10-Q

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

___________

FORM 10-Q

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 28, 2004

or

o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Commission File Number 0-20574

THE CHEESECAKE FACTORY INCORPORATED

(Exact Name of Registrant as Specified in its Charter)

Delaware (State or other jurisdiction of incorporation or organization)	51-0340466 (IRS Employer Identification No.)
26950 Agoura Road Calabasas Hills, California (Address of principal executive offices)	91301 (Zip Code)

Registrant’s telephone number, including area code: (818) 871-3000

___________

Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o

Indicate by check mark whether the Registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). Yes x No o

As of October 20, 2004, 51,856,641 shares of the Registrant’s Common Stock, $.01 par value, were outstanding.

THE CHEESECAKE FACTORY INCORPORATED AND SUBSIDIARIES

INDEX

			Page Number
PART I.	FINANCIAL INFORMATION
	Item 1.	Financial Statements:
		Consolidated Balance Sheets – September 28, 2004 and December 30, 2003	1
		Consolidated Statements of Operations – Thirteen and thirty-nine weeks ended September 28, 2004 and September 30, 2003	2
		Consolidated Statement of Stockholders’ Equity – Thirty-nine weeks ended September 28, 2004	3
		Consolidated Statements of Cash Flows – Thirty-nine weeks ended September 28, 2004 and September 30, 2003	4
		Notes to Consolidated Financial Statements – September 28, 2004	5
	Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	8
	Item 3.	Quantitative and Qualitative Disclosures about Market Risk	17
	Item 4.	Controls and Procedures	17
PART II.	OTHER INFORMATION
	Item 1.	Legal Proceedings	19
	Item 2.	Unregistered Sales of Equity Securities and Use of Proceeds	19
	Item 6.	Exhibits	20
Signatures			21
Index to Exhibits			22

PART I. FINANCIAL INFORMATION

Item 1. Financial Statements

THE CHEESECAKE FACTORY INCORPORATED AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS

(In thousands, except share data)

	September 28, 2004			December 30, 2003
	(Unaudited)
ASSETS
Current assets:
Cash and cash equivalents	$	6,454		$	15,167
Investments and marketable securities		28,199			33,988
Accounts receivable		6,742			7,360
Other receivables		33,329			23,416
Inventories		24,141			20,434
Prepaid expenses		5,851			10,403
Deferred income taxes		4,619			4,725
Total current assets		109,335			115,493
Property and equipment, net		440,205			359,969
Other assets:
Marketable securities		87,313			87,852
Other receivables		9,016			7,371
Trademarks		2,231			2,046
Other		15,052			12,077
Total other assets		113,612			109,346
Total assets	$	663,152		$	584,808
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable	$	21,760		$	25,996
Income taxes payable		12,469			—
Other accrued expenses		59,999			55,558
Total current liabilities		94,228			81,554
Deferred income taxes		35,721			35,721
Other noncurrent liabilities		10,717			9,631
Commitments and contingencies (Note C)
Stockholders’ equity:
Preferred stock, $.01 par value, 5,000,000 shares authorized; none issued		—			—
Junior participating cumulative preferred stock, $.01 par value, 150,000
shares authorized; none issued		—			—
Common stock, $.01 par value, 150,000,000 shares authorized; 53,157,286 and
52,126,185 issued at September 28, 2004 and December 30, 2003, respectively		531			521
Additional paid-in capital		256,104			229,157
Retained earnings		292,865			245,612
Unrealized loss on available-for-sale securities		(528	)		(161	)
Treasury stock, 1,300,645 and 1,077,300 shares at cost at September 28, 2004
and December 30, 2003, respectively		(26,486	)		(17,227	)
Total stockholders’ equity		522,486			457,902
Total liabilities and stockholders’ equity	$	663,152		$	584,808

The accompanying notes are an integral part of these consolidated financial statements.

1

THE CHEESECAKE FACTORY INCORPORATED AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF OPERATIONS

(In Thousands, Except Net Income Per Share Data)

(Unaudited)

	Thirteen Weeks Ended September 28, 2004		Thirteen Weeks Ended September 30, 2003		Thirty-nine Weeks Ended September 28, 2004		Thirty-nine Weeks Ended September 30, 2003
Revenues:
Restaurant sales	$	235,018	$	187,655	$	669,295	$	531,647
Bakery sales to other foodservice
operators, retailers and distributors .		12,665		10,177		33,840		27,665
Total revenues		247,683		197,832		703,135		559,312
Costs and expenses:
Restaurant cost of sales		58,756		45,492		168,315		127,122
Bakery cost of sales		6,405		4,664		17,591		12,767
Labor expenses		76,822		60,395		217,514		174,557
Other operating costs and expenses		60,799		46,487		163,553		129,720
General and administrative expenses		10,022		9,075		29,660		26,859
Depreciation and amortization expenses		9,034		6,975		25,478		20,241
Preopening costs		6,867		4,066		10,935		7,368
Total costs and expenses		228,705		177,154		633,046		498,634
Income from operations		18,978		20,678		70,089		60,678
Interest income, net		605		987		1,899		2,909
Other income, net		116		665		821		2,146
Income before income taxes		19,699		22,330		72,809		65,733
Income tax provision		6,915		7,972		25,556		23,467
Net income	$	12,784	$	14,358	$	47,253	$	42,266
Net income per share:
Basic	$	0.25	$	0.28	$	0.91	$	0.84
Diluted	$	0.24	$	0.28	$	0.89	$	0.82
Weighted average shares outstanding:
Basic		51,846		50,522		51,687		50,270
Diluted		52,853		51,900		52,882		51,644

The accompanying notes are an integral part of these consolidated financial statements.

2

THE CHEESECAKE FACTORY INCORPORATED AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY

(In Thousands)

(Unaudited)

	Common Stock		Additional Paid-in Capital		Retained Earnings		Unrealized Loss on Available-for-Sale Securities			Treasury Stock			Total
Balance, December 30, 2003	$	521	$	229,157	$	245,612	$	(161	)	$	(17,227	)	$	457,902
Comprehensive income:
Net income		—		—		47,253		—			—
Net unrealized loss		—		—		—		(367	)		—
Total comprehensive income														46,886
Issuance of common stock pursuant to stock
option plan		10		15,001		—		—			—			15,011
Tax benefit related to stock options
exercised		—		11,946		—		—			—			11,946
Purchase of treasury stock		—		—		—		—			(9,259	)		(9,259	)
Balance, September 28, 2004	$	531	$	256,104	$	292,865	$	(528	)	$	(26,486	)	$	522,486

The accompanying notes are an integral part of these consolidated financial statements.

3

THE CHEESECAKE FACTORY INCORPORATED AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS

(In thousands)

(Unaudited)

	Thirty-nine Weeks Ended September 28, 2004			Thirty-nine Weeks Ended September 30, 2003
Cash flows from operating activities:
Net income	$	47,253		$	42,266
Adjustments to reconcile net income to cash provided
by operating activities:
Depreciation and amortization expenses		25,478			20,241
Gain on sale of available-for-sale securities		(212	)		(1,850	)
Deferred income taxes		334			(730	)
Tax benefit related to stock options exercised		11,946			5,935
Changes in assets and liabilities:
Accounts receivable		618			(1,048	)
Other receivables		(11,558	)		(9,169	)
Inventories		(3,707	)		(6,022	)
Prepaid expenses		4,552			2,414
Trademarks		(185	)		(77	)
Other		(3,106	)		(3,472	)
Accounts payable		(4,236	)		7,414
Income taxes payable		12,469			4,961
Other accrued expenses		5,527			5,163
Cash provided by operating activities		85,173			66,026
Cash flows from investing activities:
Additions to property and equipment		(105,583	)		(66,699	)
Investments in available-for-sale securities		(81,390	)		(115,203	)
Sales of available-for-sale securities		87,335			100,376
Cash used in investing activities		(99,638	)		(81,526	)
Cash flows from financing activities:
Issuance of common stock		10			6
Proceeds from exercise of employee stock options		15,001			6,941
Purchase of treasury stock		(9,259	)		(774	)
Cash provided by financing activities		5,752			6,173
Net change in cash and cash equivalents		(8,713	)		(9,327	)
Cash and cash equivalents at beginning of period		15,167			11,033
Cash and cash equivalents at end of period	$	6,454		$	1,706
Supplemental disclosures:
Interest paid		—			—
Income taxes paid	$	1,140		$	12,581

The accompanying notes are an integral part of these consolidated financial statements.

4

THE CHEESECAKE FACTORY INCORPORATED AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

September 28, 2004

(Unaudited)

NOTE A – BASIS OF PRESENTATION

The accompanying consolidated financial statements include the accounts of The Cheesecake Factory Incorporated (referred to herein as the “Company” or in the first person notations “we”, “us” and “our”) and its wholly owned subsidiaries for the thirteen and thirty-nine weeks ended September 28, 2004 prepared in accordance with generally accepted accounting principles and with the instructions to Form 10-Q and Article 10 of Regulation S-X. The financial statements presented herein have not been audited by independent public accountants, but include all material adjustments (consisting of normal recurring adjustments) which are, in the opinion of management, necessary for a fair statement of the financial condition, results of operations and cash flows for the period. However, these results are not necessarily indicative of results for any other interim period or for the full fiscal year. The consolidated balance sheet data presented herein for December 30, 2003 was derived from our audited consolidated financial statements for the fiscal year then ended, but does not include all disclosures required by generally accepted accounting principles. The preparation of financial statements in accordance with generally accepted accounting principles requires us to make certain estimates and assumptions for the reporting periods covered by the financial statements. These estimates and assumptions affect the reported amounts of assets, liabilities, revenues and expenses. Actual amounts could differ from these estimates.

Certain information and footnote disclosures normally included in financial statements in accordance with generally accepted accounting principles have been omitted pursuant to the rules of the Securities and Exchange Commission. The accompanying consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto included in our Form 10-K for the fiscal year ended

December 30, 2003.

