-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WsVr8cTG/rjSVYQw8nd6MmDMiVPgMGwmgaUFJltNnzeAohQp+fkUSyMqt+VbEONE vG2BRYaGf+jHDhv90W+HMg== 0001104659-09-000327.txt : 20090105 0001104659-09-000327.hdr.sgml : 20090105 20090105163015 ACCESSION NUMBER: 0001104659-09-000327 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20081230 ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20090105 DATE AS OF CHANGE: 20090105 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CHEESECAKE FACTORY INC CENTRAL INDEX KEY: 0000887596 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 510340466 STATE OF INCORPORATION: DE FISCAL YEAR END: 0101 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-20574 FILM NUMBER: 09505645 BUSINESS ADDRESS: STREET 1: 26901 MALIBU HILLS RD CITY: CALABASAS HILLS STATE: CA ZIP: 91301 BUSINESS PHONE: 818 871-8342 MAIL ADDRESS: STREET 1: 26901 MALIBU HILLS RD CITY: CALABASAS HILLS STATE: CA ZIP: 91301 FORMER COMPANY: FORMER CONFORMED NAME: CHEESECAKE FACTORY INCORPORATED DATE OF NAME CHANGE: 19930328 8-K 1 a08-31306_18k.htm 8-K

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 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):

December 30, 2008

 

THE CHEESECAKE FACTORY INCORPORATED

(Exact Name of Registrant as Specified in its Charter)

 

Delaware

(State or other jurisdiction
of incorporation)

 

0-20574

(Commission File Number)

 

51-0340466

(IRS Employer Identification No.)

 

26901 Malibu Hills Road
Calabasas Hills, California 91301

(Address of principal executive offices) (Zip Code)

 

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 communications 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 communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14.d-2(b))

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

 

 

 


 

SECTION 5

– CORPORATE GOVERNANCE AND MANAGEMENT

 

 

ITEM 5.02

DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS

 

On December 30, 2008, the Compensation Committee of the Board of Directors of The Cheesecake Factory Incorporated approved amendments to the employment agreements with the following executive officers: David Overton, Max S. Byfuglin and Debby R. Zurzolo. The amendments were made to change the definition of “change of control” under each agreement so that certain compensation which may become payable under the agreements would not be subject to taxation under Section 409A of the Internal Revenue Code.

 

The forms of these amendments are filed as Exhibits 99.1, 99.2 and 99.3 to this report and are incorporated herein by reference.

 

SECTION 9

– FINANCIAL STATEMENTS AND EXHIBITS

 

 

Item 9.01

Financial Statements and Exhibits

 

(d)   Exhibits

 

99.1         Form of Third Amendment to Employment Agreement with David Overton

 

99.2         Form of Second Amendment to Employment Agreement with Max S. Byfuglin

 

99.3         Form of Second Amendment to Employment Agreement with Debby R. Zurzolo

 

2


 

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:    January 5, 2009

THE CHEESECAKE FACTORY INCORPORATED

 

 

 

 

 

By:

/s/ CHERYL M. SLOMANN

 

 

Cheryl M. Slomann

 

 

Interim Chief Financial Officer, Vice President and

 

 

Controller

 

3


 

EXHIBIT INDEX

 

Exhibit

 

Description

99.1

 

Form of Third Amendment to Employment Agreement with David Overton

 

 

 

99.2

 

Form of Second Amendment to Employment Agreement with Max S. Byfuglin

 

 

 

99.3

 

Form of Second Amendment to Employment Agreement with Debby R. Zurzolo

 

4

 EX-99.1 2 a08-31306_1ex99d1.htm EX-99.1

Exhibit 99.1

 

Third Amendment

to

Employment Agreement

 

This Third Amendment to Employment Agreement (“Third Amendment”) is entered into as of December 30, 2008 by and between The Cheesecake Factory Incorporated, a Delaware corporation (the “Company”) and David Overton (the “Employee”).

