Form SC 13D/A CHEESECAKE FACTORY INC Filed by: RC Cake Holdings LLC

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934  

(Amendment No.  1)*

 

The Cheesecake Factory Incorporated

(Name of Issuer)

Common Stock, $0.01 par value

(Title of Class of Securities)

163072101

(CUSIP Number)

Paul D. Ginsberg 1180 Peachtree Street NE, Suite 2500 Atlanta, Georgia 30309

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

June 8, 2021

(Date of Event which Requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. ☐

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

 

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

CUSIP No. 163072101

SCHEDULE 13D

Page 2 of 6

 

 

1	NAME OF REPORTING PERSON   RC Cake Holdings LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a)  ☐ (b)  ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS   OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION   Delaware

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER   0
	8	SHARED VOTING POWER   2,400,864
	9	SOLE DISPOSITIVE POWER   0
	10	SHARED DISPOSITIVE POWER   2,400,864

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   2,400,864
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   4.61%
14	TYPE OF REPORTING PERSON   OO

 

 

CUSIP No. 163072101

SCHEDULE 13D

Page 3 of 6

 

 

1	NAME OF REPORTING PERSON   Neal K. Aronson*
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a)  ☐ (b)  ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS   OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION   United States

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER   0
	8	SHARED VOTING POWER   2,400,864
	9	SOLE DISPOSITIVE POWER   0
	10	SHARED DISPOSITIVE POWER   2,400,864

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   2,400,864
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   4.61%
14	TYPE OF REPORTING PERSON   IN

 

*

RC Cake Holdings LLC, a Delaware limited liability company, directly owns the Common Stock (as defined below). RC Cake Holdings LLC is controlled by each of (i) RC Cake 1 LLC, a Delaware limited liability company, which is in turn controlled by Roark Capital Partners V (T) LP, a Cayman Islands exempted limited partnership, (ii) RC Cake 2 LLC, a Delaware limited liability company, which is in turn controlled by Roark Capital Partners V (TE) LP, a Cayman Islands exempted limited partnership, and (iii) RC Cake 3 LLC, a Delaware limited liability company, which is in turn controlled by Roark Capital Partners V (OS) LP, a Cayman Islands exempted limited partnership. Each of Roark Capital Partners V (T) LP, Roark Capital Partners V (TE) LP and Roark Capital Partners V (OS) LP is controlled by its general partner, Roark Capital GenPar V LP, a Cayman Islands exempted limited partnership, which is in turn controlled by Roark Capital GenPar V LLC, a Cayman Islands exempted limited liability company, which is in turn controlled by its managing member, Neal K. Aronson. Each of RC Cake 1 LLC, RC Cake 2 LLC, RC Cake 3 LLC, Roark Capital Partners V (T) LP, Roark Capital Partners V (TE) LP, Roark Capital Partners V (OS) LP, Roark Capital GenPar V LP, Roark Capital GenPar V LLC and Mr. Aronson may be deemed to have voting and dispositive power with respect to the Common Stock directly owned by RC Cake Holdings LLC and therefore be deemed to be the beneficial owner of the Common Stock held by RC Cake Holdings LLC, but each disclaims beneficial ownership of such Common Stock.

 

 

CUSIP No. 163072101

SCHEDULE 13D

Page 4 of 6

 

The following constitutes Amendment No. 1 (“Amendment No. 1”) to the Schedule 13D, dated as of April 27, 2020 (the “Schedule 13D”), filed by the undersigned. This Amendment No. 1 amends the Schedule 13D as specifically set forth herein.

 

Item 4. Purpose of Transaction.

 

Item 4 is hereby amended and supplemented with the following:

 

Distribution of the Convertible Preferred Stock

On June 8, 2021, RC Cake Holdings LLC (“RC Cake Holdings”) distributed an aggregate of 150,000 shares (the “Repurchased Shares”) of the Series A Convertible Preferred Stock, par value $0.01 per share (“Convertible Preferred Stock”), of The Cheesecake Factory Incorporated (the “Issuer”), to RC Cake 1 LLC (“RC Cake 1”), RC Cake 2 LLC (“RC Cake 2”) and RC Cake 3 LLC (“RC Cake 3”), members of RC Cake Holdings.

Repurchase Agreement

On June 10, 2021, the Issuer entered into a Repurchase Agreement (the “Repurchase Agreement”) with each of RC Cake 1, RC Cake 2 and RC Cake 3. Pursuant to the Repurchase Agreement, the Issuer agreed to repurchase from RC Cake 1, RC Cake 2 and RC Cake 3 the Repurchased Shares for an aggregate purchase price of approximately $446.9 million. The Repurchase Agreement contains customary representations, warranties, and conditions to closing. The transactions contemplated by the Repurchase Agreement are expected to close on or about June 15, 2021.

Conversion Agreement

On June 10, 2021, the Issuer entered into a Conversion Agreement (the “Conversion Agreement”) with RC Cake Holdings. Pursuant to the Conversion Agreement, RC Cake Holdings agreed to convert the remaining 50,000 shares of Convertible Preferred Stock owned by the Reporting Persons into 2,448,381 shares (the “Conversion Shares”) of Common Stock, par value $0.01 per share (the “Common Stock”), of the Issuer, pursuant to the terms of the Certificate of Designations of the Convertible Preferred Stock. In addition, RC Cake Holdings agreed to surrender 47,517 of the Conversion Shares to the Issuer. RC Cake Holdings will receive approximately $10.4 million in cash in connection with the conversion. The Conversion Agreement contains customary representations, warranties, and conditions to closing. The transactions contemplated by the Conversion Agreement are expected to close on or about June 15, 2021.

Lock-Up Agreements

In connection with the concurrent public offerings (the “Concurrent Offerings”) of 3,125,000 shares of Common Stock and $300,000,000 aggregate principal amount of 0.375% convertible senior notes due 2026 by the Issuer, on June 10, 2021, each of RC Cake Holdings and Mr. Paul D. Ginsberg entered into a lock-up agreement with the underwriter in the Concurrent Offerings.  The lock-up agreements contain customary terms and restrict RC Cake Holdings and Mr. Ginsberg from selling their shares for a 60-day period following the pricing of the Concurrent Offerings.

 

CUSIP No. 163072101

SCHEDULE 13D

Page 5 of 6

 

 

Item 5. Interest in Securities of the Issuer. 