NOTE B – INVESTMENTS AND MARKETABLE SECURITIES

Investments and marketable securities, all classified as available-for-sale, consisted of the following as of

September 28, 2004 (in thousands):

Classification	Cost		Fair Value		Unrealized Loss			Balance Sheet Amount		Maturity
Current assets:
Available-for-sale securities:
										October 2004 to
U.S. Treasury securities	$	12,333	$	12,298	$	(35	)	$	12,298	August 2005
										September 2004 to
Corporate debt securities		15,924		15,901		(23	)		15,901	September 2005
Total	$	28,257	$	28,199	$	(58	)	$	28,199
Other assets:
Available-for-sale securities:
										October 2005 to
U.S. Treasury securities	$	46,004	$	45,460	$	(544	)	$	45,460	April 2008
										December 2005 to
Corporate debt securities		42,064		41,853		(211	)		41,853	March 2009
Total	$	88,068	$	87,313	$	(755	)	$	87,313

5

THE CHEESECAKE FACTORY INCORPORATED AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

September 28, 2004

(Unaudited)

NOTE C – COMMITMENTS AND CONTINGENCIES

In December 2002, two former hourly restaurant employees in California filed a lawsuit in the Superior Court in Orange County, California against the Company alleging violations of California labor laws with respect to providing meal and rest breaks. In October 2003, an hourly restaurant employee in California filed a lawsuit in Superior Court in Orange County, California against the Company alleging violations of California labor laws with respect to the providing of meal and rest breaks and improper deductions, among other claims. In May 2003, an hourly restaurant employee filed a lawsuit alleging similar violations in Superior Court in Los Angeles County, California. A motion filed by plaintiffs’ attorneys to consolidate these cases is currently pending. The lawsuits sought unspecified amounts of penalties and other monetary payments on behalf of the plaintiffs and other purported class members. Discovery is currently continuing in these matters. Several former and current employees also filed individual wage and hour claims, based upon alleged failures to provide meal and rest breaks to our hourly employees, directly with various offices of the California Department of Labor Standards Enforcement, which claims have been referred to the California Labor Commissioner. The Company has engaged in a series of mediation discussions with plaintiffs’ attorneys in September and October of this year. While the Company continues to vigorously defend its position in all of these matters, it has accrued $4.5 million based on an estimate of the ultimate costs, expenses and fees which may be incurred in connection with these matters. Revisions to this estimate may be made in the future and will be reported in the periods in which additional information is known.

NOTE D – STOCK-BASED EMPLOYEE COMPENSATION

In accordance with the provisions of Statement of Financial Accounting Standards (SFAS) No. 123, “Accounting for Stock-Based Compensation”, as amended by SFAS No. 148, “Accounting for Stock-Based Compensation – Transition and Disclosure”, we have elected to account for our stock-based employee compensation plans under the intrinsic value method which requires compensation expense to be recorded only if, on the date of grant, the current market price of the Company’s common stock exceeds the exercise price the employee must pay for the stock. The Company’s policy is to grant stock options at the fair market value of the underlying stock at the date of grant. Accordingly, no compensation expense has been recognized for our stock option plans. Had compensation expense for our stock option plans been determined based on the fair value at the grant date for awards through September 28, 2004 consistent with the provisions of SFAS No. 123, our net income and net income per share would have been reduced to the pro forma amounts indicated below (in thousands, except net income per share):

	Thirteen Weeks Ended September 28, 2004			Thirteen Weeks Ended September 30, 2003			Thirty-nine Weeks Ended September 28, 2004			Thirty-nine Weeks Ended September 30, 2003
Net income, as reported	$	12,784		$	14,358		$	47,253		$	42,266
Total stock-based employee compensation
expense determined under the fair value
method for all awards, net of related tax
effects		(2,141	)		(1,750	)		(6,826	)		(5,692	)
Net income, pro forma	$	10,643		$	12,608		$	40,427		$	36,574
Basic net income per share, as reported	$	0.25		$	0.28		$	0.91		$	0.84
Basic net income per share, pro forma	$	0.21		$	0.25		$	0.78		$	0.73
Diluted net income per share, as reported	$	0.24		$	0.28		$	0.89		$	0.82
Diluted net income per share, pro forma	$	0.20		$	0.24		$	0.76		$	0.71

6

THE CHEESECAKE FACTORY INCORPORATED AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

September 28, 2004

(Unaudited)

NOTE E – NET INCOME PER SHARE

In accordance with the provisions of SFAS No. 128, “Earnings Per Share”, basic net income per share is computed by dividing net income available to common stockholders by the weighted average number of common shares outstanding during the period. Diluted net income per share includes the dilutive effect of potential stock option exercises, calculated using the treasury stock method. Outstanding stock options issued by the Company represent the only dilutive effect reflected in diluted weighted average shares outstanding. Options do not impact the numerator of the diluted net income per share computation.

NOTE F – STOCK TRANSACTIONS

During fiscal 2004, our Board of Directors increased the share repurchase authorization to 4,000,000 from 1,687,500. As of September 28, 2004, we have repurchased 1,300,645 shares at a total cost of approximately $26.5 million under this authorization.

NOTE G – COMPREHENSIVE INCOME

Comprehensive income consisted of (in thousands):

	Thirteen Weeks Ended September 28, 2004		Thirteen Weeks Ended September 30, 2003			Thirty-Nine Weeks Ended September 28, 2004			Thirty-nine Weeks Ended September 30, 2003
Net income	$	12,784	$	14,358		$	47,253		$	42,266
Net unrealized gain (loss) on
available-for-sale securities		641		(678	)		(367	)		(1,178	)
Total comprehensive income	$	13,425	$	13,680		$	46,886		$	41,088

The Company principally invests its excess cash balances in U.S. government and agency securities, investment grade corporate debt securities rated “A” or better and money market mutual funds. The Company has historically classified all of its investments and marketable securities as available-for-sale securities, even though its current liquidity position and requirements provide it with the ability to hold a substantial amount of such securities to maturity. Available-for-sale securities are reported at their fair values, with unrealized gains and losses on such securities reflected, net of tax effect, in total comprehensive income and as a separate component of stockholders’ equity. Realized gains and losses are included, net of tax effect, in net income. The net unrealized gain or loss on the Company’s available-for-sale securities will fluctuate from period to period depending on changes in the general level of interest rates and other factors.

NOTE H – RECENT ACCOUNTING PRONOUNCEMENTS

In December 2003, the Financial Accounting Standards Board (FASB) revised SFAS No. 132, “Employers’ Disclosures about Pensions and Other Postretirement Benefits”. As revised, this statement requires additional quarterly and annual disclosures for defined benefit pension and other postretirement plans, including information on plan assets, obligations, and cash flows. The revised statement was effective for annual periods ending after December 15, 2003 and interim periods beginning after December 15, 2003. We adopted the additional disclosure requirements of SFAS No. 132 in fiscal 2003. This statement did not have any impact on our consolidated financial statements.

7

Item 2.   Management’s Discussion and Analysis of Financial Condition and Results of Operations

General

As of October 20, 2004, The Cheesecake Factory Incorporated (referred to herein as the “Company” or in the first person notations “we”, “us” and “our”) operated 85 upscale, full-service, casual dining restaurants under The Cheesecake Factory® mark. We also operated four upscale casual dining restaurants under the Grand Lux Cafe® mark in Los Angeles, California, Chicago, Illinois, Las Vegas, Nevada and Dallas, Texas; one self-service, limited menu “express” foodservice operation under The Cheesecake Factory Express® mark inside the DisneyQuest® family entertainment center in Orlando, Florida; and a bakery production facility. We also licensed three limited menu bakery cafes under The Cheesecake Factory Bakery Cafe® mark to another foodservice operator.

Our revenues consist of sales from our restaurant operations and sales from our bakery operations to other foodservice operators, retailers and distributors (“bakery sales”). Revenue from restaurant sales is recognized when payment is tendered at the point of sale. Revenue from our gift cards (also known as stored value cards) is recognized upon redemption in our restaurants. Until the redemption of gift cards occurs, all outstanding balances on such cards are included as a liability in our consolidated balance sheets. Revenue from bakery sales to other foodservice operators, retailers and distributors is recognized when the products are shipped. Sales and cost of sales are reported separately for restaurant and bakery activities. All other operating cost and expense categories are reported on a combined basis for both restaurant and bakery activities. The inclusion of supplementary analytical and related information herein may require us to make appropriate estimates and assumptions to enable us to fairly present, in all material respects, our analysis of trends and expectations with respect to our results of operations and financial position taken as a whole. The following discussion should be read in conjunction with our interim unaudited consolidated financial statements and notes thereto included in this Form 10-Q and the audited consolidated financial statements and notes thereto included in our Form 10-K for the fiscal year ended December 30, 2003.

The Company utilizes a 52/53 week fiscal year ending on the Tuesday closest to December 31 for financial reporting purposes. Fiscal 2004 will consist of 52 weeks and will end on December 28, 2004. Our next 53-week fiscal year will occur in fiscal 2005.

8

Results of Operations

The following table sets forth, for the periods indicated, our consolidated statements of operations expressed as percentages of total revenues. The results of operations for the thirteen and thirty-nine weeks ended September 28, 2004 and September 30, 2003 are not necessarily indicative of the results to be expected for the full fiscal year.

