<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 8, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
THE CHEESECAKE FACTORY INCORPORATED
(Exact name of Registrant as specified in its charter)
DELAWARE 51-0340466
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
26950 Agoura Road
Calabasas Hills, CA 91301
(818) 871-3000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
--------------------
THE CHEESECAKE FACTORY INCORPORATED
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
GERALD W. DEITCHLE
Executive Vice President
and Chief Financial Officer
26950 Agoura Road
Calabasas Hills, CA 91301
(818) 871-3000
(Name, address and telephone number of agent for service)
--------------------
Copy to:
MARK A. BONENFANT, ESQ.
Buchalter, Nemer, Fields & Younger
a professional corporation
601 South Figueroa Street, Suite 2400
Los Angeles, California 90017-5704
(213) 891-0700
--------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER UNIT(1) OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 100,000 shares $26.125 $2,612,500 $792.00
</TABLE>
(1) BASED ON THE CLOSING PRICE ON JULY 29, 1997 FOR THE REGISTRANT'S COMMON
STOCK AS REPORTED BY THE NATIONAL MARKET SYSTEM.
<PAGE>
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in the
registration statement and are deemed to be a part thereof from the date of
filing such documents, and 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.
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 29, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ending June 29, 1997; and
(c) The Company's Registration Statement on Form 8-A, declared
effective by the Commission on September 17, 1992.
All documents subsequently filed by the Company 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 into 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 or deemed to be
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 herein or in any other 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 amended, to constitute a part of this Registration
Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Several members of the law firm Buchalter, Nemer, Fields and
Younger, a professional corporation own shares of the Company's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware provides, in
summary, that the directors and officers of the Company may, under certain
circumstances, be indemnified by the Company 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 Company, 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 Company, 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 Company 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 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
Company are entitled to such indemnification by the Company to the extent
that such persons are successful on the merits or otherwise in defending any
such action, suit or proceeding. The Company's Bylaws provide for the
indemnification by the Company of officers and directors to the fullest
extent permitted by Section 145 of the Delaware General Corporation Law.
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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 or 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 Company'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 Company maintains a directors and officer's insurance policy for
the benefit of its directors and officers.
ITEM 8. EXHIBITS.
The Exhibits filed herewith are listed on the Exhibit Index on page 11.
ITEM 9. 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 the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement.
(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 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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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,
3
<PAGE>
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
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Calabasas Hills, State of
California, on July 15, 1997.
THE CHEESECAKE FACTORY INCORPORATED,
a Delaware Corporation
By s/ David Overton
-----------------------------------------------
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, July 15, 1997
- --------------------------------- President and Chief
David Overton Executive Officer,
(Principal Executive
and Operating Officer)
s/ Gerald W. Deitchle Executive Vice July 15, 1997
- --------------------------------- President, and Chief
Gerald W. Deitchle Financial Officer
(Principal Financial
and Accounting Officer)
s/ Thomas L. Gregory Director July 15, 1997
- ---------------------------------
Thomas L. Gregory
s/ Jerome I. Kransdorf Director July 15, 1997
- ---------------------------------
Jerome I. Kransdorf
s/ Wayne H. White Director July 15, 1997
- ---------------------------------
Wayne H. White
4
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit
- ------- -------
4 Company's 1997 Non-Employee Director Stock Option Plan
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
<PAGE>
- --------------------------------------------------------------------------------
THE CHEESECAKE FACTORY INCORPORATED
1997 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
MARCH 13, 1997