 

Item 5 is hereby amended and restated as follows:

 

The aggregate percentage of shares of Common Stock reported owned by the Reporting Persons is based upon a denominator of (i) 46,559,860 shares of Common Stock outstanding, as of June 8, 2021, as reported on the Issuer’s prospectus supplement filed with the Securities and Exchange Commission on June 14, 2021 (and adding thereto the 2,400,864 Conversion Shares of RC Cake Holdings and the 3,125,000 shares of Common Stock issued in the Concurrent Offerings) and (ii) 2,400,864 Conversion Shares issued upon conversion of the 50,000 shares of Convertible Preferred Stock and not surrendered pursuant to the Conversion Agreement.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

 

Item 6 is hereby amended to incorporate by reference the information set forth in Item 4 into this Item 6.

 

Item 7. Material to Be Filed as Exhibits.

  

Exhibit		Description
Exhibit 1		Joint Filing Agreement
Exhibit 2		Repurchase Agreement, dated June 10, 2021, by and among The Cheesecake Factory Incorporated, RC Cake 1 LLC, RC Cake 2 LLC and RC Cake 3 LLC.
Exhibit 3		Conversion Agreement, dated June 10, 2021, by and between The Cheesecake Factory Incorporated and RC Cake Holdings LLC.

 

 

 

CUSIP No. 163072101

SCHEDULE 13D

Page 6 of 6

 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Dated:June 14, 2021

 

	RC CAKE HOLDINGS LLC
	By:	/s/ Paul D. Ginsberg
		Name:	Paul D. Ginsberg
		Title:	President

 

	NEAL K. ARONSON
	By:	/s/ Neal K. Aronson
		Name:	Neal K. Aronson

 

 

 

 

 

EXHIBIT 1

 

JOINT FILING AGREEMENT

 

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, each of the persons named below agrees to the joint filing of a Statement on Schedule 13D (including amendments thereto) with respect to the common stock, par value $0.01 per share, of The Cheesecake Factory Incorporated, a Delaware corporation, and further agrees that this joint filing agreement be included as an exhibit to such filings provided that, as contemplated by Section 13d-1(k)(1)(ii), no person shall be responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate.

 

Dated: June 14, 2021

 

	RC Cake Holdings LLC
	By:	/s/ Paul D. Ginsberg
		Name:	Paul D. Ginsberg
		Title:	President

 

	Neal K. Aronson
	By:	/s/ Neal K. Aronson
		Name:	Neal K. Aronson

 

 

EXHIBIT 2

 

Repurchase Agreement

June 10, 2021

 

The Cheesecake Factory Incorporated

26901 Malibu Hills Road

Calabasas Hills, California

 

Ladies and Gentlemen:

1.                  Agreement to Repurchase. Subject to the terms of this Repurchase Agreement, each undersigned investor (each, an “Investor” and, collectively, the “Investors”) agrees to sell to The Cheesecake Factory Incorporated, a Delaware corporation (the “Company”), and the Company agrees to purchase from the Investors, an aggregate of 150,000 shares (the “Repurchased Preferred Stock”) of the Company’s Series A Convertible Preferred Stock (the “Preferred Stock”) that it beneficially owns for cash (the “Repurchase Consideration”) in an aggregate amount equal to the product of (x) the sum of (i) $2,958.34, plus (ii) the total accrued Regular Dividends (as defined in the Certificate of Designations) per share of Repurchased Preferred Stock from, and including, the immediately preceding Regular Dividend Payment Date to, but excluding, the Closing Date that have not been paid in cash, and (y) 150,000 (such sale and purchase, the “Repurchase”). The shares of Repurchased Preferred Stock are allocated among the Investors as set forth next to each Investor’s name in the Schedule of Investors attached hereto as Schedule B (the “Investor Schedule”). The parties acknowledge and agree that, upon consummation of the Repurchase, the Investors shall hold no further shares of Preferred Stock and no shares of Common Stock.

Subject to the terms and conditions of this Repurchase Agreement, at the Closing, the Company shall pay the Investors an aggregate cash payment equal to the Repurchase Consideration, which Repurchase Consideration shall be allocated among the Investors in accordance with the Investor Schedule. No cash or other consideration in excess of the Repurchase Consideration will be paid or given to the Investors in respect of any accumulated and unpaid dividends on the shares of Preferred Stock to be repurchased in the Repurchase. The Repurchase Consideration will be deemed to satisfy in full all accumulated and unpaid dividends on such shares of Repurchased Preferred Stock.

The Repurchase will occur in accordance with the procedures set forth in Section 3 hereof.

2.                  The Closing. The closing of the Repurchase (the “Closing”) will take place electronically, at 10:00 a.m., New York City time, on the later of (A) such date as the conditions to Closing set forth in Section 6 are satisfied or waived; and (B) such other time and place as the Company and the Investors may agree (such later date, the “Closing Date”).

3.                  Repurchase. Subject to the terms and conditions of this Repurchase Agreement, the Investors hereby sell, assign and transfer to, or upon the order of, the Company all right, title and interest in the Repurchased Preferred Stock, waive any and all other rights with respect to such Repurchased Preferred Stock, and the related rights appurtenant thereto pursuant to the Certificate of Designations governing the Preferred Stock (the “Certificate of Designations”), and release

and discharge the Company from any and all claims the Investors may now have, or may have in the future, arising out of, or related to, such Repurchased Preferred Stock, including, without limitation, any claims that any Investor is entitled to receive additional dividends with respect to the Repurchased Preferred Stock. Additionally, subject to the terms and conditions of this Repurchase Agreement, on the Closing Date, the Company agrees to pay the Repurchase Consideration to the Investors in accordance with the Investor Schedule, by wire transfers to the accounts in the United States set forth on Schedule A attached to this Repurchase Agreement.

At or prior to 9:30 a.m., New York City time, on the Closing Date, each Investor agrees to deliver the Repurchased Preferred Stock held by such Investor to the Company.

If the Closing of the Repurchase does not occur, any Repurchased Preferred Stock surrendered to the Company will be returned to the applicable Investor.

All authority herein conferred or agreed to be conferred in this Repurchase Agreement will survive the dissolution of any Investor or the Company, as applicable, and any representation, warranty, undertaking and obligation of any Investor or the Company, as applicable, hereunder will be binding upon the trustees in bankruptcy, legal representatives, successors and assigns of the Investors and the Company, as applicable.