	Thirteen Weeks Ended September 28, 2004	Thirteen Weeks Ended September 30, 2003	Thirty-nine Weeks Ended September 28, 2004	Thirty-nine Weeks Ended September 30, 2003
	%	%	%	%
Revenues:
Restaurant sales	94.9	94.9	95.2	95.1
Bakery sales to other foodservice
operators, retailers and distributors	5.1	5.1	4.8	4.9
Total revenues	100.0	100.0	100.0	100.0
Costs and expenses:
Restaurant cost of sales	23.7	23.0	23.9	22.7
Bakery cost of sales	2.6	2.4	2.5	2.3
Labor expenses	31.0	30.5	30.9	31.2
Other operating costs and expenses	24.5	23.4	23.3	23.2
General and administrative expenses	4.1	4.6	4.2	4.8
Depreciation and amortization expenses	3.6	3.5	3.6	3.6
Preopening costs	2.8	2.1	1.6	1.4
Total costs and expenses	92.3	89.5	90.0	89.2
Income from operations	7.7	10.5	10.0	10.8
Interest income, net	0.2	0.5	0.2	0.5
Other income, net	0.1	0.3	0.1	0.4
Income before income taxes	8.0	11.3	10.3	11.7
Income tax provision	2.8	4.0	3.6	4.1
Net income	5.2	7.3	6.7	7.6

Thirteen Weeks Ended September 28, 2004 Compared to Thirteen Weeks Ended September 30, 2003

Revenues

For the thirteen weeks ended September 28, 2004, the Company’s total revenues increased 25.2% to $247.7 million compared to $197.8 million for the thirteen weeks ended September 30, 2003. Restaurant sales increased 25.2% to $235.0 million compared to $187.7 million for the same period of the prior year. The $47.3 million increase in restaurant sales consisted of a $42.8 million increase from the openings of new restaurants and a $4.5 million, or approximate 2.6%, increase in comparable restaurant sales. Restaurant sales in the current quarter were unfavorably impacted due to hurricanes and other severe weather in Florida and the Southeast that resulted in approximately 64 lost days of restaurant sales due to restaurant closings. We estimate the effect of these closures on total restaurant sales for the quarter ended September 28, 2004 to be in the range of approximately $1.8 - $2.0 million. Sales in comparable restaurants benefited from an approximate 2% effective menu price increase implemented in Cheesecake Factory restaurants during January and February 2004 and an approximate 1% effective menu price increase implemented at Cheesecake Factory restaurants during July and August 2004. Since most of our established restaurants currently operate close to full capacity during the peak demand periods of lunch and dinner, we generally do not expect to achieve increases in comparable restaurant sales other than our effective menu price increases. As a result of the openings of new restaurants during the past twelve months, total restaurant operating weeks increased 23% for the thirteen weeks ended September 28, 2004. Average sales per restaurant operating week increased 2.1% to $216,800 compared to $212,300 for the same period last year.

9

The percentage increase in comparable restaurant sales for the thirteen weeks ended September 28, 2004 slightly exceeded the percentage increase in average weekly sales for the same period due principally to the weekly sales volumes at several newer restaurants that are gradually decreasing, as expected, from their initial grand opening or “honeymoon” sales levels to their sustainable and expected run-rate levels. It is common in the restaurant industry for new locations to open with sales volumes well in excess of their sustainable run-rate levels due to grand opening promotional and consumer awareness activities that generate abnormally high customer traffic for a period of several months.

Our primary restaurant expansion objective during fiscal 2004 is to increase our total restaurant productive square feet and operating weeks from the prior year by approximately 20-21% and 22%, respectively. We currently expect to open as many as 16 new restaurants during fiscal 2004, consisting of approximately 14 Cheesecake Factory restaurants and two Grand Lux Cafes. Eleven new Cheesecake Factory restaurants were opened during the first three quarters of fiscal 2004, including seven new restaurants opened in the third quarter. An additional Cheesecake Factory restaurant was opened in October 2004 and two more are planned for later in the fourth quarter. We also opened one Grand Lux Cafe in the third quarter in Dallas, Texas and plan to open an additional Grand Lux Cafe in Houston, Texas during the fourth quarter. However, due to the nature of the leased spaces that we select for our upscale restaurants and their highly customized layouts, it is difficult to predict, by quarter, the exact timing of our restaurant openings. As a result, it is not uncommon to have planned openings move due to various factors outside of our control.

Bakery sales increased 24.5% to $12.7 million for the thirteen weeks ended September 28, 2004 compared to $10.2 million for the same period of the prior year. This increase was primarily attributable to increased sales to the warehouse clubs and increased sales of The Dream Factory® and private label products through our expanded relationship with SYSCO Corporation that we announced in February 2003. Sales to warehouse clubs comprised approximately 62% of total bakery sales in the current period compared to approximately 70% for the same period of the prior year.

We strive to develop and maintain long-term, growing relationships with our bakery customers, based largely on our 32-year reputation for producing high quality, creative baked desserts. However, bakery sales volumes will always be less predictable than our restaurant sales. It is difficult to predict the timing of bakery product shipments and contribution margins on a quarterly basis. Additionally, the purchasing plans of our large-account customers may fluctuate from quarter to quarter. Due to the highly competitive nature of the bakery business, we are unable to enter into long-term contracts with our large-account bakery customers, who may discontinue purchasing our products without advance notice at any time for any reason.

Restaurant Cost of Sales

During the thirteen weeks ended September 28, 2004, restaurant cost of sales increased 29.2% to $58.8 million compared to $45.5 million for the comparable period last year. The related increase of $13.3 million was primarily attributable to new restaurant openings. As a percentage of restaurant sales, these costs increased to 25.0% versus 24.2% for the same period of the prior year.

The menu at our restaurants is one of the most diversified in the foodservice industry and, accordingly, is not overly dependent on a single commodity. Changes in costs for one commodity are often, but not always, counterbalanced by cost changes in other commodity categories. The principal commodity categories for our restaurants include fresh produce, poultry, meat, fish and seafood, cheese, other fresh dairy products, bread and general grocery items. Compared to the same period of the prior year, we experienced increased costs for fresh poultry and dairy-related commodities during the third quarter of fiscal 2004. Higher costs for these commodities were partially offset by lower costs for other commodities, such as produce and shrimp, coupled with increased volume purchase discounts and purchasing power as a result of our continued growth.

We currently contract for the majority of the food commodities used in our restaurant operations for periods of up to one year. Approximately one-quarter of our restaurant cost of sales consists of fresh poultry, fish and dairy commodities that historically we have not been able to contract for periods longer than 30 days in most cases. As a result, these fresh commodities can be subject to unforeseen supply and cost fluctuations due principally to weather and other general agricultural conditions. Due to our increased purchasing volumes, we were able to enter into an agreement in July 2004 to secure the majority of our poultry requirements for the following six months, which should help to reduce additional poultry cost exposure. Based on this contract and the current and expected market conditions for our remaining non-contractible commodities, we currently expect our restaurant cost of sales as a percentage of restaurant sales for the fourth quarter of fiscal 2004 to be higher than the corresponding period of the prior year.

10

As has been our past practice, we will carefully consider opportunities to introduce new menu items and implement selected menu price increases to help offset expected cost increases for key commodities and other goods and services utilized by our operations. While we have been successful in the past to react to inflation and other changes in the costs of key operating resources by gradually increasing prices for our menu items, coupled with more efficient purchasing practices, productivity improvements and greater economies of scale, there can be no assurance that we will be able to continue to do so in the future.

While we have taken steps to qualify multiple suppliers and enter into agreements for some of the key commodities used in our restaurant operations, there can be no assurance that future supplies and costs for commodities used in our restaurant operations will not fluctuate due to weather and other market conditions outside of our control. For new restaurants, cost of sales will typically be higher than normal during the first
90-120 days of operations until our management team at each new restaurant becomes more accustomed to optimally predicting, managing and servicing the high sales volumes typically experienced by our restaurants.

Bakery Cost of Sales

Bakery cost of sales, which include ingredient, packaging and production supply costs, were $6.4 million for the thirteen weeks ended September 28, 2004 compared to $4.7 million for the same period of the prior year. As a percentage of bakery sales, bakery costs for the thirteen weeks ended September 28, 2004 increased to 50.6% compared to 45.8% for the comparable period last year. The increase in bakery cost of sales as a percentage of bakery sales was principally due to an increase in costs for certain non-contracted dairy commodities, such as butter and manufacturers cream. While we have taken steps to qualify multiple suppliers and enter into agreements for some of the key commodities used in our bakery operations, there can be no assurance that future supplies and costs for commodities used in our bakery or restaurant operations will not fluctuate due to weather and other market conditions beyond our control. Cream cheese is the most significant commodity used in our bakery products, with an expected requirement for as much as 9-10 million pounds during fiscal 2004. During the first quarter of fiscal 2004, we executed agreements for substantially all of our cream cheese requirements for the 12-month period thereafter with two suppliers at a fixed cost per pound that is slightly higher than the actual cost per pound in fiscal 2003. We will also purchase cream cheese on the spot market as necessary to supplement our agreements.

Labor Expenses

Labor expenses, which include restaurant-level labor costs and bakery direct production labor costs (including associated fringe benefits), increased 27.2% to $76.8 million for the thirteen weeks ended
September 28, 2004 compared to $60.4 million for the same period of the prior year. This increase was principally due to the impact of new restaurant openings. As a percentage of total revenues, labor expenses increased to 31.0% versus 30.5% for the comparable period last year. This percentage increase was primarily due to reverse leverage on the fixed portion of labor costs from the lost sales associated with store closures from the hurricanes and severe weather in the Southeast and the impact from opening eight new restaurants in the current quarter. For new restaurants, labor expenses will typically be higher than normal during the first 90-120 days of operations until our management team at each new restaurant becomes more accustomed to optimally predicting, managing and servicing the high sales volumes typically experienced by our restaurants.