 

WHEREAS, the Company and the Employee have previously entered into an Employment Agreement as of December 31, 2003, as amended by a First Amendment as of December 6, 2005, and a Second Amendment as of December 4, 2007 (the “Employment Agreement”);

 

WHEREAS, the Company and Employee each desire to amend the Employment Agreement.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and intending to be legally bound hereby, the Company and the Employee agree as follows:

 

1.                                       Section 12 (f) of the Employment Agreement is deleted in its entirety and the following provision substituted in its place:

 

“ (f)         A “Change of Control” occurs if:

 

 (i)           any Person (other than the Executive) or that Person’s Affiliate is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 50% (or 33 1/3% if acquired during a 12 month period) or more of the combined voting power of the Company’s then outstanding voting securities (“Voting Securities”); or

 

 (ii)          the stockholders of the Company approve a merger or consolidation of the Company with any other corporation (or other entity) in which 40% or more of the company’s assets are transferred, other than:

 

 (1)          a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 66 2/3% of the combined voting power of the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation;

 

 (2)          a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 33 1/3% of the combined voting power of the Company’s then outstanding Voting Securities; or

 


 

 (3)          a merger or consolidation that would result in the directors of the Company (who were directors immediately prior thereto) continuing to constitute at least 50% of all directors of the surviving entity after such merger or consolidation.

 

In this subparagraph (ii), “surviving entity” shall mean only an entity in which all the Company’s stockholders immediately before such merger or consolidation (determined without taking into account any stockholders properly exercising appraisal or similar rights) become stockholders by the terms of such merger or consolidation, and the phrase “directors of the Company (who were directors immediately prior thereto)” shall include only individuals who were directors of the Company at the beginning of the 24 consecutive month period preceding the date of such merger or consolidation.

 

(iii)          the stockholders of the Company approve a plan of complete liquidation or an agreement for the sale or disposition of all or substantially all of the Company’s assets; or

 

(iv)          during any period of 12 consecutive months, individuals, who at the beginning of such period constitute the Board of Directors of the Company, and any new director whose election by the Board of Directors, or whose nomination for election by the Company’s stockholders, was approved by a vote of at least one-half (1/2) of the directors then in office (other than in connection with a contested election), cease for any reason to constitute at least a majority of the Board of Directors.

 

.”

 

2.             Capitalized terms used without other definition in this Second Amendment shall have the meanings given to them in the Employment Agreement.

 

3.             Except as modified by this Second Amendment, all other terms and conditions of the Employment Agreement shall remain in full force and effect.

 

4.             The validity, interpretation, construction and performance of this Second Amendment shall be governed by the laws of the State of California without regard to its conflicts of law principles.

 

 

“COMPANY”

 

“EMPLOYEE”

 

 

 

The Cheesecake Factory Incorporated

 

David Overton

A Delaware corporation

 

 

 

 

 

 

 

 

By:

 

 

 

Printed Name:

 

 

 

Title:

 

 

 

 

2

 EX-99.2 3 a08-31306_1ex99d2.htm EX-99.2

Exhibit 99.2

 

Second Amendment

to

Employment Agreement

 

This Second Amendment to Employment Agreement (“Second Amendment”) is entered into as of December 30, 2008 by and between The Cheesecake Factory Incorporated, a Delaware corporation (the “Company”) and Max Byfuglin (the “Employee”).

 

WHEREAS, the Company and the Employee have previously entered into an Employment Agreement as of January 23, 2006, as amended by a First Amendment as of December 4, 2007 (the “Employment Agreement”);

 

WHEREAS, the Company and Employee each desire to amend the Employment Agreement.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and intending to be legally bound hereby, the Company and the Employee agree as follows:

 

1.             Section 9 (e) of the Employment Agreement is deleted in its entirety and the following provision substituted in its place:

 

“(e) A “Change of Control” occurs if:

 

(i)            any Person (other than the Executive) or that Person’s Affiliate is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 50% (or 33 1/3% if acquired during a 12 month period) or more of the combined voting power of the Company’s then outstanding voting securities (“Voting Securities”); or

 

(ii)           the stockholders of the Company approve a merger or consolidation of the Company with any other corporation (or other entity) in which 40% or more of the company’s assets are transferred, other than:

 

(1)           a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation;

 

(2)           a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company’s then outstanding Voting Securities; or

(3)           a merger or consolidation that would result in the directors of the Company (who were directors immediately prior thereto) continuing to constitute at least 50% of all directors of the surviving entity after such merger or consolidation.

 


 

In this subparagraph (ii), “surviving entity” shall mean only an entity in which all the Company’s stockholders immediately before such merger or consolidation (determined without taking into account any stockholders properly exercising appraisal or similar rights) become stockholders by the terms of such merger or consolidation, and the phrase “directors of the Company (who were directors immediately prior thereto)” shall include only individuals who were directors of the Company at the beginning of the 24 consecutive month period preceding the date of such merger or consolidation.