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I - Purpose................................................ 1
ARTICLE II - Definitions............................................ 1
ARTICLE III - Shares Subject to Plan................................. 3
ARTICLE IV - Administration......................................... 4
ARTICLE V - Eligibility............................................ 5
ARTICLE VI - Options................................................ 6
ARTICLE VII - Effect of Certain Changes.............................. 9
ARTICLE VIII - Amendment and Termination.............................. 12
ARTICLE IX - Issuance of Shares and Compliance with
Securities Regulations................................. 12
ARTICLE X - Application of Funds................................... 12
ARTICLE XI - Notice................................................. 13
ARTICLE XII - Term of Plan........................................... 13
ARTICLE XIII - Effectiveness of the Plan.............................. 13
ARTICLE XIV - Captions............................................... 14
ARTICLE XV - Governing Law.......................................... 14
i
<PAGE>
THE CHEESECAKE FACTORY INCORPORATED
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
ARTICLE I
PURPOSE
The purpose of the THE CHEESECAKE FACTORY INCORPORATED 1997 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN (the "Plan") is to promote the interest of the
Company and its stockholders by increasing the proprietary and vested interest
of non-employee directors in the growth and performance of the Company. The
Plan provides for awards of non-qualified options (the "Options") to
non-employee directors of the Company, as set forth in Section 5.1, below, in
accordance with Rule 16-b, promulgated under the Securities Exchange Act of
1934, as amended (the "1934 Act"). The Options shall be exercisable in whole or
in part, subject to any vesting requirements, at all times during the period
beginning on the date of grant until the earlier of (i) ten years from the date
of grant, and (ii) one year form the date on which a Grantee ceases to be an
Eligible Director. In this Plan, the terms "Parent" and "Subsidiary" mean
"Parent Corporation" and "Subsidiary Corporation," respectively, as such terms
are defined in Sections 424(e) and (f) of the Code.
ARTICLE II
DEFINITIONS
The following words and terms as used herein shall have that meaning set
forth therefor in this Article II, unless a different meaning is clearly
required by the context.
1
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Whenever appropriate, words used in the singular shall be deemed to include the
plural and vice versa, and the masculine gender shall be deemed to include the
feminine gender.
2.1 BOARD shall mean the Board of Directors of the Company.
2.2 CODE shall mean the Internal Revenue Code of 1986, as now in
effect or as hereafter amended.
2.3 COMMITTEE shall mean the Compensation Committee which may be
appointed by the Board in accordance with the provisions of Article IV to
administer the Plan.
2.4 COMMON STOCK shall mean the shares of common stock, .01 par
value, of the Company, and any other securities of the Company to the extent
provided in Article VIII.
2.5 COMPANY shall mean The Cheesecake Factory Incorporated, a
Delaware corporation, and any successor to it.
2.6 EFFECTIVE DATE shall mean the day upon which the Plan is approved
by the stockholders of the Company.
2.7 ELIGIBLE DIRECTOR shall have the meaning set forth in Section 5.1
herein.
2.8 FAIR MARKET VALUE shall have the meaning set forth in Section 6.2
herein.
2.9 GRANTEE shall mean a Non-Employee Director who is granted an
Option by the Board under this Plan.
2.10 NON-EMPLOYEE DIRECTOR shall have the meaning set forth in Rule
16b-3 promulgated under the 1934 Act, as amended.
2.11 OPTION shall mean an option granted under this Plan.
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2.12 OPTION AGREEMENT shall mean a written agreement evidencing the
right to purchase shares of Common Stock pursuant to the terms of this Plan
which agreement shall be in the form described in Article VI.
2.13 PLAN shall mean The Cheesecake Factory Incorporated 1997
Non-Employee Director Stock Option Plan, as set forth herein and as amended from
time to time.
2.14 SECURITIES ACT means the Securities Act of 1933, as amended.
2.15 SUBSIDIARY shall mean any corporation that at the time qualifies
as a subsidiary of the Company under the definition of "subsidiary corporation"
contained in Section 424(f) of the Code, as that section may be amended from
time to time.
ARTICLE III
SHARES SUBJECT TO PLAN
3.1 TOTAL NUMBER OF SHARES AVAILABLE. The maximum number of shares
of Common Stock in respect of which awards may be granted under the Plan is One
Hundred Thousand (100,000) (subject to adjustment as provided below in Section
3.3 and in Article VII hereof).
3.2 SOURCE OF SHARES. The shares of Common Stock issued upon the
exercise of an Option shall be made available, in the discretion of the Board,
either from the authorized but unissued shares of Common Stock or from any
outstanding shares of Common Stock which have been reacquired by the Company.