Other Operating Costs and Expenses

Other operating costs and expenses consist of restaurant-level occupancy expenses (rent, insurance, licenses, taxes and utilities), other operating expenses (excluding food costs and labor expenses reported separately) and bakery production overhead, selling and distribution expenses. Other operating costs and expenses increased 30.8% to $60.8 million for the thirteen weeks ended September 28, 2004 compared to $46.5 million for the same period of the prior year. This increase was principally attributable to new restaurant openings and the accrual of a $4.5 million reserve for pending legal actions. As previously disclosed, the Company and a subsidiary were named in three lawsuits and in individual wage and hour claims filed directly with the California Department of Labor Standards Enforcement alleging violations of California labor laws with respect to providing meal and rest breaks to our hourly employees. While these actions are still pending, we have accrued $4.5 million based on an estimate of the ultimate costs, expenses and fees which may be incurred in connection with these matters. As a percentage of total revenues, other operating costs and expenses increased to 24.5% for the thirteen weeks ended September 28, 2004 versus 23.4% for the same period of fiscal 2003. This 1.1% increase was primarily attributable to the impact of the legal accrual at 1.8% of total revenues offset partially by leveraging the fixed portion of our other operating costs and expenses with the 25.2% increase in revenues.

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General and Administrative Expenses

General and administrative (“G&A”) expenses consist of the restaurant management recruiting and training program, the restaurant field supervision organization, the bakery administrative organization and the corporate support organization. G&A expenses increased 9.9% to $10.0 million for the thirteen weeks ended September 28, 2004 compared to $9.1 million for the same period of fiscal 2003. As a percentage of total revenues, G&A expenses decreased to 4.1% for the thirteen weeks ended September 28, 2004 versus 4.6% for the same period of fiscal 2003. This decrease was principally attributable to the leveraging of the fixed component of these costs with the 25.2% increase in revenues.

During the remainder of fiscal 2004 and into fiscal 2005, we plan to continue to add resources to the corporate support and field supervision activities of our operations. Commensurate with the planned openings of as many as four additional new restaurants during the fourth quarter of fiscal 2004, we expect that our absolute G&A expenses per quarter will also reflect the ramp-up of restaurant management recruiting and training activities. Accordingly, we expect absolute G&A expense to progressively increase from quarter to quarter during the remainder of fiscal 2004 and into fiscal 2005.

Depreciation and Amortization Expenses

Depreciation and amortization expenses were $9.0 million for the thirteen weeks ended September 28, 2004 compared to $7.0 million for the thirteen weeks ended September 30, 2003. This increase was principally due to increases in property and equipment associated with new restaurant openings. As a percentage of total revenues, depreciation and amortization expenses were 3.6% for the thirteen weeks ended September 28, 2004 compared to 3.5% for the same period of the prior year.

Preopening Costs

Incurred preopening costs were $6.9 million for the thirteen weeks ended September 28, 2004 compared to $4.1 million for the same period of the prior year. We opened seven Cheesecake Factory restaurants and one Grand Lux Cafe restaurant during the thirteen weeks ended September 28, 2004 compared to three Cheesecake Factory restaurant openings for the same quarter last year. In addition, preopening costs were incurred in both periods for restaurant openings in progress.

Preopening costs include incremental out-of-pocket costs that are directly related to the openings of new restaurants that are not otherwise capitalizable. As a result of the highly customized and operationally complex nature of our upscale, high volume concepts, the restaurant preopening process for our new restaurants is more extensive, time consuming and costly relative to that of most chain restaurant operations. The preopening costs for one of our restaurants usually include costs to relocate and compensate an average of 11-12 restaurant management employees prior to opening; costs to recruit and train an average of 200-250 hourly restaurant employees; wages, travel and lodging costs for our opening training team and other support employees; and costs for practice service activities. Preopening costs will vary from location to location depending on a number of factors, including the proximity of our existing restaurants; the size and physical layout of each location; the number of management and hourly employees required to open each restaurant; the relative difficulty of the restaurant staffing process; the cost of travel and lodging for different metropolitan areas; and the extent of unexpected delays, if any, in construction and/or obtaining final licenses and permits to open the restaurants, which may also be caused by landlord delays.

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Our direct preopening costs for an 11,000 square foot, single-story restaurant in an established Company market averages approximately $750,000. There will also be other preopening costs associated with each restaurant opening, including costs for corporate travel and support activities. Preopening costs will usually be higher for larger restaurants, our initial entry into new markets and for new concepts such as Grand Lux Cafe. We usually incur the most significant portion of preopening costs for a typical restaurant opening within the two-month period immediately preceding and the month of the restaurant’s opening. Preopening costs will fluctuate from period to period, based on the number and timing of restaurant openings and the specific preopening costs incurred for each restaurant, and the fluctuations could be significant. We expense preopening costs as incurred. Based on our planned openings of as many as four new restaurants during the fourth quarter (including one Grand Lux Cafe) and costs to be incurred for early fiscal 2005 openings, we currently expect preopening costs to be in the $3.0 million to $3.5 million range for the fourth quarter. However, due to the nature of the leased spaces that we select for our upscale restaurants and their highly customized layouts, it is difficult to predict, by quarter, the exact timing of our restaurant openings. As a result, it is not uncommon to have planned openings move due to various factors outside of our control.

Thirty-nine Weeks Ended September 28, 2004 Compared to Thirty-nine Weeks Ended September 30, 2003

Revenues

For the thirty-nine weeks ended September 28, 2004, the Company’s total revenues increased 25.7% to $703.1 million compared to $559.3 million for the thirty-nine weeks ended September 30, 2003. Restaurant sales increased 25.9% to $669.3 million compared to $531.6 million for the same period of the prior year. The $137.7 million increase in restaurant sales consisted of a $117.3 million increase from the openings of new restaurants and a $20.4 million or approximate 4.3% increase in comparable restaurant sales. Sales in comparable restaurants benefited from an approximate 2% effective menu price increase implemented in Cheesecake Factory restaurants during January and February 2004 and an approximate 1% effective menu price increase implemented at Cheesecake Factory restaurants during July and August 2004. In addition, restaurant sales were unfavorably impacted in both the current year and the prior year due to restaurant closures caused by severe weather conditions. During the thirty-nine weeks ended September 28, 2004, hurricanes and other severe weather in the Southeast resulted in approximately 64 lost days of restaurants sales due to restaurant closings. In the comparable period of the prior year, severe winter weather throughout much of the country resulted in approximately 22 lost days of restaurant sales due to restaurant closings.

Bakery sales increased 22.1% to $33.8 million for the thirty-nine weeks ended September 28, 2004 compared to $27.7 million for the same period of the prior year. This increase was primarily due to increased sales to our warehouse club customers, which accounted for approximately 62% of bakery sales in the current period compared to 61% of sales in the comparable period of the prior year, and increased sales of The Dream Factory® and private label products through our expanded relationship with SYSCO Corporation that we announced in February 2003.

Restaurant Cost of Sales

During the thirty-nine weeks ended September 28, 2004, restaurant cost of sales increased 32.4% to $168.3 million compared to $127.1 million for the comparable period last year. The related increase of $41.2 million was primarily attributable to new restaurant openings. As a percentage of restaurant sales, this cost increased to 25.1% versus 23.9% for the same period of the prior year. This increase was primarily attributable to increased costs for a variety of commodities used in our restaurants, particularly poultry and certain dairy-related commodities.

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Bakery Cost of Sales

Bakery cost of sales were $17.6 million for the thirty-nine weeks ended September 28, 2004 compared to $12.8 million for the same period of the prior year. As a percentage of bakery sales, bakery cost of sales for the thirty-nine weeks ended September 28, 2004 increased to 52.0% compared to 46.1% for the comparable period last year. This percentage increase was primarily due to increased costs for certain non-contracted dairy commodities, such as butter and manufacturers’ cream.

Labor Expenses

Labor expenses were $217.5 million for the thirty-nine weeks ended September 28, 2004 compared to $174.6 million for the same period of the prior year. The related increase of $42.9 million was principally due to the impact of new restaurant openings. As a percentage of total revenues, labor expenses for the thirty-nine weeks ended September 28, 2004 decreased to 30.9% compared to 31.2% for the comparable period last year, reflecting the leveraging of the fixed component of our labor costs with the 25.7% increase in total revenues.

Other Operating Costs and Expenses

Other operating costs and expenses increased 26.1% to $163.6 million for the thirty-nine weeks ended September 28, 2004 compared to $129.7 million for the same period of the prior year. The related increase of $33.9 million was principally attributable to new restaurant openings and the accrual of a $4.5 million reserve for pending legal actions. As previously disclosed, the Company and a subsidiary were named in three lawsuits and in individual wage and hour claims filed directly with the California Department of Labor Standards Enforcement alleging violations of California labor laws with respect to providing meal and rest breaks to our hourly employees. While these actions are still pending, we have accrued $4.5 million based on an estimate of the ultimate costs, expenses and fees which may be incurred in connection with these matters. As a percentage of total revenues, other operating costs and expenses increased to 23.3% for the thirty-nine weeks ended September 28, 2004 versus 23.2% for the same period of fiscal 2003. This slight increase was primarily attributable to the impact of the legal accrual at 0.6% of total revenues offset partially by leveraging the fixed portion of our other operating costs and expenses with the 25.7% increase in revenues.

General and Administrative Expenses

General and administrative expenses increased to $29.7 million for the thirty-nine weeks ended
September 28, 2004 compared to $26.9 million for the same period of fiscal 2003, an increase of $2.8 million or 10.4%. As a percentage of total revenues, general and administrative expenses decreased to 4.2% for the thirty-nine weeks ended September 28, 2004 compared to 4.8% for the same period of the prior year. This decrease was principally attributable to the leveraging of the fixed component of these costs with higher sales volumes.

Depreciation and Amortization Expenses

Depreciation and amortization expenses were $25.5 million for the thirty-nine weeks ended 
September 28, 2004 compared to $20.2 million for the same period of the prior year. The related increase of $5.3 million was principally attributable to increases in property and equipment associated with new restaurant openings. As a percentage of total revenues, depreciation and amortization expenses were 3.6% for both of the thirty-nine weeks ended September 28, 2004 and September 30, 2003.