4.                  Representations and Warranties of the Company. The Company represents and warrants to the Investors and covenants that:

(a)               The Company is duly formed, validly existing and in good standing under the laws of the State of Delaware, with full power and authority to conduct its business as it is currently being conducted and to own its assets. The Company has full power and authority to consummate the Repurchase and to enter into this Repurchase Agreement and perform all of its obligations hereunder.

(b)               The Repurchase and the other transactions contemplated thereby will not (A) contravene any law, rule or regulation binding on the Company or any subsidiary thereof or any judgment or order of any court or arbitrator or governmental or regulatory authority applicable to the Company or any such subsidiary, (B) constitute a breach or violation or result in a default under any loan agreement, mortgage, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it is bound or (C) constitute a breach or violation or result in a default under the organizational documents of the Company or any subsidiary thereof, except, in the case of clauses (A) and (B) above, for such contraventions, conflicts, violations or defaults that would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on the business, properties, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole or on the performance by the Company of its obligations under this Repurchase Agreement.

(c)               No consent, approval, authorization, order, license, registration or qualification of or with any court or governmental or regulatory authority is required for the execution, delivery and performance by the Company of its obligations under this Repurchase Agreement and the

consummation of the transactions contemplated by this Repurchase Agreement, except such as have been obtained or made (or will, at the Closing, have been obtained or made) by the Company.

(d)               This Repurchase Agreement has been duly authorized, executed and delivered by the Company, and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally and general principles of equity.

(e)               Subject to the completion of the Concurrent Offerings (as defined below), the Company will have as of the Closing access to funds sufficient to consummate the transactions contemplated by this Repurchase Agreement.

(f)                The terms of the transactions contemplated by this Repurchase Agreement were approved prior to the execution and delivery hereof by the adoption of resolutions of the Committee of Independent Directors of the Board of Directors of the Company in accordance with Rule 16b-3 under the Exchange Act for the purpose of exempting such persons and entities who may be deemed to have a pecuniary interest in the securities held by the Investor, from the liability provisions of Section 16(b) of the Exchange Act. For purposes of this Subsection 5(f), Committee of Independent Directors shall mean a committee of the board of directors composed solely of “Non-Employee Directors” (as such term is defined in Exchange Act).

(g)               The Company acknowledges that no person has been authorized to give any information or to make any representation concerning the Investors or the transactions contemplated hereby other than as contained in this Repurchase Agreement. The Investors take no responsibility for, and provide no assurance as to the reliability of, any other information that others may provide to the Company.

(h)               The Company will, upon request, execute and deliver any additional documents that any Investor may reasonably request to complete the transactions contemplated hereby.

(i)                 The Company understands that, unless the Investors notify the Company in writing to the contrary at or before the Closing, each of the Company’s representations and warranties contained in this Repurchase Agreement will be deemed to have been reaffirmed and confirmed as of the Closing.

5.                  Representations and Warranties of the Investors. Each Investor hereby represents and warrants to and covenants with the Company that:

(a)               The Investor has full power and authority to exchange, sell, assign and transfer the applicable Repurchased Preferred Stock to be repurchased hereby and to enter into this Repurchase Agreement and perform all obligations required to be performed by the Investor hereunder.

(b)               The Investor is and, immediately before the Closing, will be the beneficial owner of the Repurchased Preferred Stock set forth next to its name on the Investor Schedule.

(c)               When the Repurchased Preferred Stock is repurchased pursuant to this Repurchase Agreement, the Company will acquire good, marketable and unencumbered title to the

Repurchased Preferred Stock, free and clear of all liens (other than any liens arising under applicable laws).

(d)               The transactions contemplated hereby will not (A) contravene any law, rule or regulation binding on the Investor or any investment guideline or restriction applicable to the Investor, or (B) constitute a breach or violation or result in a default under the organizational documents of the Investor or any material loan agreement, mortgage, lease or other agreement or instrument to which the Investor is a party or by which it is bound, except for such contraventions, conflicts, violations or defaults that would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on the performance by the Investor of its obligations under this Repurchase Agreement.

(e)               The Investor is a resident of the jurisdiction set forth on Schedule A attached to this Repurchase Agreement.

(f)                The Investor acknowledges that no person has been authorized to give any information or to make any representation concerning the Company or the transactions contemplated hereby other than as contained in this Repurchase Agreement. The Company takes no responsibility for, and provides no assurance as to the reliability of, any other information that others may provide to the Investor.

(g)               The Investor understands and accepts that the transactions contemplated hereby involve risks. The Investor has such knowledge, skill and experience in business, financial and investment matters that such person is capable of evaluating the merits and risks of the transactions contemplated hereby. With the assistance of the Investor’s own professional advisors, to the extent that the Investor has deemed appropriate, the Investor has made its own legal, tax, accounting and financial evaluation of the merits and risks of the transactions contemplated hereby and the consequences of this Repurchase Agreement. The Investor has considered the suitability of the transactions contemplated hereby as an investment in light of its own circumstances and financial condition, and the Investor is able to bear the risks associated with the transactions contemplated hereby.

(h)               The Investor confirms that it is not relying on any statement (written or oral), representation or warranty made by, or on behalf of, the Company or any of their respective affiliates as investment, tax or other advice or as a recommendation to participate in the transactions contemplated hereby. Neither the Company nor any of its affiliates is acting or has acted as an advisor to the Investor in deciding whether to participate in the transactions contemplated hereby.

(i)                 The Investor confirms that none of the Company or any of its respective affiliates have (A) given any guarantee or representation as to the potential success, return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) of the transactions contemplated hereby; or (B) made any representation to the Investor regarding the legality of the transactions contemplated hereby under applicable investment guidelines, laws or regulations. In deciding to participate in the transactions contemplated hereby, the Investor is not relying on the advice or recommendations of the Company or its respective affiliates, and has made its own independent decision that the terms of the transactions contemplated hereby are suitable and appropriate for it.

(j)                 The Investor is familiar with the business and financial condition and operations of the Company and has had the opportunity to conduct its own investigation of the Company. The Investor has had access to and reviewed applicable information concerning the transactions contemplated hereby it deems necessary to enable it to make an informed investment decision concerning the transactions contemplated hereby. The Investor has been offered the opportunity to ask questions of the Company and received answers thereto, as it deems necessary to enable it to make an informed investment decision concerning the transactions contemplated hereby.

(k)               The Investor understands that no federal or state agency has passed upon the merits or risks of the transactions contemplated hereby or made any recommendation or endorsement, or made any finding or determination concerning the fairness or advisability, of such investment or the consequences of the transactions contemplated hereby and this Repurchase Agreement.