3.3 SHARES SUBJECT TO EXPIRED OR OTHERWISE TERMINATED OPTIONS.
Shares of Common Stock subject to options that are expired, forfeited,
terminated, canceled or settled without the delivery of Common Stock will again
be available for grant. Also, shares
3
<PAGE>
tendered to the Company in satisfaction or partial satisfaction of the exercise
price of any options will increase the number of shares available for options to
the extent permitted by Rule 16b-3 promulgated under the 1934 Act.
ARTICLE IV
ADMINISTRATION
4.1 COMMITTEE TO ADMINISTER PLAN. The Board may delegate the
exclusive control and management of the operations of the Plan to the Committee.
The Board may, however, at any time or times either (i) terminate any such
delegation of authority and assume the exclusive control and management of the
Plan, or (ii) having terminated such a delegation of authority may again
delegate the exclusive control and management of the Plan to the Committee. In
the event that and for so long as this Plan is controlled and managed by the
Board, the terms and provisions of this Plan, other than Sections 2.1, 2.3, 4.1,
4.2, shall be applied by substituting the term "Board" for "Committee" therein.
4.2 APPOINTMENT OF A COMMITTEE. In the event that the Board appoints
a Committee: (i) the Committee shall be composed solely of two or more
Non-Employee Directors; (ii) all vacancies occurring on the Committee shall be
filled with Non-Employee Directors by appointment of the Board; (iii) the
members of the Committee shall serve at the pleasure of the Board; (iv) the
Committee shall adopt such rules and regulations as it shall deem appropriate
concerning the holding of meetings and the administration of the Plan; and (v)
the entire Committee shall constitute a quorum and the actions of the entire
Committee present at a meeting, or actions approved in writing by the entire
Committee, shall be the accounts of the Committee.
4
<PAGE>
4.3 DETERMINATIONS TO BE MADE BY THE COMMITTEE. Subject to the
provisions of this Plan, the Committee shall determine: (i) the Grantees; (ii)
the number of shares of Common Stock subject to an Option; (iii) the date or
dates upon which an Option may be exercised or granted; (iv) the manner in which
an Option may be exercised; (v) such other terms to which an Option is subject
(including the manner in which it vests); and (vi) the form of any Option
Agreements (as defined in Section 6.1 below). In determining the amount and
terms of options granted under the Plan, the Committee shall review performance
measures which shall influence the number of Options granted and the vesting of
such Options.
4.4 INTERPRETATION OF PLAN. The Committee shall interpret the Plan
and from time to time may adopt such rules and regulations for carrying out the
terms and purposes of the Plan and may take such other actions in the
administration of the Plan as it deems advisable. The interpretation and
construction by the Committee of any provision of this Plan or any Option
Agreement and the determination of any question arising under this Plan, any
such rule or regulation, or any Option Agreement shall be final and binding on
all persons interested in the Plan.
4.5 LIMITED LIABILITY. Neither the Board nor any member of the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan.
ARTICLE V
ELIGIBILITY
5.1 ELIGIBLE DIRECTORS. Options may be granted under the Plan only
to non-employee directors of the Company, in accordance with Rule 16-b,
promulgated under the
5
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1934 Act, as amended, who (i) are not officers of, or otherwise employed by, the
Company, its affiliates, its parent, or its subsidiaries, if any, (ii) do not
receive compensation, either directly or indirectly, from the Company, its
affiliates, its parent, or its subsidiaries, if any, for services rendered as a
consultant or in any capacity other than as a director, except for an amount
that does not exceed the dollar amount for which disclosure would be required as
set forth in Rule 16b-3(b)(3)(i)(B), (iii) do not possess an interest in any
other transaction for which disclosure would be required as set forth in Rule
16b-3(b)(3)(i)(C), and (iv) are not engaged in a business relationship for which
disclosure would be required as set forth in Rule 16b-3(b)(3)(i)(D)
(collectively, the "Eligible Directors").
