Employment Agreement - Cheesecake Factory Inc. and David M. Overton
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "AGREEMENT") is entered into this 16th day
of January, 1998, between THE CHEESECAKE FACTORY INCORPORATED (the "Company")
and DAVID M. OVERTON (the "Employee").
WHEREAS, the Board of Directors of the Company (the "Board") has approved
and authorized the entry into this Agreement with the Employee; and
WHEREAS, the parties desire to enter into this Agreement setting forth the
terms and conditions for the employment relationship to the Employee with 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 Employee hereby agree as follows:
1. EMPLOYMENT. The Employee is employed as Chief Executive Officer and
Chairman of the Board of the Company. In this capacity, the Employee shall have
such duties and responsibilities as may be designated to him by the Board from
time to time and as are not inconsistent with the Employee's position with
respect to any subsidiaries of the Company, as may be designated by the Board.
Employee shall devote substantially all his time, attention and energies to the
business and affairs of the Company and the subsidiaries. The Company
acknowledges that the Employee is a member of the Board and that such membership
constitutes an integral part of the Employee's duties hereunder.
2. TERM. The "initial term" of this Agreement shall be for the period
commencing on the date hereof and ending on the third anniversary of the date
hereof; PROVIDED, HOWEVER, that on the such anniversary, and on each subsequent
anniversary date thereafter, the term of this Agreement shall automatically be
extended for one additional year unless, not later than 90 days prior to such
applicable anniversary date, the Company or the Employee shall give notice not
to extend this Agreement. The "Term of this Agreement" or "Term" shall mean,
for purposes of this Agreement, both the "initial term" and subsequent
extensions, if any.
3. SALARY. Subject to the further provisions of this Agreement, the
Company shall pay the Employee during the Term of this Agreement a salary at an
annual rate equal to $400,000, with such salary to be increased at such times,
if any, and in such amounts as determined by the Board. Any increase in salary
shall not serve to limit or reduce any other obligation of the Company hereunder
and, after any increase, the Base Salary shall not be reduced. Such salary
shall be payable by the Company to the Employee not less frequently than
monthly. Participation in deferred compensation, discretionary bonus,
retirement, stock option and other employee benefit plans and in fringe benefits
shall not reduce the Base Salary.
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4. PARTICIPATION IN BONUS, RETIREMENT AND EMPLOYEE BENEFIT PLANS. The
Employee shall be entitled to participate equitably with other executive
officers in any plan of the Company relating to bonuses, stock options, stock
purchases, pension, thrift, profit sharing, life insurance, medical coverage,
education, or other retirement or employee benefits that the Company has adopted
or may adopt for the benefit of its executive officers.
5. FRINGE BENEFITS; AUTOMOBILE; HEATH INSURANCE. The Employee shall be
entitled to receive all other fringe benefits which are now or may be provided
to the Company's executive officers. In addition, the Company shall provide the
Employee during the Term of this Agreement (a) with a non-accountable car
allowance of $1,600 per month, and (b) reimbursement to Employee and his family
members for any co-payment or deductible incurred under the Company's health
insurance policies.
6. VACATIONS. The Employee shall be entitled to an annual paid vacation
in accordance with the Company's general administrative policy.
7. BUSINESS EXPENSES. During such time as the Employee is rendering
services hereunder, the Employee shall be entitled to incur and be reimbursed
for all reasonable business expenses. The Company agrees that it will reimburse
the Employee for all such expenses upon the presentation by the Employee, from
time to time, of an itemized account of such expenditures setting forth the
date, the purposes for which incurred, and the amounts thereof, together with
such receipts showing payments in conformity with the Company's established
policies. Reimbursement shall be made within a reasonable period after the
Employee's submission of an itemized account.
8. INSURANCE. The Employee shall be entitled to term insurance on the
life of the Employee with such beneficiary as the Employee may designate in an
amount equal to at least $1,000,000, with all premiums to be paid by the
Company.
9. INDEMNITY. The Company shall indemnify and hold the Employee harmless
from any cost, expense or liability arising out of or relating to any acts or
decisions made by the Employee on behalf of or in the course of performing
services for the Company to the same extent the Company indemnifies and holds
harmless other executive officers and directors of the Company and in accordance
with the Company's established policies. The Company agrees to seek to maintain
Directors and Officers Liability Insurance.
