<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 2 TO
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 of (I.R.S. Employer Identification No.)
incorporation or organization)
26950 AGOURA ROAD, CALABASAS HILLS, CALIFORNIA 91301
(Address of Registrant's Principal Executive Offices) (Zip Code)
------------------------------------------
THE CHEESECAKE FACTORY INCORPORATED
1992 PERFORMANCE EMPLOYEE STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
GERALD W. DEITCHLE
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
THE CHEESECAKE FACTORY INCORPORATED
26950 Agoura Road
Calabasas Hills, California 91301
(818) 871-3000
(Name, address and telephone number of agent for service)
------------------------------------------
With a 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
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER UNIT (2) OFFERING PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value per
share 1,200,000 shares $22.8125 $27,375,000 $7,610.25
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as
amended, this registration statement also covers any additional securities
to be offered or issued in connection with a stock split, stock dividend or
similar transaction.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) and is calculated based on the closing price of the
Company's Common Stock on The NASDAQ Stock Market on January 22, 1999.
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PART II-INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The information contained in the S-8 Registration Statement filed by The
Cheesecake Factory Incorporated, a Delaware corporation (the "Registrant"),
Registration File No. 33-88414 filed with the Securities and Exchange Commission
on July 24, 1996 (the "1996 Registration") is incorporated herein by reference.
This Registration Statement relates to an amendment to the Registrant's 1992
Performance Employee Stock Option Plan (the "Performance Plan") to increase the
aggregate number of shares issuable thereunder from 2,756,250 to 3,956,250 as
approved by the Registrant's stockholders at the 1998 Annual Meeting of
Stockholders on May 19, 1998.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed or to be filed by the Registrant
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference herein:
(a) The Registrant's Annual Report on Form 10-K as filed with the
Commission for the year ended December 30, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 29, 1998.
All other documents filed by the Registrant subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment to this
Registration Statement 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 respective dates 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
superceded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed documents which also is or is
deemed to be incorporated by reference herein modifies or supercedes such
statement. Any such statement so modified or superceded shall not be deemed,
except as so modified or superceded, to constitute a part of this Registration
Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock offered hereby will be passed upon for the
Company by Buchalter, Nemer, Fields & Younger, a Professional corporation,
Los Angeles, California.
ITEM 8. EXHIBITS.
The information on Item 8 "Exhibits" in the previous S-8 is supplemented as
follows:
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------ ----------------------
<S> <C> <C>
5.1 - Opinion of Buchalter, Nemer, Fields & Younger, a Professional
Corporation
23.1 - Consent of Independent Accountants
23.2 - Consent of Buchalter, Nemer, Fields & Younger, a Professional
Corporation (included in its opinion filed as Exhibit 5.1)
99.1 - Amendment to The Cheesecake Factory Incorporated 1992 Performance
Employee Stock Option Plan.
</TABLE>
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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-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 this 28th day
of January, 1999.
THE CHEESECAKE FACTORY INCORPORATED
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 has been signed by the following persons in the capacities and on
the date indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ David Overton Chairman of the Board, President January 28, 1999
---------------------------------------- and Chief Executive Officer
David Overton
/s/ Gerald W. Deitchle Executive Vice President, Finance January 28, 1999
---------------------------------------- and Chief Financial Officer
Gerald W. Deitchle
/s/ Thomas L. Gregory Director January 26, 1999
----------------------------------------
Thomas L. Gregory
Director January __, 1999
----------------------------------------
Jerome I. Kransdorf
/s/ Wayne H. White Director January 27, 1999
----------------------------------------
Wayne H. White
</TABLE>
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EXHIBIT 5.1
File Number: C2902-0001
Direct Dial Number: (213) 891-5020
E-Mail Address: [email protected]
January 28, 1999
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 1,200,000
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 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 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.
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.
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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.
Very truly yours,
BUCHALTER, NEMER, FIELDS & YOUNGER
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
of The Cheesecake Factory Incorporated on Form S-8 of our report dated
February 25, 1998 on our audits of the consolidated financial statements of The
Cheesecake Factory Incorporated and Subsidiaries as of December 30, 1997 and
December 29, 1996 and for each of the three years in the period ended
December 30, 1997, which report is included in the Company's Annual Report on
Form 10-K.
PricewaterhouseCoopers LLP
Los Angeles, California
January 28, 1999
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<PAGE>
EXHIBIT 99.1
AMENDMENT TO
THE CHEESECAKE FACTORY INCORPORATED
1992 PERFORMANCE EMPLOYEE STOCK OPTION PLAN
The Cheesecake Factory Incorporated Performance Employee Stock Option Plan, as
adopted at The Cheesecake Factory Incorporated 1993 Annual Meeting, is amended
as provided herein and except as so amended, the 1992 Performance Employee Stock
Option Plan remains in full force and effect.
1. Article III Paragraph 3.1 is amended and restated in its entirety to
read as follows:
3.1 NUMBER OF SHARES AVAILABLE. The total number of shares of Common
Stock which are available for granting Options hereunder shall be
3,956,250 (subject to adjustment as provided below in Section 3.3 and
in Article VIII hereof)."
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