Exhibit 99.1
Second Amendment
to
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:
(j)
Regulations means the official Treasury Department
interpretation of the Internal Revenue Code.
(k)
Separation from Service means a separation from service as that
term is used in Code Section 409A(a)(2)(i) and the Regulations
thereunder.
2.
Section 14(b) of the Employment Agreement is deleted in its
entirety and the following provision substituted in its place:
“14. (b)
If within 18 months after a Change of Control of the Company, the
Employee gives notice of termination of employment for any reason,
gives notice of nonrenewal, or the Employee otherwise terminates
employment (other than due to the Employee’s death or
Permanent Disability) or is terminated by the Company without
Cause, (i) the Company shall pay to the Employee a Severance
Payment in cash equal to the greater of $2,000,000 or three times
the Employee’s Base Salary, (ii) 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 employees who
continue in the employ of the Company during the continuation
period. The coverage and benefits (including deductibles and costs)
provided in
this Section 14(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 14(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. All
benefits including medical and life insurance benefits shall be
limited by and be designed to either (I) be exempt from Code
Section 409A by reason of qualification under Regulation Section
1.409A-1(a)(9)(v)(B) and/or (D) (which shall be aggregated with all
other benefits which would qualify thereunder) or (II) be compliant
with the requirements of Regulations 1.409A-3(i).”
3.
Section 14. (e) of the Employment Agreement is deleted in
its entirety and the following provision substituted in its
place:
“14. (e)
In the event that the Employee’s employment is terminated
other than by reason of death, the Company shall make all cash
payments to which the Employee is entitled hereunder within one (1)
business day following the date that is six (6) months after the
date of Employee’s Separation from Service. In the event that
the Employee’s employment is terminated by reason of the
Employee’s death, the Company shall make all cash payments to
which the Employee is entitled hereunder within thirty (30) days
following the Date of Termination, provided that the Company may
defer payment in the case of the Employee’s death until the
Employee’s executor or personal representative has been
appointed and qualified pursuant to the laws in effect in the
Employee’s jurisdiction of residence at the time of the
Employee’s death.”
4. Section 15 of
the Employment Agreement is deleted in its entirety and the
following provision substituted in its place:
“15.
Consulting Services .
(a)
If the Employee’s full-time employment by the Company
pursuant to this Agreement is terminated for any reason, except for
termination by reason of death, Permanent Disability, for Cause, or
by voluntary resignation by the Employee and Section 14(b) is
inapplicable, the Employee may elect to provide consulting se
