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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 29, 1997
REGISTRATION NO. 333-36181
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3/A
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)
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DELAWARE 51-0340466
(State or Other jurisdiction (I.R.S. Employer
of Incorporation or Identification
Organization) No.)
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26950 AGOURA ROAD
CALABASAS HILLS, CALIFORNIA 91301
(818) 871-3000
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
GERALD W. DEITCHLE
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
26950 AGOURA ROAD
CALABASAS HILLS, CALIFORNIA 91301
(818) 871-3000
(Name, address including zip code, and telephone number, including
area code, of agent for service)
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COPIES TO:
MARK A. BONENFANT, ESQ. EDWARD S. ROSENTHAL, ESQ.
BUCHALTER, NEMER, FIELDS & YOUNGER FRIED, FRANK, HARRIS, SHRIVER &
A PROFESSIONAL CORPORATION JACOBSON
601 SOUTH FIGUEROA STREET, SUITE 2400 350 SOUTH GRAND AVENUE
LOS ANGELES, CALIFORNIA 90017-5704 LOS ANGELES, CALIFORNIA 90071
(213) 891-0700 (213) 473-2000
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _______
If this Form is a post-effective amendment filed pursuant to Rule 462(b)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offer. / / _______
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table shows the expenses, other than Underwriting discounts
and commissions, to be incurred in connection with the issuance and distribution
of the securities being registered by the Company and the Selling Stockholders.
Such expenses will be paid by the Company.
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SEC Registration Fee............................................ $ 26,402
NASD Filing Fee................................................. $ 9,213
Blue Sky Fees and Expenses...................................... *
Legal Fees and Expenses......................................... *
Accounting Fees and Expenses.................................... *
Printing and Engraving Expenses................................. *
Miscellaneous Expenses.......................................... *
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*To be supplied by amendment.
ITEM 14. 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. No indemnification shall be made,
however, against expenses with respect to any claim issued or matter as to which
such person 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.
The Company has entered into agreements to indemnify its directors and
officers in addition to the indemnification provided for in the Bylaws. These
agreements, among other things, indemnify the Company's directors and officers
for certain expenses (including attorneys' fees), judgments, fines and
settlement amounts incurred by such person in any action or proceeding,
including any action by or in the right of the Company, on account of services
as a director or officer of the Company or as a director or officer of any
subsidiary of the Company, or as a director or officer of any other company or
enterprise that the person provides services to at the request of the Company.
The Company believes that these provisions and agreements are necessary to
attract and retain qualified persons as directors and officers.
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
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purchase or redemptions. The Company's Certificate of Incorporation provides for
the elimination of personal liability of its directors to the full extent
permitted by section 102 of the Delaware General Corporation Law.
ITEM 16. EXHIBITS.
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*1.1 Underwriting Agreement
*5.1 Opinion of Buchalter, Nemer, Fields & Younger, a professional
corporation
**23.1 Consent of Coopers & Lybrand L.L.P.
*23.2 Consent of Buchalter, Nemer, Fields & Younger, a professional
corporation (incorporated as Exhibit 5.1)
**24.1 Power of Attorney (included on page II-3 of Registration Statement)
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* To be filed by amendment
** Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned Company ("the Registrant") hereby undertakes that:
A. 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
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.
B. (1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
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. Insofar as indemnification for liabilities arising under the Act 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 expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Los Angeles, State of California on 25th September,
1997.
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THE CHEESECAKE FACTORY INCORPORATED
By:
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Gerald W. Deitchle
EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
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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 dates indicated.
NAME TITLE DATE
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* /s/ DAVID Chairman of the Board,
OVERTON Chief Executive Officer,
- ------------------------------ and President (Principal September 25, 1997
David Overton Executive Officer)
Executive Vice President
and Chief Financial
- ------------------------------ Officer (Principal September 25, 1997
Gerald W. Deitchle Financial and Accounting
Officer)
- ------------------------------ Director September 25, 1997
Thomas L. Gregory
* /s/ JEROME I.
KRANSDORF
- ------------------------------ Director September 25, 1997
Jerome I. Kransdorf
* /s/ WAYNE H.
WHITE
- ------------------------------ Director September 25, 1997
Wayne H. White
*By -------------------------
Gerald W. Deitchle
ATTORNEY-IN-FACT
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