Preopening Costs

Incurred preopening costs were $10.9 million for the thirty-nine weeks ended September 28, 2004 compared to $7.4 million for the same period of the prior year. We incurred preopening costs to open eleven Cheesecake Factory restaurants and one Grand Lux Cafe restaurant during the thirty-nine weeks ended September 28, 2004 compared to seven Cheesecake Factory restaurants during the same period for the prior year. In addition, we incurred preopening costs in both periods for other restaurant openings in progress.

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Liquidity and Capital Resources

The following table sets forth a summary of the Company’s key liquidity measurements at September 28, 2004 and December 30, 2003.

	September 28, 2004		December 30, 2003
	(dollar amounts in millions)
Cash and marketable securities on hand	$	122.0	$	137.0
Net working capital	$	15.1	$	33.9
Adjusted net working capital (1)	$	102.4	$	121.8
Current ratio		1.2:1		1.4:1
Adjusted current ratio (1)		2.1:1		2.5:1
Long-term debt		—		—
Cash provided by operations	$	85.2	$	116.7
Capital expenditures	$	105.6	$	105.6

(1) Includes all marketable securities classified as either current assets ($28.2 million and $34.0 million at September 28, 2004 and December 30, 2003, respectively) or noncurrent assets ($87.3 million and $87.9 million at September 28, 2004 and December 30, 2003, respectively).

During the thirty-nine weeks ended September 28, 2004, our cash and marketable securities on hand decreased by $15.0 million to $122.0 million from the December 30, 2003 balance. This decline was primarily attributable to purchases of property, equipment and treasury stock, offset by cash flows from operations and proceeds from stock option exercises. In the table above, we also present adjusted net working capital and current ratio calculations that include all marketable securities classified as either current or noncurrent assets. We believe these adjusted calculations provide investors with useful information regarding our overall liquidity position because all marketable securities are readily available to meet our liquidity requirements. We continue to target a weighted average maturity for our marketable securities investment portfolio between one and two years. Accordingly, a substantial portion of our investments is classified as noncurrent assets, but remain available for our liquidity requirements.

As of October 20, 2004, there were no borrowings outstanding under the Company’s $35 million revolving credit and term loan facility (the “Credit Facility”). $14.3 million of the Credit Facility has been reserved to support standby letters of credit for our self-insurance programs. Borrowings under the Credit Facility will bear interest at variable rates based, at our option, on either the prime rate of interest, the lending institution’s cost of funds rate plus 0.75% or the applicable LIBOR rate plus 0.75%. The Credit Facility expires on December 30, 2005. On that date, a maximum of $35 million of any borrowings outstanding under the Credit Facility automatically convert into a four-year term loan, payable in equal quarterly installments at interest rates of 0.5% higher than the applicable revolving credit rates. The Credit Facility is not collateralized and requires us to maintain certain financial ratios and to observe certain restrictive covenants with respect to the conduct of our operations, with which we are currently in compliance.

Our new restaurant development model more closely resembles that of a retail business that occupies leased space in shopping malls, office complexes, strip centers, entertainment centers and other real estate developments. We typically seek to lease our restaurant locations for primary periods of 15 to 20 years. Our rent structures vary from lease to lease, but generally provide for the payment of both minimum and contingent (percentage) rent based on sales. We expend cash for leasehold improvements and furnishings, fixtures and equipment to build out the leased premises. We may also expend cash for permanent improvements that we make to leased premises that will be reimbursed to us by our landlords as construction contributions (also known as tenant improvement allowances) pursuant to agreed-upon terms in therespective leases. If obtained, landlord construction contributions usually take the form of up-front cash, full or partial credits against minimum or percentage rents otherwise payable by us, or a combination thereof. We initially record uncollected landlord construction contributions as other receivables. Our balance of other receivables will fluctuate from period to period, depending on the timing of cash collections from landlords and additional receivables recorded from new restaurant development activities. In the future, we may also develop more freestanding restaurant locations using both ground leases and built-to-suit leases, which are common arrangements used to finance freestanding locations in the restaurant industry. We do not have any current plans to encumber our existing leasehold interests with secured financing. We own substantially all of the equipment, furniture and trade fixtures in our restaurants and currently plan to do so in the future.

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For fiscal 2004, we currently estimate our capital expenditure requirement to range between $130-$140 million, net of agreed-upon landlord construction contributions and excluding $13-$14 million of expected noncapitalizable preopening costs for new restaurants. This estimate contemplates $95-$98 million for as many as 16 new restaurants to be opened during fiscal 2004 and includes an estimate for construction-in-progress disbursements for anticipated fiscal 2005 openings. The estimated capital expenditures also reflect the fact that two of our planned 16 restaurant openings for fiscal 2004 do not have any landlord construction contributions. Not every potential location that we seek to develop into a restaurant may have landlord construction contributions available, and we would therefore not expect to incur a contingent rent obligation on such locations. Expected capital expenditures for fiscal 2004 also include approximately $10-$11 million for maintenance and capacity addition expenditures to our existing restaurants; and $5-$6 million for potential bakery capacity additions.

On June 4, 2004, we purchased a newly constructed two-story building contiguous to our bakery production facility in California to accommodate our eventual need for additional support personnel and space for those personnel as we continue to grow our company. We had previously leased the first floor of this building for our culinary, training and operations support activities. The purchase price of $21 million was funded with available cash and investments and is included in our estimate of fiscal 2004 capital expenditures noted above. We will incur additional expenditures to finish out the interior of the building, as space is needed. Although we purchased the building with available cash and investments, we may consider mortgage and other refinancing alternatives in the future.

We are in the process of completing an evaluation of various alternatives to develop a second bakery facility, which will likely be located on the East Coast and which could begin initial operations during fiscal 2006. Currently, we do not expect any material preopening or capital expenditure activities related to a second production facility to be incurred during fiscal 2004.

We currently plan to open as many as 18 full service restaurants during fiscal 2005 and are in the process of finalizing our required capital expenditure outlays to achieve that growth objective. Based on our current expansion objectives and opportunities, we currently believe that our cash and short-term investments on hand, coupled with expected cash provided by operations, available borrowings under our Credit Facility and expected landlord construction contributions should be sufficient to finance our planned capital expenditures and other operating activities through fiscal 2005. We may seek additional funds to finance our growth in the future. However, there can be no assurance that such funds will be available when needed or be available on terms acceptable to us.

During fiscal 2004, our Board of Directors increased the share repurchase authorization to 4,000,000 shares from 1,687,500 shares. Shares may be repurchased in the open market or through privately negotiated transactions at times and prices considered appropriate by us. Under this authorization, we have repurchased 1,300,645 shares at a total cost of approximately $26.5 million through October 20, 2004.

Recent Accounting Pronouncements

In December 2003, the Financial Accounting Standards Board (FASB) revised Statement of Financial Accounting Standards (SFAS) No. 132, “Employers’ Disclosures about Pensions and Other Postretirement Benefits”. As revised, this statement requires additional quarterly and annual disclosures for defined benefit pension and other postretirement plans, including information on plan assets, obligations, and cash flows. The revised statement was effective for annual periods ending after December 15, 2003 and interim periods beginning after December 15, 2003. We adopted the additional disclosure requirements of SFAS No. 132 in fiscal 2003. This statement did not have any impact on our Consolidated Financial Statements.

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Item 3. Quantitative and Qualitative Disclosures About Market Risk

The following discussion of market risks contains forward-looking statements. Actual results may differ materially from the following discussion based on general conditions in the financial and commodity markets.

We are exposed to market risk from changes in interest rates on funded debt. This exposure relates to our $35 million revolving credit and term loan facility (the “Credit Facility”). There were no borrowings outstanding under the Credit Facility during the third quarter of 2004. Borrowings under the Credit Facility bear interest at variable rates based on either the prime rate of interest, the lending institution’s cost of funds plus 0.75% or LIBOR plus 0.75%. A hypothetical 1% interest rate change would not have any current impact on our results of operations.

A change in market prices also exposes us to market risk related to our investments in marketable securities. As of September 28, 2004, we held $115.5 million in marketable securities. A hypothetical 10% decline in the market value of those securities would result in a $11.6 million unrealized loss and a corresponding decline in their fair value. This hypothetical decline would not affect our cash flows until the securities were disposed of.

We purchase food and other commodities for use in our operations, based upon market prices established with our suppliers. Many of the commodities purchased by us can be subject to volatility due to market supply and demand factors outside of our control. To manage this risk in part, we attempt to enter into fixed price purchase commitments, with terms typically up to one year, for many of our commodity requirements. However, we are currently unable to contract for substantially all of our fresh commodities such as fish and dairy items (except for cream cheese used in our bakery operations) for periods longer than 30 days. Dairy costs can also fluctuate due to government regulation. We believe that substantially all of our food and supplies are available from several sources, which helps to diversify our overall commodity cost risk. We also believe that we have the ability to increase certain menu prices, or vary certain menu items offered, in response to food commodity price increases. Some of our commodity purchase arrangements may contain contractual features that limit the price paid by establishing certain price floors or caps. The Company does not use financial instruments to hedge commodity prices, since our purchase arrangements with suppliers, to the extent that we can enter into such arrangements, help control the ultimate cost that we pay.

Item 4. Controls and Procedures

We maintain disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that are designed to ensure that information required to be disclosed in our reports filed under the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the Security and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to our management, including our Chief (principal) Executive Officer and Chief (principal) Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

We carried out an evaluation under the supervision and with the participation of management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures as of September 28, 2004, the end of the period covered by this report. Based on that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective at the reasonable assurance level as of September 28, 2004.