10. CERTAIN TERMS DEFINED. For purposes of this Agreement:
(a) Employee shall be deemed to be "Permanently Disabled" if a
physical or mental condition occurs and persists which, in the written opinion
of a licensed physician selected by the Board of Directors in good faith, has
rendered Employee unable to perform Employee's duties hereunder for a period of
ninety (90) days or more and, in the written opinion of such physician, the
condition will continue for an indefinite period of not less than an additional
ninety (90) day period, rendering the Employee unable to return to Employee's
duties.
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(b) "Affiliate" means any corporation affiliated with any Person
whose actions result in a Change of Control (or which, as a result of the
completion of the transactions causing a Change of Control shall become
affiliated) within the meaning of the Code.
(c) "Base Salary" means, as of any date of termination of employment,
the highest annual base salary of Employee in any of the last three fiscal years
preceding such date of termination of employment.
(d) "Beneficial Owner" shall have the meaning given to such term in
the Exchange Act.
(e) "Cause" means termination upon: (1) the willful failure by the
Employee to substantially perform his duties with the Company (other than any
such failure resulting from his incapacity due to physical or mental illness),
after a written demand for substantial performance is delivered to him by the
Board, which demand specifically identifies the manner in which the Board
believes that he has not substantially performed his duties; (2) the Employee's
willful misconduct that is demonstrably and materially injurious to the Company,
monetarily or otherwise; or (3) the Employee's commission of such acts of
dishonesty, fraud, misrepresentation or other acts of moral turpitude as would
prevent the effective performance of his duties. No act, or failure to act, on
the Employee's part shall be deemed "willful" unless done, or omitted to be
done, by him not in good faith and without the reasonable belief that his action
or omission was in the best interest of the Company. Notwithstanding the
foregoing, the Employee shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to him a copy of a resolution
duly adopted by the affirmative vote of a majority of the members of the Board
at a meeting of such members (after reasonable notice to him and an opportunity
for him, together with his counsel, to be heard before such members of the
Board), finding that he has engaged in the conduct set forth above in this
subsection (e) and specifying the particulars thereof in detail.
(f) A "Change of Control" occurs if:
(i) any Person (other than Employee) or that Person's Affiliate
is or becomes the Beneficial Owner, directly or indirectly, of securities of the
Company representing 20% of 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), other
than:
I. 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 80% of the combined
voting power of the Voting Securities
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of the Company or such surviving entity outstanding immediately after such
merger or consolidation;
II. a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no Person
acquires more than 20% of the combined voting power of the Company's then
outstanding Voting Securities; or
III. a merger or consolidation which 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 paragraph (iv), "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 24 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;
(g) "Code" means the Internal Revenue Code of 1986, as amended.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(i) "Person" is given the meaning as such term is used in Sections
13(d) and 14(d) of the Exchange Act; provided, however, that unless this
Agreement provides to the contrary, the term shall not include the Company, any
trustee or other fiduciary holding securities under an employee benefit plan of
the Company, or any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
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11. TERMINATION.
(a) DEATH OR DISABILITY. This Agreement shall terminate
automatically upon the Employee's death or Permanent Disability.
(b) CAUSE. The Company may terminate Employee for Cause.
(c) CHANGE OF CONTROL. Employee may terminate this Agreement at any
time within 18 months after a Change of Control.
(d) NOTICE OF TERMINATION. Any termination of the Employee's
employment by the Company for Cause or following a Change of Control shall be
communicated by Notice of Termination to the other party hereto given in
accordance with Section 16. Any termination by the Company due to Permanent
Disability shall be communicated by giving written notice of its intention to
terminate the Employee's employment, and his employment shall terminate after
receipt of such notice ("Disability Effective Date"). For purposes of this
Agreement, a "Notice of Termination" means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon; (ii) except in
the event of a termination following a Change of Control, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Employee's employment under the provision so indicated; and
(iii) specifies the Date of Termination (defined below).
(e) DATE OF TERMINATION. "Date of Termination" means the date of
actual receipt of the Notice of Termination or any later date specified therein
(but not more than fifteen (15) days after the giving of the Notice of
Termination), as the case may be; provided that (i) if the Employee's employment
is terminated by the Company for any reason other than Cause or because the
Employee becomes Permanently Disabled, the Date of Termination is the date on
which the Company notifies the Employee of such termination; (ii) if the
Employee's employment is terminated due to Permanent Disability, the Date of
Termination is the Disability Effective Date; and (iii) if the Employee's
employment is terminated due to the Employee's death, the Date of Termination
shall be the date of death.