(l)                 The Investor is an “accredited investor” as defined in Rule 501(a) under the Securities Act. The Investor agrees to furnish any additional information requested by the Company or any of its affiliates to assure compliance with applicable U.S. federal and state securities laws in connection with the transactions contemplated hereby.

(m)             The Investor acknowledges that the terms of the transactions contemplated hereby have been mutually negotiated between the Investor and the Company.

(n)               The Investor will, upon request, execute and deliver any additional documents that the Company may reasonably request to complete the transactions contemplated hereby.

(o)               The Investor acknowledges and agrees that it has not transacted, and will not transact, in any securities of the Company, including, but not limited to, any hedging transactions, from the time the Investor was first contacted by the Company with respect to the transactions contemplated by this Repurchase Agreement until after the Release Time (as defined in Section 8 herein).

(p)               The Investor acknowledges that it is prohibited from entering into any Hedging Transaction (as defined in and as provided in Section 4.5 of the Subscription Agreement, dated as of April 20, 2020, by and between the Company and RC Cake Holdings LLC).

(q)               The Investor acknowledges that, concurrently with and as a condition to the transactions contemplated hereby, the Company is conducting a public offering for cash of (i) convertible senior notes and (ii) shares of Company’s common stock (“Common Stock”), $0.01 par value per share (collectively, the “Concurrent Offerings”).

(r)                The Investor understands that, unless the Company notifies the Investor in writing to the contrary at or before the Closing, each of the Investor’s representations and warranties contained in this Repurchase Agreement will be deemed to have been reaffirmed and confirmed as of the Closing.

6.                  Conditions to Obligations of the Investors and the Company.

(a)               The obligation of the Investors to deliver (or cause to be delivered) the applicable Repurchased Preferred Stock is subject to the satisfaction, at or prior to the Closing, of the following conditions precedent:

(i)                 the representations and warranties of the Company contained in Section 4 hereof shall be true and correct as of the Closing in all material respects with the same effect as though such representations and warranties had been made as of the Closing,

(ii)              all covenants of the Company herein to be performed at or before the Closing shall have been performed in all material respects, and

(iii)            no government, court, tribunal, arbitrator, administrative agency, commission or other governmental official, authority or instrumentality shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction, order or other legal restraint (whether temporary, preliminary or permanent) which is in effect and which has the effect of making the Repurchase illegal or otherwise prohibiting or preventing consummation of the Repurchase.

(b)               The obligations of the Company to deliver (or caused to be delivered) the Repurchase Consideration (it being understood, for the avoidance of doubt, that nothing in this Repurchase will affect the Company’s obligations under the Certificate of Designations) are subject to the following conditions precedent:

(i)                 the representations and warranties of the Investors contained in Section 5 hereof shall be true and correct as of the Closing in all material respects with the same effect as though such representations and warranties had been made as of the Closing,

(ii)              all covenants of the Investors therein to be performed at or before the Closing shall have been performed in all material respects,

(iii)            no government, court, tribunal, arbitrator, administrative agency, commission or other governmental official, authority or instrumentality shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction, order or other legal restraint (whether temporary, preliminary or permanent) which is in effect and which has the effect of making the Repurchase illegal or otherwise prohibiting or preventing consummation of the Repurchase,

(iv)             the Company shall have received the Repurchased Preferred Stock conforming to the requirements set forth in this Repurchase Agreement, and

(v)               the Concurrent Offerings shall have closed.

7.                  Termination. In the event that the Closing has not been consummated by 5:30 p.m., New York City time, on June 22, 2021, either party may terminate this Repurchase Agreement so long as such party is not in willful and material breach of this Repurchase Agreement at such time, and if so terminated this Repurchase Agreement shall be of no further force or effect; provided, however, that (a) this Section 7 and Section 10, Section 11 and Sections 13 through 21 shall survive the termination of this Repurchase Agreement and shall remain in full force and effect and (b) the

liability of a party hereto for any willful and material breach of this Repurchase Agreement prior to its termination shall survive termination of this Repurchase Agreement.

8.                  Covenant and Acknowledgment of the Company. The Company hereby agrees to publicly disclose at or before 9:30 a.m., New York City time, on the first business day after the pricing of the Concurrent Offerings (such time and date, the “Release Time”), the repurchase of the Repurchased Preferred Stock contemplated by this Repurchase Agreement in a press release or Current Report on Form 8-K; provided, that to the extent reasonably practicable, the Company shall consult with the Investors, and provide the Investors with a reasonable opportunity to review and comment upon, any such press release, Current Report on Form 8-K and other public disclosure prior to the public disclosure of any of the foregoing.

9.                  Further Instruments and Acts; Efforts to Consummate the Concurrent Offerings. Each of the parties to this Repurchase Agreement agrees to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to more effectively carry out the purposes of this Repurchase Agreement. In addition, unless a Force Majeure Event occurs, the Company shall use its best efforts to consummate the Concurrent Offerings as promptly as practicable.

10.              Waiver, Amendment. Neither this Repurchase Agreement nor any provisions hereof may be modified, changed, discharged or terminated except by an instrument in writing, signed by the party against whom any waiver, change, discharge or termination is sought.

11.              Assignability. Neither this Repurchase Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof will be assignable by either the Company, on the one hand, or any Investor, on the other hand, without the prior written consent of the other parties.

12.              Taxation.

(a)               Each Investor represents that such Investor has provided the Company with either (i) a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 or (ii) a properly completed and executed IRS Form W-8IMY, certifying that it is a “Withholding Foreign Partnership” within the meaning of U.S. Treasury regulations (“Treasury Regulations”) Section 1.1441-5(c)(2), with its WP-EIN supplied, and certifying that it is compliant with the terms of its “withholding agreement” within the meaning of Treasury Regulations Section 1.1441-5(c)(2)(ii) where it has assumed primary withholding responsibility under both chapters 3 and 4 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), with respect to any payments to be received under this Repurchase Agreement. Each Investor further acknowledges that such Investor may be subject to 24% U.S. federal backup withholding on payments or deliveries made to such Investor unless such Investor properly establishes an exemption from backup withholding.

(b)               The parties hereto acknowledge and agree that the transactions contemplated by this Repurchase Agreement are intended to be treated for U.S. federal (and applicable state and local) income tax purposes as a sale or exchange described in Section 1001 of the Code. The parties hereto will, and will cause their subsidiaries and agents to, report consistently with, and take no positions or actions inconsistent with, the foregoing treatment unless otherwise required by a determination within the meaning of Section 1313(a) of the Code.