There have been no changes in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the quarter ended September 28, 2004 that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

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Forward-looking Statements and Risk Factors

Certain information included in this Form 10-Q and other materials filed or to be filed by us with the Securities and Exchange Commission (as well as information included in oral or written statements made by us or on our behalf), may contain forward-looking statements about our current and expected performance trends, growth plans, business goals and other matters. These statements may be contained in our filings with the Securities and Exchange Commission, in our press releases, in other written communications, and in oral statements made by or with the approval of one of our authorized officers. Words or phrases such as “believe,” “plan,” “will likely result,” “expect,” “intend,” “will continue,” “is anticipated,” “estimate,” “project”, “may,” “could,” “would,” “should” and similar expressions are intended to identify forward-looking statements. These statements, and any other statements that are not historical facts, are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, as codified in Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, as amended from time to time (the “Act”).

In connection with the “safe harbor” provisions of the Act, we are filing the following summary to identify important factors, risks and uncertainties that could cause our actual results to differ materially from those projected in forward-looking statements made by us, or on our behalf. These cautionary statements are to be used as a reference in connection with any forward-looking statements. The factors, risks and uncertainties identified in these cautionary statements are in addition to those contained in any other cautionary statements, written or oral, which may be made or otherwise addressed in connection with a forward-looking statement or contained in any of our subsequent filings with the Securities and Exchange Commission. Because of these factors, risks and uncertainties, we caution against placing undue reliance on forward-looking statements. Although we believe that the assumptions underlying forward-looking statements are reasonable, any of the assumptions could be incorrect, and there can be no assurance that forward-looking statements will prove to be accurate. Forward-looking statements speak only as of the date on which they are made. We do not undertake any obligation to modify or revise any forward-looking statement to take into account or otherwise reflect subsequent events, or circumstances arising after the date that the forward-looking statement was made.

The following risk factors may affect our operating results and the environment within which we conduct our business. If our projections and estimates regarding these factors differ materially from what actually occurs, our actual results could vary significantly from any results expressed or implied by forward-looking statements. These risk factors include, but are not limited to, changes in general economic, demographic, geopolitical or public safety conditions which affect consumer behavior and spending for restaurant dining occasions, including the ongoing ramifications of the September 11, 2001 terrorist attacks and the governmental response thereto, including the continuing armed conflict in Iraq or in other countries; changes in consumer eating habits as a result of new information regarding diet, nutrition and health that could impact demand for our menu and bakery product offerings; increasing competition in the upscale casual dining segment of the restaurant industry; adverse weather conditions which can result in the temporary closure of one or more restaurants, negatively impacting customer traffic at the Company’s restaurants in general, or cause the temporary underutilization of outdoor patio seating available at most of the Company’s restaurants; various factors which increase the cost to develop and/or affect the number and timing of the openings of new restaurants, including factors under the influence and control of government agencies, landlords, construction contractors and others; fluctuations in the availability and/or cost of raw materials, management and hourly labor, energy or other resources necessary to successfully operate the Company’s restaurants and bakery production facility; the Company’s ability to raise prices sufficiently to offset cost increases, including increased costs for food commodities, minimum wages, employee benefits and insurance arrangements; the success of strategic and operating initiatives, including new restaurant concepts and new bakery product lines; depth of management; adverse publicity about the Company, its restaurants or bakery products resulting from a number of risks that are common to restaurant and bakery businesses; the Company’s current dependence on a single bakery production facility; the Company’s ability to obtain and retain large-account customers for its bakery operations; changes in timing and/or scope of the purchasing plans of large-account bakery customers which can cause fluctuations in bakery sales and the Company’s consolidated operating results; our inability to enter into long-term contracts with large-account bakery customers, who may discontinue purchasing our products without advance notice at any time for any reason; the rate of growth of general and administrative expenses associated with building a strengthened corporate and field supervision infrastructure to support the Company’s growing operations; relations between the Company and its employees; legal claims and litigation against the Company; the availability, amount, type, and cost of capital for the Company and the deployment of such capital, including the amounts of planned capital expenditures; changes in, or any failure to comply with, governmental regulations; the amount of, and any changes to, tax rates and the success of various initiatives to minimize taxes; changes in accounting standards promulgated by the Financial Accounting Standards Board, the Public Company Accounting Oversight Board, the SEC, and the American Institute of Certified Public Accountants that could impact our reported financial results; and other risks and uncertainties referenced in this Form 10-Q or our Annual Report on Form 10-K for the fiscal year ended December 30, 2003.

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PART II. OTHER INFORMATION

Item 1. Legal Proceedings

The Company is subject to various legal proceedings that are discussed in the Company’s Annual Report on Form 10-K for the fiscal year ended December 30, 2003.

In December 2002, two former hourly restaurant employees in California filed a lawsuit in the Superior Court in Orange County, California against the Company alleging violations of California labor laws with respect to providing meal and rest breaks. In October 2003, an hourly restaurant employee in California filed a lawsuit in Superior Court in Orange County, California against the Company alleging violations of California labor laws with respect to the providing of meal and rest breaks and improper deductions, among other claims. In May 2003, an hourly restaurant employee filed a lawsuit alleging similar violations in Superior Court in  Los Angeles County, California. A motion filed by plaintiffs’ attorneys to consolidate these cases is currently pending. The lawsuits sought unspecified amounts of penalties and other monetary payments on behalf of the plaintiffs and other purported class members. Discovery is currently continuing in these matters. Several former and current employees also filed individual wage and hour claims, based upon alleged failures to provide meal and rest breaks to our hourly employees, directly with various offices of the California Department of Labor Standards Enforcement, which claims have been referred to the California Labor Commissioner. The Company has engaged in a series of mediation discussions with plaintiffs’ attorneys in September and October of this year. While the Company continues to vigorously defend its position in all of these matters, it has accrued $4.5 million based on an estimate of the ultimate costs, expenses and fees which may be incurred in connection with these matters. Revisions to this estimate may be made in the future and will be reported in the periods in which additional information is known.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

The following provides information regarding the Company’s purchase, during the quarterly period ended September 28, 2004, of equity securities that are registered by us pursuant to Section 12 of the Exchange Act:

Period	Total Number of Shares Purchased		Average Price Paid per Share		Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs		Maximum Number of Shares that May Yet Be Purchased Under the Plans or Programs (1)
June 30 – August 3, 2004		—		—		—		2,748,400
August 4 –31, 2004		51,545	$	38.80		51,545		2,696,855
September 1 – 28, 2004		—		—		—		2,696,855
Total		51,545	$	38.80		51,545

(1) In February 1998, our Board of Directors authorized the repurchase of up to 1,687,500 shares of our common stock. The repurchase program does not have an expiration date. In August 2004, our Board of Directors increased the repurchase authorization to 4,000,000 shares of our common stock.

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Item 6. Exhibits

Exhibit 10.1 Written Description of Director Fees

Exhibit 31.1 Rule 13a-14(a) Certification of Principal Executive Officer

Exhibit 31.2 Rule 13a-14(a) Certification of Principal Financial Officer

Exhibit 32.1 Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.

Exhibit 32.2 Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.

Exhibit 99.1 Form of Stock Option Agreement for Non-Employee Directors

Exhibit 99.2 Form of Stock Option Agreement for Executive Officers

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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 thereunto duly authorized.

                                       THE CHEESECAKE FACTORY INCORPORATED

Date: October 20, 2004
By:	/s/ DAVID OVERTON
	David Overton Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer)
By:	/s/ MICHAEL J. DIXON
	Michael J. Dixon Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

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INDEX TO EXHIBITS

Exhibit Number	Exhibit Title
10.1	Written Description of Director Fees
31.1	Rule 13a-14(a) Certification of Principal Executive Officer
31.2	Rule 13a-14(a) Certification of Principal Financial Officer
32.1	Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
32.2	Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
99.1	Form of Stock Option Agreement for Non-Employee Directors
99.2	Form of Stock Option Agreement for Executive Officers

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EX-10.1

EXHIBIT 10.1

THE CHEESECAKE FACTORY INCORPORATED

WRITTEN DESCRIPTION OF DIRECTOR FEES
PURSUANT TO
ITEM 601(b)(10)(iii)(A) of Regulation S-K

Each director who is not an employee of The Cheesecake Factory Incorporated receives an annual fee of $15,000 plus $1,000 for each meeting of the Board of Directors that he or she attends. The Coordinating Director receives an additional $1,000 for attending each regularly scheduled meeting of the Board of Directors. The Chairperson of the Audit Committee receives an additional $1,000 for each Audit Committee meeting that he or she attends as chairperson of the committee. Non-employee directors who serve on committees also receive $1,000 for each meeting attended that takes place on a date other than the day of a regularly scheduled meeting of the Board of Directors or committee. Under the terms of the 1997 Non-Employee Director Stock Option Plan, non-employee directors are eligible to receive options to purchase shares of the Company’s common stock.

EX-31.1

EXHIBIT 31.1

THE CHEESECAKE FACTORY INCORPORATED

CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER

I, David Overton, certify that:

1.		I have reviewed this quarterly report on Form 10-Q of The Cheesecake Factory Incorporated;
2.	Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.	Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.		The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
			(a)	designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;
			(b)	evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
			(c)	disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected or is reasonably likely to materially affect the registrant’s internal control over financial reporting.
5.		The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):
			(a)	all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
			(b)	any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

October 20, 2004

/s/ DAVID OVERTON

David Overton

Chairman of the Board, President and

Chief Executive Officer

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EX-31.2

EXHIBIT 31.2

THE CHEESECAKE FACTORY INCORPORATED

CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER

I, Michael J. Dixon, certify that:

1.	I have reviewed this quarterly report on Form 10-Q of The Cheesecake Factory Incorporated;
2.	Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.	Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.	The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
		(a)		designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;
		(b)		evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
		(c)	disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected or is reasonably likely to materially affect the registrant’s internal control over financial reporting.
5.	The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):
		(a)		all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
		(b)		Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

October 20, 2004

/s/ MICHAEL J. DIXON

Michael J. Dixon

Senior Vice President and Chief Financial Officer

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EX-32.1

EXHIBIT 32.1

THE CHEESECAKE FACTORY INCORPORATED

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of The Cheesecake Factory Incorporated (the “Company”) on

Form 10-Q for the period ended September 28, 2004 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, David Overton, Chairman of the Board, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:

(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.