12. CERTAIN BENEFITS UPON TERMINATION.
(a) If Employee's employment by the Company is terminated for any
reason (including by reason of death or Permanent Disability), except for a
termination for Cause or a voluntary resignation by Employee, and Section 12(b)
is inapplicable to such termination, then the Company shall pay Employee a lump
sum severance payment (the "Severance Payment") equal to three times Employee's
Base Salary.
(b) If within 18 months after a Change of Control of the Company,
Employee gives notice of termination of employment for any reason, gives notice
of nonrenewal, or Employee otherwise terminates employment (other than due to
Employee's
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death or Permanent Disability) or is terminated by the Company without Cause,
(i) the Company shall pay Employee a Severance Payment in cash equal to $2
million, provided, however, that in the event of a Change of Control and
Employee dies or becomes Permanently Disabled within 18 months after such
Change of Control, then the Severance Payment shall be equal to three times
Employee's Base Salary and, (iii) for 36 months (the "Continuation Period")
the Company shall at its expense continue on behalf of the Employee and his
dependents and beneficiaries, the life insurance, disability, medical, dental
and hospitalization benefits provided (x) to the Employee at any time during
the 90-day period prior to the date of termination or at any time thereafter
or (y) to other similarly situated executives who continue in the employ of
the Company during the continuation period. The coverage and benefits
(including deductibles and costs) provided in this Section 12(b) during the
Continuation Period shall be no less favorable to the Employee and his
dependents and beneficiaries, than the most favorable of such coverages and
benefits during any of the periods referred to in clauses (x) and (y) above.
The Company's obligation hereunder with respect to the foregoing benefits
shall be limited to the extent that the Employee obtains any such benefits
pursuant to a subsequent employer's benefit plans, in which case the Company
may reduce the coverage of any benefits it is required to provide the
Employee hereunder so long as the aggregate coverages and benefits of the
combined benefit plans is no less favorable to the Employee than the
coverages and benefits required to be provided hereunder. This Section 12(b)
shall not be interpreted so as to limit any benefits to which the Employee,
his dependents or beneficiaries may be entitled under any of the Company's
employee benefit plans, programs or practices following the Employee's
termination of employment, including without limitation, retiree medical and
life insurance benefits.
(c) In the event either (a) or (b) above occurs, (i) in addition to
the Severance Payment provided therein, the Company shall pay all accrued but
unpaid salary and amounts due under the Company's Performance Incentive Plan or
any other bonus or incentive plan then in effect, and all accrued but unpaid or
unused vacation, sick pay and expense reimbursement benefit, and (ii) all other
benefits shall vest (unless a plan specifically provides vesting standards in
which event the plan's terms and conditions shall govern vesting).
(d) In the event that Employee's employment terminates by reason of
Employee's death, all benefits provided in this Section 12 shall be paid to
Employee's estate or as Employee's executor shall direct, but payment may be
deferred until Employee's executor or personal representative has been appointed
and qualified pursuant to the laws in effect in Employee's jurisdiction of
residence at the time of Employee's death.
(e) Company shall make all cash payments to which Employee is
entitled hereunder within thirty (30) days following the date of termination of
Employee's employment or earlier, if required by applicable law.
(f) In the event Employee has provided notice to the Company of his
intent to terminate or not renew this Agreement pursuant to Section 2 or Company
has
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provided written notice to the Employee of its intent not to renew this
Agreement pursuant to Section 2:
(i) SALARY AND BENEFITS. The salary and other benefits to
which Employee would have otherwise been entitled shall continue through the
remainder of the period of notice specified by Section 2, provided that Employee
is otherwise in compliance with the terms of this Agreement, unless (x) Employee
subsequently terminates his employment or the Company terminates Employee's
employment for Cause, (y) Employee is entitled to the Severance Payment provided
in Section 12(a) pursuant to the provisions of Section 12(f)(ii), or (z)
Employee is entitled to the Severance Payment provided in Section 12(b).
(ii) SECTION 12(a) BENEFIT. Employee shall be entitled to
the extraordinary payment provided in Section 12(a) (unless Employee is
otherwise entitled to the Severance Payment provided by Section 12(b)) in the
event that, subsequent to such notice, (x) Employee is terminated without Cause
by the Company, or (y) Employee's employment terminates due to death or
Permanent Disability.