 

(iii)          the stockholders of the Company approve a plan of complete liquidation or an agreement for the sale or disposition of all or substantially all of the Company’s assets; or

 

(iv)          during any period of 12 consecutive months, individuals, who at the beginning of such period constitute the Board of Directors of the Company, and any new director whose election by the Board of Directors, or whose nomination for election by the Company’s stockholders, was approved by a vote of at least one-half (1/2) of the directors then in office (other than in connection with a contested election), cease for any reason to constitute at least a majority of the Board of Directors.”

 

2.             Capitalized terms used without other definition in this Second Amendment shall have the meanings given to them in the Employment Agreement.

 

3.             Except as modified by this Second Amendment, all other terms and conditions of the Employment Agreement shall remain in full force and effect.

 

4.             The validity, interpretation, construction and performance of this Second Amendment shall be governed by the laws of the State of California without regard to its conflicts of law principles.

 

 

“COMPANY”

 

“EMPLOYEE”

 

 

 

The Cheesecake Factory Incorporated

 

Max Byfuglin

A Delaware corporation

 

 

 

 

 

 

 

 

By:

 

 

 

Printed Name:

 

 

 

Title:

 

 

 

 

2

 EX-99.3 4 a08-31306_1ex99d3.htm EX-99.3

Exhibit 99.3

 

Second Amendment

to

Employment Agreement

 

This Second Amendment to Employment Agreement (“Second Amendment”) is entered into as of December 30, 2008 by and between The Cheesecake Factory Incorporated, a Delaware corporation (the “Company”) and Debby Zurzolo (the “Employee”).

 

WHEREAS, the Company and the Employee have previously entered into an Employment Agreement as of January 23, 2006, as amended by a First Amendment as of December 4, 2007 (the “Employment Agreement”);

 

WHEREAS, the Company and Employee each desire to amend the Employment Agreement.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and intending to be legally bound hereby, the Company and the Employee agree as follows:

 

1.             Section 9 (e) of the Employment Agreement is deleted in its entirety and the following provision substituted in its place:

 

“(e) A “Change of Control” occurs if:

 

(i)            any Person (other than the Executive) or that Person’s Affiliate is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 50% (or 33 1/3% if acquired during a 12 month period) or more of the combined voting power of the Company’s then outstanding voting securities (“Voting Securities”); or

 

(ii)           the stockholders of the Company approve a merger or consolidation of the Company with any other corporation (or other entity) in which 40% or more of the company’s assets are transferred, other than:

 

(1)           a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation;

 

(2)           a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person acquires more than 50% of the combined voting power of the Company’s then outstanding Voting Securities; or

 

(3)           a merger or consolidation that would result in the directors of the Company (who were directors immediately prior thereto) continuing to constitute at least 50% of all directors of the surviving entity after such merger or consolidation.

 


 

In this subparagraph (ii), “surviving entity” shall mean only an entity in which all the Company’s stockholders immediately before such merger or consolidation (determined without taking into account any stockholders properly exercising appraisal or similar rights) become stockholders by the terms of such merger or consolidation, and the phrase “directors of the Company (who were directors immediately prior thereto)” shall include only individuals who were directors of the Company at the beginning of the 24 consecutive month period preceding the date of such merger or consolidation.

 

(iii)          the stockholders of the Company approve a plan of complete liquidation or an agreement for the sale or disposition of all or substantially all of the Company’s assets; or

 

(iv)          during any period of 12 consecutive months, individuals, who at the beginning of such period constitute the Board of Directors of the Company, and any new director whose election by the Board of Directors, or whose nomination for election by the Company’s stockholders, was approved by a vote of at least one-half (1/2) of the directors then in office (other than in connection with a contested election), cease for any reason to constitute at least a majority of the Board of Directors.”

 

2.             Capitalized terms used without other definition in this Second Amendment shall have the meanings given to them in the Employment Agreement.

 

3.             Except as modified by this Second Amendment, all other terms and conditions of the Employment Agreement shall remain in full force and effect.

 

4.             The validity, interpretation, construction and performance of this Second Amendment shall be governed by the laws of the State of California without regard to its conflicts of law principles.

 

 

“COMPANY”

 

“EMPLOYEE”

 

 

 

The Cheesecake Factory Incorporated

 

Debby Zurzolo

A Delaware corporation

 

 

 

 

 

 

 

 

By:

 

 

 

Printed Name:

 

 

 

Title:

 

 

 

 

2

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