13.              Waiver of Jury Trial. EACH OF THE COMPANY AND EACH INVESTOR IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF THE TRANSACTIONS CONTEMPLATED BY THIS REPURCHASE AGREEMENT.

14.              Governing Law. This Repurchase Agreement will be governed by and construed in accordance with the laws of the State of New York.

15.              Section and Other Headings; Certain Definitions. The section and other headings contained in this Repurchase Agreement are for reference purposes only and will not affect the meaning or interpretation of this Repurchase Agreement. For purposes of this Repurchase Agreement, a “Force Majeure Event” shall mean with respect to the period from launch of the Concurrent Offerings to pricing of the Concurrent Offerings, the occurrence or existence of (a) any suspension or limitation imposed on trading in the Common Stock on the NASDAQ Stock Market or (b) any geopolitical condition, outbreak of hostilities, acts of war, sabotage, civil unrest, cyberterrorism, terrorism, military actions, earthquakes, volcanic activity, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires, other disasters or natural disasters, weather conditions, epidemics, pandemics (including the COVID-19 pandemic) or other outbreaks of illness or public health events and other force majeure events (including any escalation or general worsening of any of the foregoing) that, in each case of this clause (b), has or would reasonably be expected to have a materially adverse effect on the business, financial condition, assets or results of operations of the Company and its subsidiaries, taken as a whole.

16.              Counterparts. This Repurchase Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed to be an original and all of which together will be deemed to be one and the same agreement. Delivery of an executed signature page to this Repurchase Agreement by facsimile or other electronic transmission (including pdf format) will be effective as delivery of a manually executed counterpart hereof.

17.              Notices. All notices and other communications to the Company provided for herein will be in writing and will be deemed to have been duly given if delivered personally or sent by nationally recognized overnight courier service or by registered or certified mail, return receipt requested, postage prepaid to the following addresses (or such other address as either party may have hereafter specified by notice in writing to the other): (a) if to the Company, The Cheesecake Factory Incorporated, 26901 Malibu Hills Road, Calabasas Hills, California, Attention: General Counsel; and (b) if to the Investors, the address provided on Schedule A below.

18.              Binding Effect. The provisions of this Repurchase Agreement will be binding upon and accrue to the benefit of the parties hereto and their respective heirs, legal representatives, successors and permitted assigns.

19.              Notification of Changes. Each Investor hereby covenants and agrees to notify the Company promptly upon becoming aware of the occurrence of any event prior to the Closing that would cause any representation, warranty, or covenant of such Investor contained in this Repurchase Agreement to be false or incorrect. The Company hereby covenants and agrees to notify the Investors promptly upon becoming aware of the occurrence of any event prior to the Closing that

would cause any representation, warranty, or covenant of the Company contained in this Repurchase Agreement to be false or incorrect.

20.              Severability. If any term or provision of this Repurchase Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Repurchase Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

21.              Remedies. The parties agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Repurchase Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific performance or other injunctive relief in order to enforce, or prevent any violations of, the provisions of this Repurchase Agreement.

22.              Equitable Adjustment. If at any time during the period between the date of this Agreement and the Closing, any change in the outstanding shares of capital stock of the Company shall occur as a result of any reclassification, recapitalization, reorganization, stock split (including a reverse stock split) or combination, exchange or readjustment of shares, or the like, then appropriate equitable adjustments will be made to the dollar and share amounts referenced in this Repurchase Agreement.

 

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

 

In Witness Whereof, the undersigned has executed this Repurchase Agreement as of the date first written above.

	Investors:
	RC CAKE 1 LLC
	By:	/s/ Stephen D. Aronson
		Name:	Stephen D. Aronson
		Title:	Vice President, Secretary and General Counsel
	RC CAKE 2 LLC
	By:	/s/ Stephen D. Aronson
		Name:	Stephen D. Aronson
		Title:	Vice President, Secretary and General Counsel
	RC CAKE 3 LLC
	By:	/s/ Stephen D. Aronson
		Name:	Stephen D. Aronson
		Title:	Vice President, Secretary and General Counsel

 

 

 

[Signature Page to Repurchase Agreement]

 

	The Cheesecake Factory Incorporated
	By:	/s/ Matthew Clark
		Name:	Matthew Clark
		Title:	Executive Vice President, Chief Financial Officer

 

 

[Signature Page to Repurchase Agreement]

 

EXHIBIT 3

 

Conversion Agreement

June 10, 2021

 

The Cheesecake Factory Incorporated

26901 Malibu Hills Road

Calabasas Hills, California

 

Ladies and Gentlemen:

1.                  Agreement to Convert. Subject to the terms of this Conversion Agreement, the undersigned investor (the “Investor”) agrees to convert (the “Conversion”) 50,000 shares (the “Converted Preferred Stock”) of Preferred Stock of The Cheesecake Factory Incorporated, a Delaware corporation (the “Company”) that it beneficially owns into shares (the “Conversion Shares”) of the Company’s common stock, $0.01 par value per share (the “Common Stock”), together, if applicable, with cash in lieu of any fractional share, in accordance with the Section 10(b) of the Certificate of Designations governing the Preferred Stock (the “Certificate of Designations”). The parties acknowledge and agree that, upon consummation of the Conversion, the Investor shall hold no further shares of Preferred Stock and no shares of Common Stock except for those shares of Common Stock that will be received as a result of the Conversion.

Subject to the terms and conditions of this Conversion Agreement, at the Closing, the Company shall pay the Investor an aggregate cash payment equal to the sum of (the “Cash Consideration”) (x) the cash representing the fractional shares referred to in the preceding paragraph plus (y) $208.44 per share of Converted Preferred Stock. No cash or other consideration in excess of the Cash Consideration and the Conversion Shares due, pursuant to the Certificate of Designations, in settlement of the Conversion will be paid or given to the Investor in respect of any accumulated and unpaid dividends on the shares of Converted Preferred Stock. The Cash Consideration and the Conversion Shares due, pursuant to the Certificate of Designations, in settlement of the Conversion will be deemed to satisfy in full all accumulated and unpaid dividends on such shares of Converted Preferred Stock. The Investor shall, immediately upon the payment of the Cash Consideration and delivery of the Conversion Shares, transfer, assign, convey, deliver and surrender to the Company for no additional consideration a number of Conversion Shares (rounded down to the closest whole share) equal to the quotient obtained by dividing (x) an amount equal to accumulated and unpaid Regular Dividends (as defined in the Certificate of Designations) on the Converted Preferred Stock from, and including, the Regular Dividend Payment Date (as defined in the Certificate of Designations) preceding the date of this Conversion Agreement to, but excluding, the Closing Date by (y) the Conversion Price (as defined in the Certificate of Designations) applicable to the Conversion (the “Surrendered Shares”).