(iii) SECTION 11(b) BENEFIT. Employee shall have no rights
under Section 12(b); provided, however, that if Company and a third party have
executed a commitment letter or agreement under which a Change of Control is to
occur and such agreement was entered into prior to the Company having provided
notice to Employee of its intent not to renew pursuant to Section 2, then
Employee shall be entitled to the extraordinary payment provided in Section
12(b), if that Change of Control in fact occurs.
(g) In the event Employee is entitled hereunder to any payments or
benefits set forth in Section 12(a) or (b), Employee shall have no obligation to
notify Company of employment subsequent to Employee's termination or to offset
Company's obligation by payments due to such employment and shall have no duty
to mitigate.
(h) The provisions for Severance Payments contained in this Section
12 may be triggered only once during the term of this Agreement, so that, for
example, should Employee be terminated because of a Permanent Disability and
should there thereafter be a Change of Control, then Employee would be entitled
to be paid only under Section 12(a) and not under Section 12(b) as well. In
addition, Employee shall not be entitled to receive severance benefits of any
kind from any wholly owned subsidiary or other affiliated entity of the Company
if in connection with the same event of series of events the Severance Payments
provided for in this Section 12 have been triggered.
(i) Excise Tax Payments:
(i) In the event that any payment or benefit (within the
meaning of Section 280G(b)(2) of the Code, to the Employee or for his benefit
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise in connection with, or arising out of, his employment
with the Company or a change in
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ownership or effective control of the Company or of a substantial portion of
its assets (a "Payment" or "Payments"), would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties are incurred
by the Employee with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively referred
to as the "Excise Tax"), then the Employee will be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Employee of all taxes (including any interest or penalties,
other than interest and penalties imposed by reason of the Employee's failure
to file timely a tax return or pay taxes shown due on his return, imposed
with respect to such taxes and the Excise Tax), including any Excise Tax
imposed upon the Gross-Up Payment, the Employee retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(ii) An initial determination as to whether a Gross-Up
Payment is required pursuant to this Agreement and the amount of such
Gross-Up Payment shall be made at the Company's expense by an accounting firm
selected by the Company and reasonably acceptable to the Employee which is
designated as one of the four largest accounting firms in the United States
(the "Accounting Firm"). The Accounting Firm shall provide its determination
(the "Determination"), together with detailed supporting calculations and
documentation to the Company and the Employee within five days of the
Termination Date if applicable, or such other time as requested by the
Company or by the Employee (provided the Employee reasonably believes that
any of the Payments may be subject to the Excise Tax) and if the Accounting
Firm determines that no Excise Tax is payable by the Employee with respect to
a Payment or Payments, it shall furnish the Employee with an opinion
reasonably acceptable to the Employee that no Excise Tax will be imposed with
respect to any such Payment or Payments. Within ten days of the delivery of
the Determination to the Employee, the Employee shall have the rights to
dispute the Determination (the "Dispute"). The Gross-Up Payment, if any, as
determined pursuant to this Section 12(i)(ii) shall be paid by the Company to
the Employee within five days of the receipt of the Accounting Firm's
determination. The existence of the Dispute shall not in any way affect the
Employee's right to receive the Gross-Up Payment in accordance with the
Determination. Upon the final resolution of a Dispute, the Company shall
promptly pay to the Employee any additional amount required by such
resolution. If there is no Dispute, the Determination shall be binding, final
and conclusive upon the Company and the Employee.
(j) Company agrees to take reasonable steps to ensure that in the
event Company has an obligation to perform under Section 12(b), Company shall
have the financial ability to do so.
13. FEES AND EXPENSES. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Employee as they become due as a result of (a) the Employee's termination of
employment (including all such fees and expenses, if any, incurred in contesting
or disputing any such termination or employment), or (b) the Employee seeking to
obtain or enforce any right or benefit
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provided by this Agreement or by any other plan or arrangement maintained by
the Company under which the Employee is or may be entitled to receive
benefits.
14. NO SET OFF, INTEREST. Except as provided herein, the Company's
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any circumstances,
including without limitation any set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Employee or others. All
amounts provided herein shall include, in each case, interest, compounded
quarterly, on the total unpaid amount determined to be payable under this
Agreement, such interest to be calculated on the basis of the prime commercial
lending rate announced by Bank of America National Trust and Savings Association
in effect from time to time during the period of such nonpayment.
15. ASSIGNMENT.
(a) This Agreement is personal to each of the parties hereto. No
party may assign or delegate any rights or obligations hereunder without first
obtaining the written consent of the other party hereto, except that this
Agreement shall be binding upon and inure to the benefit of any successor
corporation to the Company.
