deemed to be a part thereof from the date of
filing such documents by The Cheesecake Factory Incorporated (the
"Corporation"):
(a) The Corporation's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
(b) The Corporation's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document, all or a portion of which is incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in any subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 2. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 3. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 4. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware provides, in
summary, that the directors and officers of the Corporation may, under
certain circumstances, be indemnified by the Corporation against all expenses
incurred by or imposed upon them as a result of actions, suits or proceedings
brought against them as such directors and officers, or as directors or
officers of any other organization at the request of the Corporation, if they
act in good faith and in a manner they reasonably believe to be in or not
opposed to the best interests of the Corporation, and with respect to any
criminal action or proceeding, have no reasonable cause to believe their
conduct was unlawful, except that no indemnification shall be made against
expenses in respect to any claim, issue or matter as to which they shall have
been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
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circumstances of the case, they are fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper. Section 145
of the Delaware General Corporation Law also provides that directors and
officers of the Corporation are entitled to such indemnification by the
Corporation to the extent that such persons are successful on the merits or
otherwise in defending any such action, suit or proceeding. The
Corporation's Bylaws provide for the indemnification by the Corporation of
officers and directors to the fullest extent permitted by Section 145 of the
Delaware General Corporation Law.
Section 102 of the Delaware General Corporation Law provides that a
corporation, in its Certificate of Incorporation, may eliminate the personal
liability of its directors to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, other than
liability for (1) any breach of the director's duty of loyalty to the
corporation of its stockholders, (2) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) any
transaction from which the director derived an improper personal benefit and
(4) unlawful payment of dividends or unlawful stock purchases or redemptions.
The Corporation's Certificate of Incorporation provides for the elimination
of personal liability of its directors as permitted by Section 102 of the
Delaware General Corporation Law.
The Corporation maintains a Directors and Officer's Insurance Policy
for the benefit of its directors and officers.
ITEM 5. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 6. EXHIBITS.
The Exhibits filed herewith are listed on the Exhibit Index on page 6.
ITEM 7. UNDERTAKINGS.
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement.
(b) 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.
(c) 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.
2. The undersigned registrant hereby undertakes 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
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15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in
this 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.
3. 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 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expense 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 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
post-effective amendment to registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Calabasas,
State of California, on July 9, 1996.
THE CHEESECAKE FACTORY INCORPORATED,
a Delaware Corporation
By /s/ David Overton
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David Overton
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Name Title Date
---- ----- ----
/s/ David Overton Chairman of the Board, President July 10, 1996
- ------------------------- and Chief Executive Officer
David Overton (Principal Executive Officer)
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/s/ Gerald W. Deitchle Senior Vice President, Finance July 10, 1996
- ------------------------- and Chief Financial Officer
Gerald W. Deitchle (Principal Financial and
Accounting Officer)
/s/ Evelyn Overton Director July 10, 1996
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Evelyn Overton
/s/ Thomas L. Gregory Director July 10, 1996
- -------------------------
Thomas L. Gregory
/s/ Wayne H. White Director July 10, 1996
- -------------------------
Wayne H. White
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EXHIBIT INDEX
Exhibit Page
Number Exhibit Number
- ------- ------- ------
5* Opinion of Buchalter, Nemer, Fields & Younger, a
Professional corporation
23.1 Auditor's Consent of Independent Accountant
23.2* Legal Counsel Consent is contained in Exhibit 5
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* Incorporated by reference to the initial filing of this Registration Statement
No. 33-88414.
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[LETTERHEAD]
July 11, 1996
EXHIBIT 5
Securities and Exchange Commission
Division of Corporate Finance
450 Fifth Street, N.W.
Washington, D.C. 20549
Attn: Office of Applications and Reports Services
Re: The Cheesecake Factory Incorporated
REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have acted as counsel to The Cheesecake Factory Incorporated, a
Delaware corporation (the "Company"), in connection with the registration of
900,000 shares of common stock, $.01 par value (the "Shares") with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, (the "1933 Act") pursuant to a registration statement on
Form S-8 (the "Registration Statement"). The Shares are registered on behalf of
the Company and will be issued pursuant to the Company's 1992 Performance
Employee Stock Option Plan (the "Plan").
This opinion is being delivered in accordance with the requirements of
Item 601(b)(5)(i) of Regulation S-K under the 1933 Act.
In our capacity as counsel to the Company, we have reviewed such
documents and made such inquiries as we have reasonably deemed necessary to
enable us to render the opinion expressed below. In all such review, we have
made certain customary assumptions such as the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the lack of any
undisclosed modifications, waivers, or amendments to any documents reviewed by
us and the conformity to authentic original documents of all documents submitted
to us as conformed or photostatic copies. For purposes of rendering this
opinion, we have investigated such questions of law as we have deemed necessary.
[LETTERHEAD]
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[LETTERHEAD]
On the basis of the foregoing, and in reliance thereon and subject to
the assumptions, qualifications, exceptions and limitations expressed herein, we
are of the opinion that when the Shares are issued in accordance with the terms
of the Plan, the Shares will be duly authorized, legally issued, fully paid and
non-assessable.
This opinion is limited to the present laws of the State of California
and of the United States of America, and the corporate law of the State of
Delaware.
This opinion is solely for your information in connection with the
offer and sale of the Shares by the Company, and is not, without the prior
written consent of this firm, to be quoted in full or in part or otherwise
referred to in any documents nor to be filed with any governmental agency or
other persons, other than with the Commission and various state securities
administrators in connection with the qualification of the Shares, to which
reference and filings we hereby consent. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the 1933 Act or the rules and regulations of the Commission.
Very truly yours,
Buchalter, Nemer, Fields & Younger
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EXHIBIT 23.1
Consent of Independent Accountants
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We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated February 16, 1996 on our audits of the
consolidated financial statements of The Cheesecake Factory Incorporated as of
December 31, 1995 and January 1, 1995 and for each of the three years in the
period ended December 31, 1995, which report is included in the Corporation's
Annual Report on Form 10-K.
Coopers & Lybrand L.L.P.
Los Angeles, California
July 10, 1996
