Exhibit 99.1
The Cheesecake Factory
Incorporated
Year 2001 Omnibus Stock Incentive Plan
NOTICE AND AGREEMENT OF GRANT OF
STOCK OPTION
AND/OR RESTRICTED SHARE AWARD
Notice is hereby given of the
following option grant to purchase shares and/or award of
restricted shares of the Common Stock, $.01 par value per share, of
The Cheesecake Factory Incorporated, Delaware corporation pursuant
to the Year 2001 Omnibus Stock Incentive Plan, amended and restated
April 5, 2004, as further amended July 23, 2008
(“Plan”). In consideration of the promises and of
the mutual agreements contained in this Notice and Agreement of
Grant of Stock Option and/or Restricted Share Award
(“Agreement”), the parties hereto agree as
follows:
Section 1.
Definitions . As used in this Agreement, the following
terms shall have the following respective meanings:
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Code
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The Internal Revenue Code of 1986,
as amended.
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Company
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The Cheesecake Factory Incorporated,
a Delaware corporation.
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Grant Date
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May 7, 2009
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Grantee
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David Overton
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Holdback Shares
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Shares of common stock issued upon
exercise of the Option granted pursuant to the Plan and this
Agreement equal to 33% of the shares received upon exercise of this
Option, net of the tax effects of such exercise to the
Grantee.
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No. of Restricted Shares
Awarded
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50,000
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No. of Non-Statutory
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100,000
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Option Shares Granted
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Option
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The option to purchase shares of the
Company’s Common Stock granted to Grantee pursuant to the
Plan and this Agreement. The Option is not intended to constitute
an “incentive stock option” as that term is used in
Code section 422.
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Option Exercise Price
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$16.48 per share
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Option Expiration Date
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May 7, 2017
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QDRO
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A domestic relations order as
defined in Code section 414(p)(1)(B).
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Restricted Shares
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The shares of the Company’s
Common Stock awarded to Grantee pursuant to the Plan and this
Agreement.
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Option Vesting Date
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May 7, 2010, as to 20,000Option
Shares
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May 7, 2011, as to 20,000
Option Shares
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May 7, 2012, as to 20,000
Option Shares
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May 7, 2013, as to 20,000
Option Shares
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May 7, 2014, as to 20,000
Option Shares
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Restricted Shares Vesting
Date
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May 7, 2012 and satisfaction of
the Performance Objective, as to 50,000 Restricted
Shares
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1
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Performance Objective
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The Company’s cumulative
earnings per share of Common Stock for the period commencing with
the Second quarter of fiscal year 2009 and ending with the First
quarter of fiscal year 2012 equals or exceeds Two Dollars
($ 2.00) per share
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Section 2. Designation
of Award . Subject to the terms and conditions of the
Plan and this Agreement, the Company grants to Grantee the Option
to purchase the number of Option Shares shown above and/or grants
to Grantee the number of Restricted Shares shown above.
Section 3.
Interpretation . Capitalized terms used in this
Agreement and not otherwise defined shall have the meanings
ascribed thereto in the Plan. The terms and provisions of the
Plan are hereby incorporated into this Agreement as if set forth
herein in their entirety. Grantee hereby agrees to be bound
by the terms of the Plan and this Agreement and acknowledges that
the Option is and/or Restricted Shares are granted subject to and
in accordance with the Plan and this Agreement. In the event
of a conflict between any provision of this Agreement and the Plan,
the provisions of the Plan shall control. By execution below,
Grantee acknowledges receipt of a copy of the Year 2001 Omnibus
Stock Plan Summary and Prospectus. A copy of the Plan is available,
without charge, upon request.
Section 4. Termination
of Option . The term of the Option shall commence on the
Grant Date and expire on the earlier of (a) the Date of
Expiration set forth above, (b) the eight-year anniversary of
the date on which the Option is granted; or (c) if
Grantee’s employment is terminated, and such termination of
employment occurs by reason of (i) death or Disability (as
defined in the Plan), the one-year anniversary of such termination
of employment; (ii) Retirement (as defined in the Plan), the
third-year anniversary of such date of Retirement (other than in
the case of an Incentive Stock Option); or (iii) other
than Retirement, death or Disability, or Cause (as defined in the
Plan), the 90-day anniversary of such termination of
employment. Notwithstanding the above, if Grantee’s
termination of employment occurs by reason of Cause neither the
Grantee nor the Grantee’s estate nor such other person who
may then hold the Option shall be entitled to exercise such Option
on or after the date of termination of employment.
Section 5. Restricted
Shares and Forfeiture; Performance Objective . The
unvested portion of the Restricted Shares is subject to
forfeiture. Except as provided in this Agreement, in order to
vest in and not forfeit the Restricted Shares, the Grantee must
remain employed by the Company or one of its affiliates until the
Restricted Shares Vesting Date (as such date may be accelerated
pursuant to Section 6(f) below) and until the Restricted
Shares Vesting Date the Grantee may not transfer (as defined in
Section 7) any unvested Restricted Shares
(“Restrictions”). In addition, in order for the
Restricted Shares to vest, the Performance Objective must be
satisfied.
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Section 6. Vesting
Date; Lapse of Restrictions .