ARTICLE VI
OPTIONS
6.1 TERMS AND CONDITIONS OF OPTIONS. Each Option shall specify the
number of shares of Common Stock for which such Option shall be exercisable and
the exercise price for each such shares of Common Stock. In addition, each
Option shall be evidenced by a written agreement (an "Option Agreement"), in
substantially the form of EXHIBIT A, with such changes thereto as are consistent
with the Plan as the Board (or Committee, if one is appointed) shall deem
appropriate and shall provide in substance as follows:
6.2 NUMBER OF SHARES AND PURCHASE PRICE. Each Option Agreement shall
specify the number of shares of Common Stock covered by such Option and the
purchase price per share. The price (the "Option Price") at which each share of
Common Stock may be purchased shall be 100% of the Fair Market Value of the
shares of Common Stock on the date of the grant (as determined in accordance
with this Article VI).
6
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For purposes of the Plan, the "Fair Market Value" of shares of Common Stock
shall be equal to:
6.2.1 if such shares are publicly traded, (x) the closing
price on the business day immediately preceding the date of grant if
any trades were made on such business day and such information is
available, otherwise the average of the last bid and asked prices on
the business day immediately preceding the date of grant, in the
over-the-counter market as reported by the National Association of
Securities Dealers Automated Quotations System ("THOUSAND") or (y) if
such shares are then traded on a national securities exchange, the
closing price on the business day immediately preceding the date of
grant, if any trades were made on such business day and such
information is available, otherwise the average of the high and low
prices on the business day immediately preceding the date of grant, on
the principal national securities exchange on which it is so traded;
or
6.2.2 if there is no public trading market for such shares,
the fair value of such shares on the date of grant as reasonably
determined in good faith by the Board (or Committee, if applicable,
and with the consent of a majority of the Board) after taking into
consideration all factors which it deems appropriate, including,
without limitation, recent sale and offer prices of such shares in
private transactions negotiated at arms' length.
7
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Notwithstanding anything contained in the Plan to the contrary, all
determinations pursuant to Article VI hereof shall be made without regard to any
restriction other than a restriction which, by its terms, will never lapse.
6.3 PAYMENT OF OPTION PRICE. The Option Price of the Options may be
satisfied in cash, by a certified or cashier's check, or unless otherwise
determined by the Board, by exchanging shares of Common Stock owned by the
Grantee at their Fair Market Value, or by a combination of cash and shares of
Common Stock.
6.4 NON-TRANSFERABILITY OF OPTIONS. Each Option Agreement shall
provide that the Option granted therein shall be non-transferable and
non-assignable by the Grantee other than by will or the laws of descent and
distribution pursuant to a qualified domestic relations order, and that during
the lifetime of the Grantee such Option may be exercised only by the Grantee or
such Grantee's legal representative.
6.5 MAXIMUM TERM; DATE OF EXERCISE; TERMINATION. Each Option
Agreement shall provide that the Options shall be exercisable in whole or in
part at all times during the period beginning on the date of grant until the
earlier of (i) ten years from the date of grant, and (ii) one year form the date
on which a Grantee ceases to be an Eligible Director.
6.6 EXERCISE OF OPTIONS. Each Option Agreement shall provide that
Options shall be exercised by delivering a written notice of exercise to the
Company. Each such notice shall state the number of shares of Common Stock with
respect to which the Option is being exercised and shall be signed by the person
(or persons) exercising the Option and, in the event the Option is being
exercised by any person other than the Grantee, shall be accompanied by proof,
satisfactory to counsel for the Company, of the right of such person
8
<PAGE>
to exercise the Option. The exercise price for each Option shall be paid in
full for the number of shares of Common Stock specified in the notice as
provided in this Section 6.6.
The date of exercise of an Option shall be the date on which written notice
of exercise shall have been delivered to the Company, but the exercise of an
Option shall not be effective until the person (or persons) exercising the
Option shall have complied with all the provisions of the Option Agreement
governing the exercise of the Option. The Company shall deliver as soon as
practicable after receipt of notice and payment, certificates for the shares of
Common Stock subject to the Option. No one shall be deemed to be the holder of
any shares of Common Stock subject to an Option, or have any other rights as a
stockholder, unless and until certificates for the shares of such Common Stock
are issued to that person.