The Conversion will occur in accordance with the procedures set forth in Section 3 hereof.

2.                  The Closing. The closing of the Conversion (the “Closing”) will take place electronically, at 10:00 a.m., New York City time, on the later of (A) such date as the conditions to Closing set forth in Section 6 are satisfied or waived; and (B) such other time and place as the Company and the Investor may agree (such later date, the “Closing Date”).

 

3.                  Conversion and Surrender. Subject to the terms and conditions of this Conversion Agreement, on the Closing Date, (i) the Investor agrees to submit an Optional Conversion Notice (attached as Schedule B to this Conversion Agreement) in respect of the Converted Preferred Stock; (ii) the Company agrees to pay the Cash Consideration to the Investor by wire transfer to the account in the United States of the Investor set forth in Schedule A to this Conversion Agreement and deliver the Conversion Shares due upon conversion of the Converted Preferred Stock to the Investor on the Closing Date in accordance with the terms of the Certificate of Designations and this Conversion Agreement; and (iii) immediately following the payment of the Cash Consideration and delivery of the Conversion Shares, the Investor agrees to transfer, assign, convey, deliver and surrender to the Company the Surrendered Shares.

At or prior to 9:30 a.m., New York City time, on the Closing Date, the Investor agrees to submit the Converted Preferred Stock for conversion in accordance with the terms of the Certificate of Designations.

If the Closing of the Conversion does not occur, the Converted Preferred Stock will be returned to the Investor.

All authority herein conferred or agreed to be conferred in this Conversion Agreement will survive the dissolution of the Investor or the Company, as applicable, and any representation, warranty, undertaking and obligation of the Investor or the Company, as applicable, hereunder will be binding upon the trustees in bankruptcy, legal representatives, successors and assigns of the Investor and the Company, as applicable.

4.                  Representations and Warranties of the Company. The Company represents and warrants to the Investor and covenants that:

(a)               The Company is duly formed, validly existing and in good standing under the laws of the State of Delaware, with full power and authority to conduct its business as it is currently being conducted and to own its assets. The Company has full power and authority to consummate the Conversion and to enter into this Conversion Agreement and perform all of its obligations hereunder.

(b)               The Conversion and the other transactions contemplated thereby will not (A) contravene any law, rule or regulation binding on the Company or any subsidiary thereof or any judgment or order of any court or arbitrator or governmental or regulatory authority applicable to the Company or any such subsidiary, (B) constitute a breach or violation or result in a default under any loan agreement, mortgage, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it is bound or (C) constitute a breach or violation or result in a default under the organizational documents of the Company or any subsidiary thereof, except, in the case of clauses (A) and (B) above, for such contraventions, conflicts, violations or defaults that would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on the business, properties, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole or on the performance by the Company of its obligations under this Conversion Agreement.

 

(c)               No consent, approval, authorization, order, license, registration or qualification of or with any court or governmental or regulatory authority is required for the execution, delivery and performance by the Company of its obligations under this Conversion Agreement and the consummation of the transactions contemplated by this Conversion Agreement, except such as have been obtained or made (or will, at the Closing, have been obtained or made) by the Company.

(d)               This Conversion Agreement has been duly authorized, executed and delivered by the Company, and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally and general principles of equity.

(e)               When the Conversion Shares are delivered to the Investor pursuant to this Conversion Agreement, the Investor will acquire good, marketable and unencumbered title to the Conversion Shares, free and clear of all liens (other than any liens arising under applicable laws).

(f)                As of June 8, 2021, 46,559,860 shares of Common Stock were issued and outstanding.

(g)               Subject to the completion of the Concurrent Offerings (as defined below), the Company will have as of the Closing access to funds sufficient to consummate the transactions contemplated by this Conversion Agreement.

(h)               The terms of the transactions contemplated by this Conversion Agreement were approved prior to the execution and delivery hereof by the adoption of resolutions of the Committee of Independent Directors of the Board of Directors of the Company in accordance with Rule 16b-3 under the Exchange Act for the purpose of exempting such persons and entities who may be deemed to have a pecuniary interest in the securities held by the Investor, from the liability provisions of Section 16(b) of the Exchange Act. For purposes of this Subsection 5(h), Committee of Independent Directors shall mean a committee of the board of directors composed solely of “Non-Employee Directors” (as such term is defined in Exchange Act).

(i)                 The Company acknowledges that no person has been authorized to give any information or to make any representation concerning the Investor or the transactions contemplated hereby other than as contained in this Conversion Agreement. The Investor takes no responsibility for, and provides no assurance as to the reliability of, any other information that others may provide to the Company.

(j)                 The Company will, upon request, execute and deliver any additional documents that the Investor may reasonably request to complete the transactions contemplated hereby.

(k)               The Company understands that, unless the Investor notifies the Company in writing to the contrary at or before the Closing, each of the Company’s representations and warranties contained in this Conversion Agreement will be deemed to have been reaffirmed and confirmed as of the Closing.

5.                  Representations and Warranties of the Investor. The Investor hereby represents and warrants to and covenants with the Company that:

 

(a)               The Investor has full power and authority to enter into this Conversion Agreement and perform all obligations required to be performed by the Investor hereunder.

(b)               The Investor is and, immediately before the Closing, will be the beneficial owner of the Converted Preferred Stock.

(c)               The transactions contemplated hereby will not (A) contravene any law, rule or regulation binding on the Investor or any investment guideline or restriction applicable to the Investor, or (B) constitute a breach or violation or result in a default under the organizational documents of the Investor or any material loan agreement, mortgage, lease or other agreement or instrument to which the Investor is a party or by which it is bound, except for such contraventions, conflicts, violations or defaults that would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on the performance by the Investor of its obligations under this Conversion Agreement.

(d)               The Investor is a resident of the jurisdiction set forth on Schedule A attached to this Conversion Agreement.

(e)               The Investor acknowledges that no person has been authorized to give any information or to make any representation concerning the Company or the transactions contemplated hereby other than as contained in this Conversion Agreement. The Company takes no responsibility for, and provides no assurance as to the reliability of, any other information that others may provide to the Investor.