Except as otherwise provided in the
Plan or this Agreement, the Option Vesting Date and/or the
Restricted Shares Vesting Date shall occur as follows:
(a)
The Option, or portion thereof, shall be exercisable on an
applicable Option Vesting Date (as such date may be accelerated
pursuant to Section 6(f) below) provided : the
Grantee is an employee of the Company in good standing on the
applicable Vesting Date.
(b)
The Restrictions on Restricted Shares shall lapse on the Restricted
Shares Vesting Date provided, however, except as provided in
Section 6(f) in no event shall the Restrictions on
Restricted Shares lapse prior to three (3) years from the
Grant Date.
(c)
The sale of shares received from the exercise of the Option may at
the Company’s discretion be delayed from the date notice of
exercise and sale is delivered to the Company in order to restrict
sale of the shares received from the exercise of an Option during
any period in which trading in the Company’s securities is
restricted under the Company’s Special Trading Policy and
Procedures or otherwise as required under applicable
securities’ laws.
(d)
The sale of shares received from the exercise of an Option may at
the Company’s discretion be delayed from the date notice of
exercise and sale is delivered to the Company if in the
Company’s judgment trading market conditions would be
adversely impacted by the exercise and sale of such shares.
The Company may also at its discretion place any reasonable
restrictions or conditions on the sale of shares received upon
exercise of the Option as it believes would be in the best
interests of the trading market for the Company’s
securities.
(e)
Notwithstanding anything to the contrary in this Agreement, the
Option shall not be exercisable after the Option Expiration
Date.
(f)
The Option shall become exercisable and fully vested with respect
to all Option Shares granted hereunder and the Restrictions on the
Restricted Shares awarded hereunder shall lapse and the Restricted
Shares shall become fully vested upon the date of a Change in
Control (as defined in the Plan), if the Change in Control occurs
prior to the Grantee’s termination of employment, subject to
and in accordance with Article X of the Plan. Notwithstanding
anything to the contrary herein, the Option shall become
exercisable and fully vested with respect to all Option Shares
granted hereunder that have not theretofore vested upon the Date of
Termination of Grantee’s employment unless Grantee’s
employment with the Company or a Related Company terminates for
Cause, in which case, all Option Shares not vested as of such Date
of Termination for Cause shall be forfeited and
cancelled.
The provisions of this
Section 6 are subject to the specific terms of the
Grantee’s employment agreement, if any, with the Company that
provides for the acceleration of Options or Restricted Shares upon
the occurrence of specified events. In the event the
conditions under an employment agreement between the Grantee and
the Company occur for the acceleration of Options or Restricted
Shares, then notwithstanding anything to the contrary in this
Agreement, the vesting of Options or Restricted Shares granted
under this Agreement shall be accelerated to the earlier of the
date specified in this Agreement or the date specified under the
employment agreement, but, except as provided in
Section 6(f) in no event shall acceleration of any
Restricted Shares
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result in the lapse of the
Restrictions prior to three (3) years from the Grant Date
except as provided under Section 8.1(d) of the
Plan.
Section 7.
Restrictions on Transfer .
(a)
The Option may not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, alienated or encumbered
(collectively, a “Transfer”) in any way by Grantee,
either voluntarily or involuntarily, and may be exercised during
the lifetime of Grantee only by Grantee, or in the event of
Grantee’s legal incapacity, by Grantee’s guardian or
legal representative acting in a fiduciary capacity on behalf of
Grantee under state law. If Grantee dies, the Option shall
thereafter be exercisable as provided above and in the Plan.
The Option shall not be subject to execution, attachment or similar
process other than pursuant to a QDRO.
(b)
Prior to the time that the Restrictions have lapsed with respect to
Restricted Shares, neither the Restricted Shares, nor any interest
therein, or amount payable in respect thereof may be Transferred in
any way, either voluntarily or involuntarily. The Transfer
restrictions in the preceding sentence shall not apply to:
(i) transfers to the Company; (ii) transfers by will or
the laws of descent and distribution; or (iii) transfers
pursuant to a QDRO. Upon and after the time any Restrictions
shall have lapsed, Grantee shall be permitted to transfer the
shares as to which the Restrictions have lapsed subject to
applicable securities law requirements, the Company’s Special
Trading Policy and Procedures, and any other applicable laws or
regulations.
(c)
Holdback Shares, nor any interest therein, or amount payable in
respect thereof may not be Transferred in any way, either voluntary
or involuntary, before the earlier of (i) nine (9) months
from the date of exercise of the Option for which such shares were
issued, or (ii) the Grantee’s termination of employment
as an officer appointed by the Board of Directors or as a member of
the Board of Directors of the Company (whichever shall occur later)
for any reason including death, Disability, illness, resignation,
Retirement, or other reason (“Holdback Period”).
Grantee shall be entitled to dividends and any voting rights with
respect to Holdback Shares even though the Holdback Period has not
lapsed.
(d)
If the Board of Directors makes any adjustment pursuant to
Section 7.2(c) of the Plan and the Holdback Period has
not lapsed as to the Holdback Shares prior to such adjustment, the
remaining time period of Holdback Period shall be applicable to any
additional shares resulting from such adjustment.
(e)
Any attempted Transfer of the Option or Restricted Shares or
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