(b) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes this Agreement by operation of law, or otherwise.
(c) This Agreement shall inure to the benefit of and be enforceable
by the Employee and his personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
16. (a) CONFIDENTIAL INFORMATION. During the Term of this Agreement and
thereafter, the Employee shall not, except as may be required to perform his
duties hereunder or as required by applicable law, disclose to others for use,
whether directly or indirectly, any Confidential Information regarding the
Company. "Confidential Information" shall mean information about the Company,
its subsidiaries and affiliates, and their respective clients and customers that
is not available to the general public and that was learned by the Employee in
the course of his employment by the Company, including (without limitation) any
data, formulae, information, proprietary knowledge, trade secrets and client and
customer lists and all papers, resumes, records and the documents containing
such Confidential Information. The Employee acknowledges that such Confidential
Information is specialized, unique in nature and of great value to the Company,
and that such information gives the Company a competitive advantage. Upon the
termination of his
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employment, the Employee will promptly deliver to the Company all documents
(and all copies thereof) containing any Confidential Information.
(b) NONCOMPETITION. The Employee agrees that during the Term of this
Agreement, he will not, directly or indirectly, without the prior written
consent of the Company, provide consultative service with or without pay, own,
manage, operate, join, control, participate in, or be connected as a
stockholder, partner, or otherwise with any business, individual, partner, firm,
corporation, or other entity which is then in competition with the Company or
any present affiliate of the Company; PROVIDED, HOWEVER, that the "beneficial
ownership" by the Employee, either individually or as a member of a "group," as
such terms are used in Rule 13d of the Exchange Act, of not more than 1% of the
voting stock of any publicly held corporation shall not be a violation of this
Agreement. It is further expressly agreed that the Company will or would suffer
irreparable injury if the Employee were to compete with the Company or any
subsidiary or affiliate of the Company in violation of this Agreement and that
the Company would by reason of such competition be entitled to injunctive relief
in a court of appropriate jurisdiction, and the Employee further consents and
stipulates to the entry of such injunctive relief in such a court prohibiting
the Employee from competing with the Company or any subsidiary or affiliate of
the Company in violation of this Agreement.
(c) RIGHT TO COMPANY MATERIALS. The Employee agrees that all styles,
designs, recipes, lists, materials, books, files, reports, correspondence,
records, and other documents ("Company Material") used, prepared, or made
available to the Employee, shall be and shall remain the property of the
Company. Upon the termination of his employment or the expiration of this
Agreement, all Company Materials shall be returned immediately to the Company,
and Employee shall not make or retain any copies thereof.
(d) ANTISOLICITATION. The Employee promises and agrees that during
the Term of this Agreement, and for a period of one year thereafter, he will not
influence or attempt to influence customers, franchisees, landlords, or
suppliers of the Company or any of its present or future subsidiaries or
affiliates, either directly or indirectly, to divert their business to any
individual, partnership, firm, corporation or other entity then in competition
with the business of the Company, or any subsidiary or affiliate of the Company.
17. NOTICE. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth below, or to such other
addresses as either party may have furnished to the other in writing in
accordance herewith, except that notice of a change of address shall be
effective only upon actual receipt:
Company: The Cheesecake Factory Incorporated
26950 Agoura Road
Calabasas, California 91301
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with a copy to: the Secretary of the Company;
Employee: David M. Overton
1250 Beverly Estate Dr.
Beverly Hills, Ca 90210
18. AMENDMENTS OR ADDITIONS. No amendment or additions to this Agreement
shall be binding unless in writing and signed by both parties hereto.
19. SECTION HEADINGS. The section headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.
20. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
21. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but both of which together will
constitute one and the same instrument.
22. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators in Los Angeles, California, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
23. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed
to in writing and signed by the Employee and such officer as may be
specifically designated by the Board. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly
set forth in this Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California without regard to its conflicts of law principles. All references
to sections of the Exchange Act or the Code shall be deemed also to refer to
any successor provisions to such sections.
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Any payments provided for hereunder shall be paid net of any applicable
withholding required under federal, state or local law. Sections 13, 15 and 21
shall survive the expiration of the Term of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
on the date first indicated above.
COMPANY:
THE CHEESECAKE FACTORY INCORPORATED
By /s/
-----------------------------
Secretary
EMPLOYEE:
/s/
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David Overton
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