(f)                The Investor understands and accepts that the transactions contemplated hereby involve risks. The Investor has such knowledge, skill and experience in business, financial and investment matters that such person is capable of evaluating the merits and risks of the transactions contemplated hereby. With the assistance of the Investor’s own professional advisors, to the extent that the Investor has deemed appropriate, the Investor has made its own legal, tax, accounting and financial evaluation of the merits and risks of the transactions contemplated hereby and the consequences of this Conversion Agreement. The Investor has considered the suitability of the transactions contemplated hereby as an investment in light of its own circumstances and financial condition, and the Investor is able to bear the risks associated with the transactions contemplated hereby.

(g)               The Investor confirms that it is not relying on any statement (written or oral), representation or warranty made by, or on behalf of, the Company or any of their respective affiliates as investment, tax or other advice or as a recommendation to participate in the transactions contemplated hereby. Neither the Company nor any of its affiliates is acting or has acted as an advisor to the Investor in deciding whether to participate in the transactions contemplated hereby.

(h)               The Investor confirms that none of the Company or any of its respective affiliates have (A) given any guarantee or representation as to the potential success, return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) of the transactions contemplated hereby; or (B) made any representation to the Investor regarding the legality of the transactions contemplated hereby under applicable investment guidelines, laws or regulations. In deciding to

 

participate in the transactions contemplated hereby, the Investor is not relying on the advice or recommendations of the Company or its respective affiliates, and has made its own independent decision that the terms of the transactions contemplated hereby are suitable and appropriate for it.

(i)                 The Investor is familiar with the business and financial condition and operations of the Company and has had the opportunity to conduct its own investigation of the Company and the Common Stock. The Investor has had access to and reviewed applicable information concerning the transactions contemplated hereby it deems necessary to enable it to make an informed investment decision concerning the transactions contemplated hereby. The Investor has been offered the opportunity to ask questions of the Company and received answers thereto, as it deems necessary to enable it to make an informed investment decision concerning the transactions contemplated hereby.

(j)                 The Investor understands that no federal or state agency has passed upon the merits or risks of the transactions contemplated hereby or made any recommendation or endorsement, or made any finding or determination concerning the fairness or advisability, of such investment or the consequences of the transactions contemplated hereby and this Conversion Agreement.

(k)               The Investor is an “accredited investor” as defined in Rule 501(a) under the Securities Act. The Investor agrees to furnish any additional information requested by the Company or any of its affiliates to assure compliance with applicable U.S. federal and state securities laws in connection with the transactions contemplated hereby.

(l)                 The Investor is acquiring the Common Stock solely for the Investor’s own beneficial account, for investment purposes, and not with a view to, or for resale in connection with, any distribution of the Common Stock in violation of the Securities Act.

(m)             The Investor acknowledges that the terms of the transactions contemplated hereby have been mutually negotiated between the Investor and the Company.

(n)               The Investor will, upon request, execute and deliver any additional documents that the Company may reasonably request to complete the transactions contemplated hereby.

(o)               The Investor acknowledges and agrees that it has not transacted, and will not transact, in any securities of the Company, including, but not limited to, any hedging transactions, from the time the Investor was first contacted by the Company with respect to the transactions contemplated by this Conversion Agreement until after the Release Time (as defined in Section 8 herein).

(p)               The Investor acknowledges that it is prohibited from entering into any Hedging Transaction (as defined in and as provided in Section 4.5 of the Subscription Agreement, dated as of April 20, 2020, by and between the Company and the Investor).

(q)               The Investor acknowledges that, concurrently with and as a condition to the transactions contemplated hereby, the Company is conducting a public offering for cash of (i) convertible senior notes and (ii) shares of Common Stock (collectively, the “Concurrent Offerings”).

 

(r)                The Investor understands that, unless the Company notifies the Investor in writing to the contrary at or before the Closing, each of the Investor’s representations and warranties contained in this Conversion Agreement will be deemed to have been reaffirmed and confirmed as of the Closing.

(s)                Assuming the accuracy of the representations and warranties of the Company set forth herein, when the Surrendered Shares are transferred pursuant to this Conversion Agreement to the Company, the Company will acquire, good, marketable and unencumbered title to the Surrendered Shares, free and clear of all liens (other than any liens arising under applicable laws).

6.                  Conditions to Obligations of the Investor and the Company.

(a)               The obligations of the Investor to deliver (or cause to be delivered) the Optional Conversion Notice with respect to the Converted Preferred Stock are subject to the satisfaction, at or prior to the Closing, of the following conditions precedent:

(i)                 the representations and warranties of the Company contained in Section 4 hereof shall be true and correct as of the Closing in all material respects with the same effect as though such representations and warranties had been made as of the Closing,

(ii)              all covenants of the Company herein to be performed at or before the Closing shall have been performed in all material respects, and

(iii)            no government, court, tribunal, arbitrator, administrative agency, commission or other governmental official, authority or instrumentality shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction, order or other legal restraint (whether temporary, preliminary or permanent) which is in effect and which has the effect of making the Conversion illegal or otherwise prohibiting or preventing consummation of the Conversion.

(b)               The obligations of the Company to deliver (or caused to be delivered) the Cash Consideration and to deliver the Conversion Shares (it being understood, for the avoidance of doubt, that nothing in this Conversion Agreement will affect the Company’s obligations under the Certificate of Designations) are subject to the following conditions precedent:

(i)                 the representations and warranties of the Investor contained in Section 5 hereof shall be true and correct as of the Closing in all material respects with the same effect as though such representations and warranties had been made as of the Closing,

(ii)              all covenants of the Investor therein to be performed at or before the Closing shall have been performed in all material respects,

(iii)            no government, court, tribunal, arbitrator, administrative agency, commission or other governmental official, authority or instrumentality shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction, order or other legal restraint (whether temporary, preliminary or permanent) which is in effect and which has the effect of making the Conversion illegal or otherwise prohibiting or preventing consummation of the Conversion,

 

(iv)             the Investor shall have duly executed and delivered to the Company the Optional Conversion Notice in order to effect the Conversion, and

(v)               the Concurrent Offerings shall have closed.