6.7 OTHER PROVISIONS. The Option Agreement may include such other
terms and conditions, not inconsistent with this Plan, as the Board in its sole
discretion shall determine.
ARTICLE VII
EFFECT OF CERTAIN CHANGES
7.1 ANTI-DILUTION. If there is any change in the number of shares of
Common Stock through the declaration of stock dividends or through a
recapitalization which results in stock splits or reverse stock splits, the
Board shall make corresponding adjustments to the number of shares of Common
Stock available for Options, the number of such shares covered by outstanding
Options, and the price per share of such Options in order to appropriately
reflect any increase or decrease in the number of issued shares of Common
9
<PAGE>
Stock; provided, however, that any fractional shares of Common Stock resulting
from such adjustment shall be eliminated. Any determination made by the Board
relating to such adjustments shall be final, binding and conclusive.
7.2 CHANGE IN PAR VALUE. In the event of a change in the Common
Stock of the Company, as constituted as of the date of this Plan, which is
limited to a change of all of its authorized shares with par value into the same
number of shares with a different par value or without par value, the shares
resulting from any such change shall be deemed to be the Common Stock within the
meaning of the Plan.
7.3 MERGERS AND CONSOLIDATIONS. Notwithstanding the other Sections
of this Article VII, upon the dissolution or liquidation of the Company, or upon
any reorganization, merger or consolidation of the Company with one or more
corporations where the Company is the surviving corporation and the stockholders
of the Company immediately prior to such transaction do not own at least eighty
percent (80%) of the Company's Common Stock immediately after such transaction,
or upon any reorganization, merger or consolidation of the Company with one or
more corporations where the Company is not the surviving corporation, or upon a
sale of substantially all of the assets or eighty percent (80%) or more of the
then outstanding shares of Common Stock of the Company to another corporation or
entity, (any such reorganization, merger, consolidation, sale of assets, or sale
of shares of Common Stock being hereinafter referred to as the "Transaction"),
the Plan shall terminate; provided however, that
(i) any Options theretofore granted and outstanding under the
Plan shall accelerate and become immediately exercisable in full and
shall remain exercisable until the effective date of such Transaction;
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(ii) the termination of the Plan, and any exercise of any Option
(to the extent that the holder's right to exercise such Option has
been accelerated by the operation of Section 7.3(i)), shall be subject
to and conditioned upon the consummation of the Transaction to which
such termination and acceleration relates, and if, for any reason,
such Transaction is abandoned, exercise of the Option shall be void
and such Option shall thereafter be exercisable only as permitted by
the Plan and the Option Agreement, which shall remain in full force
and effect.
For purposes of applying this Section 7.3, the Fair Market Value of shares
of Common Stock underlying the Options shall be determined as of the time the
Option with respect to such shares is granted. The Company shall use its best
efforts to give each Grantee written notice of any proposed Transaction at least
thirty (30) days prior to the effective date of any such Transaction. Any
Option not exercised by the time the Transaction legally becomes effective shall
thereupon terminate.
7.4 RIGHTS OF PARTICIPANTS. Except as hereinbefore expressly
provided in this Article VII, the Grantee shall have no rights by reason of any
subdivision or consolidation of shares of stock of any class or the payment of
any stock dividend or any other increase or decrease in the number of shares of
stock of any class or by reason of any dissolution, liquidation, merger, or
consolidation or spin-off of assets or stock of another corporation, and any
issue by the Company of shares of stock of any class, or securities convertible
into shares of stock of any class, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number or price of shares of
Common Stock subject to an Option. The grant of an Option shall not affect in
any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structures or to merge or to consolidate or to dissolve, liquidate or sell or
transfer all or part of its business or assets.
