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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
November 11, 2004
THE CHEESECAKE FACTORY INCORPORATED
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(Exact Name of Registrant as Specified in its Charter)
Delaware 0-20574 51-0340466
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
26950 Agoura Road
Calabasas Hills, California 91301
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(818) 871-3000
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14.d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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SECTION 1 - OTHER EVENTS
ITEM 1.01 OTHER EVENTS
On November 9, 2004, the Company approved an amendment and restatement of
its annual performance incentive plan to be effective commencing with its 2005
fiscal year. Pursuant to Item 1.01 of Form 8-K, the following is a brief
description of the terms and conditions of the plan that may be considered
material to the Company. The description is not a complete description of all
the terms and conditions of the plan and is qualified in its entirety by
reference to the plan which the Company will file as an exhibit to its next
periodic report under the Securities and Exchange Act of 1934, as amended.
As amended and restated, eligible participants under the plan include the
Company's executive and other officers, director-level staff employees,
restaurant managers, and in the case of discretionary bonuses, other employees
of the Company and its subsidiaries. The plan provides for the award of
discretionary bonuses and performance achievement bonuses. Discretionary bonuses
are determined based on factors, including the Company's, subsidiary's or
business unit's financial results, advancement in research and development,
technological achievements, performance beyond pre-established objectives,
extraordinary tangible or intangible contributions to the Company, a subsidiary,
or a business unit as well as other factors. The amount of any discretionary
bonus may not exceed 100% of the employee's base salary (as defined in the
plan). Performance achievement bonuses are based on performance incentive
targets (as defined in the plan). The Compensation Committee is required to
establish in advance the specific targets and the formula for computing the
performance achievement bonus if the target is achieved. Unless the material
terms of the performance incentive targets are disclosed to and approved by the
Company's stockholders in accordance with Section 162(m) of the Internal Revenue
Code of 1986, as amended, (the "Code") the amount of any performance achievement
bonus will be reduced by the amount necessary for the aggregate sum of the
performance achievement bonus and all other remuneration (as defined in the
plan) not to exceed the Section 162(m) limitation amount. In no event may any
portion (the "excess compensation") of the discretionary bonus be paid to a
participant if and to the extent that the excess compensation when added
together with all other remuneration exceeds the limitation amount under Section
162(m). If and to the extent that in any year all or a portion of the excess
compensation when added together with all other remuneration does not exceed the
Section 162(m) limitation amount, the Company shall pay all or the portion of
the excess compensation that does not exceed the limitation amount. The Company
shall pay all of the unpaid excess compensation upon termination of the
participant's employment for any reason. However, no excess compensation shall
be payable by the Company if the Company determines that the excess compensation
would be, or is reasonably likely to be, pursuant to Section 409A of the Code or
any regulations or guidance thereunder includible in the participant's gross
income in a taxable year before the year in which the participant would actually
receive the excess compensation.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: November 11, 2004 THE CHEESECAKE FACTORY INCORPORATED
By: /s/ MICHAEL J. DIXON
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Michael J. Dixon
Senior Vice President and
Chief Financial Officer