7.                  Termination. In the event that the Closing has not been consummated by 5:30 p.m., New York City time, on June 22, 2021, either party may terminate this Conversion Agreement so long as such party is not in willful and material breach of this Conversion Agreement at such time, and if so terminated this Conversion Agreement shall be of no further force or effect; provided, however, that (a) this Section 7 and Section 10, Section 11 and Sections 13 through 21 shall survive the termination of this Conversion Agreement and shall remain in full force and effect and (b) the liability of a party hereto for any willful and material breach of this Conversion Agreement prior to its termination shall survive termination of this Conversion Agreement.

8.                  Covenant and Acknowledgment of the Company. The Company hereby agrees to publicly disclose at or before 9:30 a.m., New York City time, on the first business day after the pricing of the Concurrent Offerings (such time and date, the “Release Time”), the conversion of the Converted Preferred Stock contemplated by this Conversion Agreement in a press release or Current Report on Form 8-K; provided, that to the extent reasonably practicable, the Company shall consult with the Investor, and provide the Investor with a reasonable opportunity to review and comment upon, any such press release, Current Report on Form 8-K and other public disclosure prior to the public disclosure of any of the foregoing.

9.                  Further Instruments and Acts; Efforts to Consummate the Concurrent Offerings. Each of the parties to this Conversion Agreement agrees to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to more effectively carry out the purposes of this Conversion Agreement. In addition, unless a Force Majeure Event occurs, the Company shall use its best efforts to consummate the Concurrent Offerings as promptly as practicable.

10.              Waiver, Amendment. Neither this Conversion Agreement nor any provisions hereof may be modified, changed, discharged or terminated except by an instrument in writing, signed by the party against whom any waiver, change, discharge or termination is sought.

11.              Assignability. Neither this Conversion Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof will be assignable by either the Company, on the one hand, or the Investor, on the other hand, without the prior written consent of the other party.

12.              Taxation.

(a)               The Investor represents that the Investor is a United States person for U.S. federal income tax purposes, and that the Investor has provided the Company with a properly completed and executed Internal Revenue Service (“IRS”) Form W-9. The Investor further acknowledges that the Investor may be subject to 24% U.S. federal backup withholding on payments or deliveries made to the Investor unless the Investor properly establishes an exemption from backup withholding.

 

(b)               The parties hereto acknowledge and agree that the transactions contemplated by this Conversion Agreement are intended to be treated for U.S. federal (and applicable state and local) income tax purposes as a “reorganization” described in Section 368(a)(1)(E) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), with the Cash Consideration being “boot” in such reorganization. The parties hereto will, and will cause their subsidiaries and agents to, report consistently with, and take no positions or actions inconsistent with, the foregoing treatment unless otherwise required by a determination within the meaning of Section 1313(a) of the Code.

13.              Waiver of Jury Trial. EACH OF THE COMPANY AND THE INVESTOR IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF THE TRANSACTIONS CONTEMPLATED BY THIS CONVERSION AGREEMENT.

14.              Governing Law. This Conversion Agreement will be governed by and construed in accordance with the laws of the State of New York.

15.              Section and Other Headings; Certain Definitions. The section and other headings contained in this Conversion Agreement are for reference purposes only and will not affect the meaning or interpretation of this Conversion Agreement. For purposes of this Conversion Agreement, a “Force Majeure Event” shall mean with respect to the period from launch of the Concurrent Offerings to pricing of the Concurrent Offerings, the occurrence or existence of (a) any suspension or limitation imposed on trading in the Common Stock on the NASDAQ Stock Market or (b) any geopolitical condition, outbreak of hostilities, acts of war, sabotage, civil unrest, cyberterrorism, terrorism, military actions, earthquakes, volcanic activity, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires, other disasters or natural disasters, weather conditions, epidemics, pandemics (including the COVID-19 pandemic) or other outbreaks of illness or public health events and other force majeure events (including any escalation or general worsening of any of the foregoing) that, in each case of this clause (b), has or would reasonably be expected to have a materially adverse effect on the business, financial condition, assets or results of operations of the Company and its subsidiaries, taken as a whole.

16.              Counterparts. This Conversion Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed to be an original and all of which together will be deemed to be one and the same agreement. Delivery of an executed signature page to this Conversion Agreement by facsimile or other electronic transmission (including pdf format) will be effective as delivery of a manually executed counterpart hereof.

17.              Notices. All notices and other communications to the Company provided for herein will be in writing and will be deemed to have been duly given if delivered personally or sent by nationally recognized overnight courier service or by registered or certified mail, return receipt requested, postage prepaid to the following addresses (or such other address as either party may have hereafter specified by notice in writing to the other): (a) if to the Company, The Cheesecake Factory Incorporated, 26901 Malibu Hills Road, Calabasas Hills, California, Attention: General Counsel; and (b) if to the Investor, the address provided on the signature page below.

 

18.              Binding Effect. The provisions of this Conversion Agreement will be binding upon and accrue to the benefit of the parties hereto and their respective heirs, legal representatives, successors and permitted assigns.

19.              Notification of Changes. The Investor hereby covenants and agrees to notify the Company promptly upon becoming aware of the occurrence of any event prior to the Closing that would cause any representation, warranty, or covenant of the Investor contained in this Conversion Agreement to be false or incorrect. The Company hereby covenants and agrees to notify the Investor promptly upon becoming aware of the occurrence of any event prior to the Closing that would cause any representation, warranty, or covenant of the Company contained in this Conversion Agreement to be false or incorrect.

20.              Severability. If any term or provision of this Conversion Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Conversion Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

21.              Remedies. The parties agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Conversion Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific performance or other injunctive relief in order to enforce, or prevent any violations of, the provisions of this Conversion Agreement.

22.              Equitable Adjustment. If at any time during the period between the date of this Agreement and the Closing, any change in the outstanding shares of capital stock of the Company shall occur as a result of any reclassification, recapitalization, reorganization, stock split (including a reverse stock split) or combination, exchange or readjustment of shares, or the like, then appropriate equitable adjustments will be made to the dollar and share amounts referenced in this Conversion Agreement.

 

 

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

 

In Witness Whereof, the undersigned has executed this Conversion Agreement as of the date first written above.

	Investor:
	RC CAKE HOLDINGS LLC
	By:	/s/ Stephen D. Aronson
		Name:	Stephen D. Aronson
		Title:	Vice President, Secretary and General Counsel

 

[Signature Page to Conversion Agreement]

 

	The Cheesecake Factory Incorporated
	By:	/s/ Matthew Clark
		Name:	Matthew Clark
		Title:	Executive Vice President, Chief Financial Officer

 

[Signature Page to Conversion Agreement]

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