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ARTICLE VIII
AMENDMENT AND TERMINATION
The Board shall have the right to amend, suspend or terminate this Plan at
any time, provided that unless first approved by the stockholders of the
Company, no amendment shall be made to the Plan (except to conform the Plan and
the Option Agreements thereunder to changes in the Code or governing law) which:
(i) increases the number of shares of Common Stock which may be purchased
pursuant to the Options, either individually or in the aggregate, (ii) changes
the requirement that Option grants be priced at Fair Market Value, (iii)
modifies in any respect the class of individuals who constitute Eligible
Directors or (iv) materially increases benefits.
ARTICLE IX
ISSUANCE OF SHARES AND COMPLIANCE WITH SECURITIES REGULATIONS
The obligation of the Company to sell and deliver the shares of Common
Stock pursuant to Options granted under this Plan shall be subject to all
applicable laws, regulations, rules and approvals, including, but not by way of
limitation, the effectiveness of a registration statement under the Securities
Act of 1933, as amended, if deemed necessary or appropriate by the Board, to
register the shares of Common Stock reserved for issuance upon exercise of
Options under such Act.
ARTICLE X
APPLICATION OF FUNDS
Any proceeds received by the Company as a result of the exercise of Options
granted under the Plan may be used for any valid corporate purpose.
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ARTICLE XI
NOTICE
Any notice to the Company required under this Plan shall be in writing and
shall either be delivered in person or sent by registered or certified mail,
return receipt requested, postage prepaid, to:
The Cheesecake Factory Incorporated
26950 Agoura Road
Calabasas Hills, California 91301
Attention: Gerald Deitchle, CFO
ARTICLE XII
TERM OF PLAN
The Plan shall terminate ten (10) years from the date upon which it is
approved by the stockholders of the Company or on such earlier date as may be
determined by the Board. In any event, termination shall be deemed to be
effective as of the close of business on the day of termination. No Options may
be granted after such termination. Termination of the Plan, however, shall not
affect the rights of Grantees under Options previously granted to them, and all
unexpired Options shall continue in full force and operation after termination
of the Plan until they lapse or terminate by their own terms and conditions.
ARTICLE XIII
EFFECTIVENESS OF THE PLAN
The Plan shall become effective upon adoption by the Board; provided,
however, that the Plan shall be submitted for approval by the holders of a
majority of the voting stock of the Company at the Company's next Annual Meeting
of Stockholders to be held in 1997. In the event the stockholders shall fail to
approve the Plan, it and all Options granted
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thereunder shall be and become null and void. Notwithstanding any other
provision of the Plan to the contrary, no Options granted under the Plan may be
exercised until after such stockholder approval.
ARTICLE XIV
CAPTIONS
The use of captions in this Plan is for convenience. The captions are not
intended to provide substantive rights.
ARTICLE XV
GOVERNING LAW
All questions concerning the construction, interpretation and validity of
this Plan and the instruments evidencing the Options granted hereunder shall be
governed by and construed and enforced in accordance with the domestic laws of
the State of Delaware, without giving effect to any choice or conflict of law
provision or rule (whether in the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware. In furtherance of the foregoing, the internal law of the
State of Delaware will control the interpretation and construction of this Plan,
even if under such jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
As adopted by the Board of Directors of THE CHEESECAKE FACTORY INCORPORATED
on March 13, 1997.
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[LETTERHEAD]
Securities and Exchange Commission
Division of Corporate Finance
450 West Fifth Street, N.W.
Washington, D.C. 20549
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 100,000
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 1997 Non-employee Director 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 reviews, 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.
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.
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BUCHALTER, NEMER, FIELDS & YOUNGER
The Cheesecake Factory Incorporated
July 31, 1997
Page 2
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,
/s/ Buchalter, Nemer, Fields & Younger
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated February 24, 1997 on our audits of the
consolidated financial statements of The Cheesecake Factory Incorporated and
Subsidiaries as of December 29, 1996 and December 31, 1995 and for each of the
three years in the period ended December 29, 1996, which report is included in
the Company's Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Los Angeles, California
July 21, 1997
