CAKE » Topics » Employment Agreement

These excerpts taken from the CAKE 8-K filed Jan 5, 2009.

Employment Agreement

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 



 

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

 

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

 

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

 

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

 

.”

 

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

 

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

 

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

 

 

“COMPANY”

 

“EMPLOYEE”

 

 

 

The Cheesecake Factory Incorporated

 

David Overton

A Delaware corporation

 

 

 

 

 

 

 

 

By:

 

 

 

Printed Name:

 

 

 

Title:

 

 

 

 

2


Employment Agreement

 

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

 

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

 

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

 

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

 

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

 

“(e) A “Change of Control” occurs if:

 

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

 

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

 

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

 

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

 

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

 



 

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

 

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

 

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

 

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

 

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

 

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

 

 

“COMPANY”

 

“EMPLOYEE”

 

 

 

The Cheesecake Factory Incorporated

 

Debby Zurzolo

A Delaware corporation

 

 

 

 

 

 

 

 

By:

 

 

 

Printed Name:

 

 

 

Title:

 

 

 

 

2


Employment Agreement

 

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

 

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

 

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

 

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

 

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

 

“(e) A “Change of Control” occurs if:

 

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

 

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

 

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

 

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

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

 



 

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

 

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

 

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

 

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

 

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

 

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

 

 

“COMPANY”

 

“EMPLOYEE”

 

 

 

The Cheesecake Factory Incorporated

 

Max Byfuglin

A Delaware corporation

 

 

 

 

 

 

 

 

By:

 

 

 

Printed Name:

 

 

 

Title:

 

 

 

 

2


These excerpts taken from the CAKE 8-K filed Dec 10, 2007.

Employment Agreement

 

This First Amendment to Employment Agreement (“First Amendment”) is entered into as of December 4, 2007 by and between The Cheesecake Factory Incorporated, a Delaware corporation (the “Company”) and                                (the “Employee”).

 

WHEREAS, the Company and the Employee have previously entered into an Employment Agreement as of January 23, 2006 (the “Employment Agreement”);

 

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

 

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

 

1.                                       Section 4  of the Employment Agreement is deleted in its entirety and the following provision substituted in its place:

 

“4.                                 Participation in Bonus, Retirement and Employee Benefit Plans. While employed by the Company during the Term of this Agreement, the Executive shall be entitled to participate equitably with other Executive Officers in any plan of the Company relating to pension, profit sharing, life insurance, medical coverage, education, automobile allowance or leasing, or other retirement or employee benefits that the Company has adopted or may adopt for the benefit of its Executive Officers, to the extent eligible thereunder by virtue of the Executive’s position, tenure and salary. The Compensation Committee shall determine the amount and timing of awards, if any, under the Company’s equity compensation and bonus plans. In the event any bonus, retirement or employee benefit provides for receipt of taxable compensation in a year subsequent to the year in which such taxable compensation is no longer subject to a substantial risk of forfeiture, that benefit shall not be provided to the Executive unless that benefit is either exempt from or compliant with Code Section 409A.”

 

2.                                       Section 9 of the Employment Agreement is amended by adding the following definitions:

 

(n)                           Involuntary Separation means an involuntary separation as that term is defined in Regulation Section 1.409A-1(b)(9)(iii).

 

Employment Agreement

 

This Second Amendment to Employment Agreement (“Second Amendment”) is entered into as of December 4, 2007 by and between The Cheesecake Factory Incorporated, a Delaware corporation (the “Company”) and David M. Overton (the “Employee”).

 

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

 

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

 

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

 

1.                                       Section 12 of the Employment Agreement is amended by adding the following definitions:

 

This excerpt taken from the CAKE 10-Q filed Oct 26, 2007.

EMPLOYMENT AGREEMENT

This EMPLOYMENT AGREEMENT (the “Agreement”) is entered into this 6th day of September, 2007, between THE CHEESECAKE FACTORY INCORPORATED, a Delaware corporation (the “Company”) and Russell Bendel (the “Executive”).

WHEREAS, on August 14, 2007 the Compensation Committee (the “Compensation Committee”) of the Board of Directors (the “Board”) of the Company approved and authorized the entry into this Agreement with the Executive; and

WHEREAS, the parties desire to enter into this Agreement setting forth the terms and conditions for the employment relationship between the Executive and the Company;

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

1.             Employment.  The Executive is employed as the President and Chief Operations Officer of the Cheesecake Factory Restaurants Inc., a wholly owned subsidiary of the Company.  In such capacity, the Executive shall have such duties and responsibilities to the Company and its subsidiaries as may be designated to the Executive by the Board from time to time and as are not inconsistent with the Executive’s position.  The Executive shall devote substantially all the Executive’s working time, attention and energies to the business and affairs of the Company and the Company’s subsidiaries.  The Executive shall report directly to the Chief Executive Officer of the Company.  While employed by the Company during the Term of this Agreement, the Executive shall not serve as the member of the board of directors of any other for-profit corporation or as the manager of any limited liability company.  Without the prior written approval of the Chief Executive Officer, the Executive shall not serve as the member of the board of directors or trustees of any non-profit or charitable organization; provided, however, such restriction shall not apply to The Cheesecake Factory Oscar and Evelyn Overton Foundation or the California Restaurant Association.

2.             Term.  The initial “Term of this Agreement” shall mean the period commencing on the date hereof and ending on September 6, 2010.  On such date, and on each subsequent September 6th thereafter, the Term of this Agreement shall be automatically extended for one additional calendar year unless, at least ninety (90) days prior to September 6th of each year during the Term of this Agreement, either the Company or the Executive shall give notice not to extend this Agreement.  Unless otherwise terminated earlier in accordance with Section 9, “The Term of this Agreement” shall mean, for purposes of this Agreement, such initial three-year term and subsequent extensions, if any.

3.             Benefits.  During the Term of this Agreement, Executive shall be eligible for the following compensation and benefits:




(a)           Annual Salary. Subject to the further provisions of this Agreement, the Company shall pay the Executive during the Term of this Agreement a base salary at an annual rate during the Term equal to $450,000, with such salary to be adjusted at such times, if any, and in such amounts as determined by the Compensation Committee (“Annual Salary”), provided, however, the Executive’s Annual Salary shall not be decreased without the Executive’s prior written consent unless the annual salaries of all other Executive Officers are proportionately decreased.  Any increase in salary shall not serve to limit or reduce any other benefit or obligation of the Company hereunder.  The Company shall pay such salary to the Executive, in equal installments, not less frequently than monthly in accordance with the Company’s standard payroll practices for employees who are Executive Officers of the Company.  The Executive’s participation in deferred compensation, discretionary and/or performance bonus, retirement, stock option and/or other employee benefit plans and in fringe benefits shall not reduce the Executive’s Annual Salary.

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