/s/ DAVID OVERTON

David Overton

Chairman of the Board, President and

Chief Executive Officer

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EX-32.2

EXHIBIT 32.2

THE CHEESECAKE FACTORY INCORPORATED

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of The Cheesecake Factory Incorporated (the “Company”) on

Form 10-Q for the period ended September 28, 2004 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Michael J. Dixon, Senior Vice President and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:

(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.

/s/ MICHAEL J. DIXON

Michael J. Dixon

Senior Vice President and Chief Financial Officer

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EX-99.1

EXHIBIT 99.1

NONQUALIFIED STOCK OPTION AGREEMENT
dated as of ________________ between
THE CHEESECAKE FACTORY INCORPORATED,
a Delaware corporation (the “Company”),
and ________________ (the “Grantee”)

The Company, acting through its Board of Directors (the “Board”) or through a Committee (as defined in the Plan), has granted to the Grantee, effective as of the date of this Agreement, an option under the Company’s 1997 Non-Employee Director Stock Option Plan (the “Plan”) to purchase shares of Common Stock, on the terms and subject to the conditions set forth in this Agreement and the Plan.

NOW, THEREFORE, in consideration of the promises and of the mutual agreements contained in this Agreement, the parties hereto agree as follows:

SECTION 1. The Plan. The terms and provisions of the Plan are hereby incorporated into this Agreement as if set forth herein in their entirety. In the event of a conflict between any provision of this Agreement and the Plan, the provisions of the Plan shall control. A copy of the Plan may be obtained from the Company by the Grantee upon request. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Plan.

SECTION 2. Option; Option Price. On the terms and subject to the conditions of the Plan and this Agreement, the Grantee shall have the option (the “Option”) to purchase up to _____ shares of Common Stock (the “Option Shares”) at the price of ______ per Option Share (the “Option Price”) at the times and in the manner provided herein. Payment of the Option Price shall be made in the manner specified by Article VI of the Plan. The Option is not intended to qualify for federal income tax purposes as an “incentive stock option” within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended.

SECTION 3.Exercise of Option. The Option shall become exercisable as to one hundred percent (100%) of the Option Shares upon the date of hereof. The Option shall be exercised by delivering a written notice of exercise to the Assistant Secretary of the Company. The notice shall state the whole number of shares of Common Stock with respect to which the Option is being exercised and shall be signed by the person exercising the Option. In the event the Option is exercised by any person other than the Grantee, the notice shall be accompanied by proof, satisfactory to counsel for the Company, of the right of that person to exercise the Option.

SECTION 4. Term. The term of the Option (the “Option Term”) shall commence on the date hereof and expire on the earlier of (i) the tenth anniversary of the date of grant and (ii) one year from the date on which a Grantee ceases to be an Eligible Director.

SECTION 5. Restriction on Transfer. The Option may not be transferred, pledged, assigned, hypothecated or otherwise disposed of in any way by the Grantee and may be exercised during the lifetime of the Grantee only by the Grantee. If the Grantee dies, the Option shall thereafter be exercisable, in accordance with Section 6.4 of the Plan. The Option shall not be subject to execution, attachment or similar process. Any attempted assignment, transfer, pledge, hypothecation or other disposition of the Option contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the Option, shall be null and void and without effect.

SECTION 6. Notices. All notices, claims, certificates, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given and delivered if personally delivered or if sent by nationally-recognized overnight courier, by telecopy, or by registered or certified mail, return receipt requested and postage prepaid, addressed as follows:

(a)if to the Company, to it at:

The Cheesecake Factory Incorporated
26950 Agoura Road
Calabasas Hills, California 91301
Attention: David Overton,
                 Chairman of the Board and Chief Executive Officer

with copies to:

Buchalter, Nemer, Fields & Younger
18400 Von Karman Avenue, Suite 800
Irvine, CA 92612
Attention: Keith Bishop
Telephone: (949) 224-6293
Fax: (949) 224-6228

(b) if to the Grantee, to him at the address set forth:
in the Company’s records,

or to such other address as the party to whom notice is to be given may have furnished to the other party in writing in accordance herewith. Any such notice or communication shall be deemed to have been received (i) in the case of personal delivery, on the date of such delivery (or if such date is not a business day, on the next business day after the date of delivery), (ii) in the case of nationally-recognized overnight courier, on the next business day after the date sent, (iii) in the case of telecopy transmission, when received (or if not sent on a business day, on the next business day after the date sent), and (iv) in the case of mailing, on the third business day following that date on which the piece of mail containing such communication is posted.

SECTION 7. Waiver of Breach. The waiver by either party of a breach of any provision of this Agreement must be in writing and shall not operate or be construed as a waiver of any other or subsequent breach.

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SECTION 8. Grantee’s Undertaking. The Grantee hereby agrees to take whatever additional actions and execute whatever additional documents the Company may in its reasonable judgment deem necessary or advisable in order to carry out or effect one or more of the obligations or restrictions imposed on the Grantee pursuant to the express provisions of this Agreement and the Plan.

SECTION 9. Modification of Rights. The rights of the Grantee are subject to modification and termination in certain events as provided in this Agreement and the Plan.

SECTION 10. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF DELAWARE WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION’S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.

SECTION 11. Counterparts. This Agreement may be executed in one or more counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts together shall constitute but one agreement.

SECTION 12. Entire Agreement. This Agreement and the Plan (and the other writings referred to herein) constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior written or oral negotiations, commitments, representations and agreements with respect thereto.

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SECTION 13. Severability. It is the desire and intent of the parties hereto that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

IN WITNESS WHEREOF, the parties hereto have executed this Nonqualified Stock Option Agreement as of the date first written above.

THE CHEESECAKE FACTORY INCORPORATED, a Delaware corporation
By:
	Name:	David Overton
	Title:	Chairman of the Board and Chief Executive Officer

By:

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EX-99.2

EXHIBIT 99.2

The Cheesecake Factory Incorporated
2001 Omnibus Stock Incentive Plan
Nonqualified Stock Option Agreement

THIS AGREEMENT, entered into as of the Agreement Date (as defined in paragraph 1), by and between the Participant and The Cheesecake Factory Incorporated, a Delaware corporation (the “Company”);

WHEREAS, the Company maintains the 2001 Omnibus Stock Incentive Plan (the “Plan”), which is incorporated into and forms a part of this Agreement, and the Participant has been selected by the committee administering the Plan (the “Committee”) to receive a Nonqualified Stock Option award under the Plan;

NOW, THEREFORE, IT IS AGREED, by and between the Company and the Participant, as follows:

1.Terms of Award. For following terms used in this Agreement shall have the meanings set forth in this paragraph 1:

(a)The “Participant” is __________________.

(b)The“Agreement Date”is __________________.

(c)The number of “Covered Shares”shall be ___________ shares of Stock.

(d)The “Exercise Price” is $_________ per share.

2.Award and Exercise Price. The Participant is hereby granted an option (the “Option”) to purchase the number of Covered Shares of Stock at the Exercise Price per share as set forth in paragraph 1. The Option is not intended to constitute an “incentive stock option” as that term is used in Code section 422.

3.Date of Exercise.

(a)The Option shall become exercisable (each an “Exercise Date”) according to the following schedule.

As of the following Anniversary of the Agreement Date:	The Option shall become exercisable with respect to the following percentage of the Covered Shares:
One-year anniversary	20%
Two-year anniversary	20%
Three-year anniversary	20%
Four-year anniversary	20%
Fifth-year anniversary	20%

The Option shall not become exercisable in accordance with the foregoing schedule as of any anniversary if the Participant’s Date of Termination occurs before such anniversary. Exercisability under this schedule is cumulative, and after the Option becomes exercisable under the schedule with respect to any portion of the Covered Shares, it shall continue to be exercisable with respect to that portion of the Covered Shares until the “Expiration Date” (as defined below) or otherwise ceases to be exercisable under the Plan or this Agreement.

(b)No Option granted under this Agreement shall be exercisable on or after any Exercise Date unless the Company’s pre-tax income margin (defined as pre-tax income excluding the impact of discontinued operations, extraordinary items and accounting changes, if any, divided by total revenues) for the full fiscal year ended immediately prior to a specified Exercise Date equaled or exceeded the average per-tax income margin of a peer group consisting of at least three similarly situated, publicly held casual dining restaurant companies with at least 75% of their restaurants being company operated; such peer group being determined by the Committee in its reasonable discretion. Options not exercisable as a result of the failure of the Company to meet the performance condition specified above shall be added to the Options subject to exercise on the next Exercise Date, provided that the performance condition is then satisfied.

(c)Notwithstanding the foregoing provisions of this paragraph 3, the Option shall become exercisable with respect to all of the Covered Shares upon the date of a Change in Control, if the Change in Control occurs prior to the Participant’s Date of Termination, subject to and in accordance with Article X of the Plan.

4.Expiration. The Option shall not be exercisable on or after the Expiration Date. The “Expiration Date” shall be earliest to occur of:

(a)the ten-year anniversary of the Agreement Date;

(b)if the Participant’s Date of Termination occurs by reason of Disability or death, the one-year anniversary of such Date of Termination;

(c)if the Participant’s Date of Termination occurs by reason of Retirement, the third-year anniversary of such Date of Termination; or

(d)if the Participant’s Date of Termination occurs for reasons other than death, Disability, or Retirement, the 90 day anniversary of such Date of Termination.

Notwithstanding the other provisions of this Section 4, if the Participant’s Date of Termination occurs by reason of Cause neither the Participant, the Participant’s estate nor such other person who may then hold such Participant’s Option shall be entitled to exercise such Option on or after such Date of Termination.

5.Method of Option Exercise. The Option may be exercised in whole or in part by filing a written notice with the Assistant Secretary of the Company at its corporate headquarters prior to the Expiration Date. Such notice shall specify the whole number of shares of Stock that the Participant elects to purchase, and shall be accompanied by payment of the Exercise Price for the shares of Stock specified in the Participant’s notice. Payment shall be by cash or by check payable to the Company. Except as otherwise provided by the Committee before the Option is exercised: (i) all or a portion of the Exercise Price may be paid by the Participant by delivery of shares of unrestricted Stock acceptable to the Committee and having an aggregate Fair Market Value (valued as of the date of exercise) that is equal to the amount of cash that would otherwise be required, provided, however, that such shares of Stock have been held by Participant for at least six (6) months before delivery; and (ii) the Participant may pay the Exercise Price by authorizing a third party to sell shares of Stock (or a sufficient portion of the shares) acquired upon exercise of the Option and remit to the Company a sufficient portion of the sale proceeds to pay the entire Exercise Price and any tax withholding resulting from such exercise.

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6.Deferrals. The Committee may permit the Participant to defer receipt of the delivery of shares of Stock that would otherwise be due to such Participant under the Option. Any such deferral shall be subject to such rules and procedures as may be determined by the Committee.

7.Reload Provisions. A Participant who (i) is a Participant when he or she exercises an Option (the “Exercised Option”), (ii) has not received a Reload Option (as defined below) within the six (6) months prior to such exercise, and (iii) satisfies the Exercise Price or any required tax withholding applicable thereto with shares of Stock that have been held by the Participant for at least six (6) months, shall automatically be granted an additional Option (“Reload Option”) in an amount equal to the sum (“Reload Number”) of the number or shares of Stock tendered to exercise the Exercised Option plus, if so provided by the Committee, the number of shares of Stock, if any, retained by the Company in connection with the exercise of the Exercised Option to satisfy any federal, state or local tax withholding requirements; provided that no Reload Option shall be granted in connection with the exercise of an Option that has been transferred by the Participant. All Reload Options shall be Nonqualified Stock Options. Reload Options shall be subject to the following terms and conditions: (i) the grant date for each Reload Option shall be the date of exercise of the Exercised Option to which it relates; (ii) unless otherwise determined by the Committee, the Reload Option shall be fully vested and may be exercised at any time during the remaining term of the Exercised Option (subject to earlier termination as provided in the Plan or this Agreement); (iii) unless otherwise determined by the Committee, the terms of the Reload Option shall be the same as the terms of the Exercised Option to which it relates, except that the Exercise Price for the Reload Option shall, in every case, be 100% of the Fair Market Value of a share of Stock on the Pricing Date of the Reload Option; (iv) the Reload Option will be evidenced by an amendment to this Agreement or a new Option Agreement; and (v) no additional Reload Options shall be granted to the Participant when Options and/or Reload Options are exercised pursuant to the terms of the Plan following the Particpant’s Date of Termination.

8.Withholding. Prior to the delivery of any shares of Stock pursuant to the exercise of the Option, the Company has the power and the right to deduct or withhold from any amounts due to the Participant from the Company, or require the Participant to remit to the Company, an amount sufficient to satisfy federal, state and local taxes (including the Participant’s FICA obligation) required to be withheld with respect to such exercise.

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9.Transferability. Except as otherwise provided in this paragraph 9, the Option is not transferable other than as designated by the Participant by will or by the laws of descent and distribution, and during the Participant’s life, may be exercised only by the Participant. However, the Participant, with the approval of the Committee, may transfer the Option for no consideration to or for the benefit of the Participant’s Immediate Family (including, without limitation, to a trust for the benefit of the Participant’s Immediate Family or to a partnership or limited liability company for one or more members of the Participant’s Immediate Family), subject to such limits as the Committee may establish, and the transferee shall remain subject to all the terms and conditions applicable to the Option prior to such transfer. The foregoing right to transfer shall apply to the right to consent to amendments to this Agreement and shall also apply to the right to transfer ancillary rights associated with the Option. The term “Immediate Family” shall mean the Participant’s spouse, parents, children, stepchildren, adoptive relationships, sisters, brothers and grandchildren. Following transfer, the Option shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer, provided that the term “Participant” shall be deemed to include the transferee. The “Expiration Date” shall continue to be applied with respect to the original Participant, following which the Option shall be exercisable by the transferee only to the extent and for the periods specified in this Agreement. The Committee and the Company shall have no obligation to inform any transferee of the Option or of any expiration, termination, lapse or acceleration of such Option. The Company shall have no obligation to register with any federal or state securities commission or agency any Stock issuable or issued under an Option that has been transferred by the Participant under this Section 9.

10.Definitions. For purposes of this Agreement, except where the context clearly implies or indicates the contrary, the capitalized terms used in the Agreement shall have the meaning set forth in the Plan.

11.Heirs and Successors. This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of the Company’s assets and business. In the event of the Participant’s death prior to exercise of this Option, the Option may be exercised by the estate of the Participant to the extent such exercise is otherwise permitted by the Agreement.

12.Administration. The authority to manage and control the operation and administration of this Agreement shall be vested in the Committee, and the Committee shall have all powers with respect to this Agreement as it has with respect to the Plan. Any interpretation of the Agreement by the Committee and any decision made by it with respect to the Agreement is final and binding.

13.Plan Terms. Notwithstanding anything in this Agreement to the contrary, the terms of this Agreement shall be subject to the terms of the Plan, a copy of which may be obtained by the Participant from the Assistant Secretary of the Company. In the event of a conflict between any provision of this Agreement and the Plan, the provisions of the Plan shall control.

14.Amendment. This Agreement may be amended by written Agreement of the Participant and the Company, without the consent of any other person.

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15.Waiver of Breach. The waiver by either party of a breach of any provision of this Agreement must be in writing and shall not operate or be construed as a waiver of any other or subsequent breach.

16.Participant’s Undertaking. The Participant hereby agrees to take whatever additional actions and execute whatever additional documents the Company may in its reasonable judgment deem necessary or advisable in order to carry out or effect one or more of the obligations or restrictions imposed on the Participant pursuant to the express provisions of this Agreement and the Plan.

17.Modification of Rights. The rights of the Participant are subject to modification and termination in certain events as provided in this Agreement and the Plan.

18.Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF DELAWARE WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION’S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.

19.Resolution of Disputes.

(a)Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement or the Plan shall be settled by binding arbitration held in Los Angeles, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, except as specifically otherwise provided in this Section 19. This Section 19 shall be construed and enforced in accordance with the Federal Arbitration Act, notwithstanding any other choice of law provision in this Agreement. Notwithstanding the foregoing:

Either party hereto may, in its discretion, apply to the Superior Court for the County of Los Angeles or the federal District Court for the Central District of California for equitable relief and the Company and the Participant each agree not to make any such application except in such courts, agree that venue in such courts is acceptable, and waive any right to claim forum non conveniens. Such an application shall not be deemed a waiver of the right to compel arbitration pursuant to this Section.

(b)Arbitrators. The panel to be appointed shall consist of one neutral arbitrator selected by the Company, and acceptable to the Participant.

(c)Procedures. The arbitrator shall allow such discovery as the arbitrator(s) determine appropriate under the circumstances and shall resolve the dispute as expeditiously as practicable, and if reasonably practicable, within one hundred twenty (120) days after the selection of the arbitrator. The arbitrator shall give the parties written notice of the decision, with the reasons therefor set out, and shall have thirty (30) days thereafter to reconsider and modify such decision if any party so requests within ten (10) days after the decision.

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(d)Authority. The arbitrator shall have authority to award relief under legal or equitable principles, including interim or preliminary relief, and to allocate responsibility for the costs of the arbitration and to award recovery of attorneys fees and expenses in such manner as is determined to be appropriate by the arbitrator.

(e)Entry of Judgment. Judgment upon the award rendered by the arbitrator may be entered in any court having in personam and subject matter jurisdiction. Company and Participant hereby submit to the in personam jurisdiction of the Federal and State courts in Los Angeles, California, for the purpose of confirming any such award and entering judgment thereon.

(f)Confidentiality. All proceedings under this Section 19, and all evidence given or discovered pursuant hereto, shall be maintained in confidence by all parties and by the arbitrators.

(g)Continued Performance. The fact that the dispute resolution procedures specified in this Section 19 shall have been or may be invoked shall not excuse any party from performing its obligations under this Agreement and during the pendency of any such procedure all parties shall continue to perform their respective obligations in good faith.

20.No Employment Commitment by Company. Neither the Plan nor this Agreement constitutes an employment commitment by the Company, affects the Participant’s status as an employee-at-will who is subject to termination without cause, confers upon the Participant any right to remain employed by the Company or any Related Company, interferes in any way with the right of the Company or any Related Company at any time to terminate such employment, or affects the right of the Company or any Related Company to increase or decrease the Participant’s compensation or other benefits. The preceding sentence is subject, however, to the terms of any written employment agreement between the Participant and the Company (which may not be modified by any oral agreement).

21.Counterparts. This Agreement may be executed in one or more counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts together shall constitute but one agreement.

22.Entire Agreement. This Agreement, and the Plan (and the other writings referred to herein) constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior written or oral negotiations, commitments, representations and agreements with respect thereto.

23.Severability. It is the desire and intent of the parties hereto that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

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IN WITNESS WHEREOF, the Participant has executed this Agreement, and the Company has caused these presents to be executed in its name and on its behalf, all as of the Agreement Date.

PARTICIPANT

Print Name:

THE CHEESECAKE FACTORY INCORPORATED, a Delaware corporation
By:
	David Overton, Chairman of the Board and Chief Executive Officer

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