Exhibit 10.1


EMPLOYMENT AGREEMENT


This
EMPLOYMENT AGREEMENT (the “Agreement”) is
entered into this 6th day of September, 2007, between THE CHEESECAKE
FACTORY INCORPORATED, a Delaware corporation (the “Company”)
and Russell Bendel (the “Executive”).


WHEREAS, on August
14, 2007 the Compensation Committee (the “Compensation Committee”)
of the Board of Directors (the “Board”) of the
Company approved and authorized the entry into this Agreement with the
Executive; and


WHEREAS, the
parties desire to enter into this Agreement setting forth the terms and
conditions for the employment relationship between the Executive and the
Company;


NOW, THEREFORE, in
consideration of the promises and mutual covenants and agreements herein
contained and intending to be legally bound hereby, the Company and the
Executive hereby agree as follows:


1.             Employment.  The
Executive is employed as the President and Chief Operations Officer of the
Cheesecake Factory Restaurants Inc., a wholly owned subsidiary of the Company.  In such capacity, the Executive shall have
such duties and responsibilities to the Company and its subsidiaries as may be
designated to the Executive by the Board from time to time and as are not
inconsistent with the Executive’s position. 
The Executive shall devote substantially all the Executive’s working
time, attention and energies to the business and affairs of the Company and the
Company’s subsidiaries.  The Executive
shall report directly to the Chief Executive Officer of the Company.  While employed by the Company during the Term
of this Agreement, the Executive shall not serve as the member of the board of
directors of any other for-profit corporation or as the manager of any limited
liability company.  Without the prior written
approval of the Chief Executive Officer, the Executive shall not serve as the
member of the board of directors or trustees of any non-profit or charitable
organization; provided, however, such restriction shall not apply to The
Cheesecake Factory Oscar and Evelyn Overton Foundation or the California
Restaurant Association.


2.             Term.  The initial “Term of this
Agreement” shall mean the period commencing on the date hereof and
ending on September 6, 2010.  On such
date, and on each subsequent September 6th thereafter, the
Term of this Agreement shall be automatically extended for one additional
calendar year unless, at least ninety (90) days prior to September 6th of each year during the Term of this
Agreement, either the Company or the Executive shall give notice not to extend
this Agreement.  Unless otherwise
terminated earlier in accordance with Section 9, “The Term of this Agreement”
shall mean, for purposes of this Agreement, such initial three-year term and
subsequent extensions, if any.


3.             Benefits.  During
the Term of this Agreement, Executive shall be eligible for the following
compensation and benefits:













(a)           Annual
Salary. Subject to the
further provisions of this Agreement, the Company shall pay the Executive
during the Term of this Agreement a base salary at an annual rate during the Term
equal to $450,000, with such salary to be adjusted at such times, if any, and
in such amounts as determined by the Compensation Committee (“Annual Salary”), provided, however,
the Executive’s Annual Salary shall not be decreased without the Executive’s
prior written consent unless the annual salaries of all other Executive
Officers are proportionately decreased. 
Any increase in salary shall not serve to limit or reduce any other
benefit or obligation of the Company hereunder. 
The Company shall pay such salary to the Executive, in equal
installments, not less frequently than monthly in accordance with the Company’s
standard payroll practices for employees who are Executive Officers of the
Company.  The Executive’s participation
in deferred compensation, discretionary and/or performance bonus, retirement,
stock option and/or other employee benefit plans and in fringe benefits shall
not reduce the Executive’s Annual Salary.


(b)           Equity Grant. Subject to the approval by the
Compensation Committee of the Company’s Board of Directors (“Compensation
Committee”), the Executive shall be granted an initial grant of 100,000
non-qualified stock options, which vest twenty percent (20%) each year over a
five-year period on the first (1st), second (2nd), third (3rd), fourth (4th), and fifth (5th) anniversary dates of the grant date, respectively, subject to the
Company meeting certain earnings goals, as described in Executive’s award
agreement, at an exercise price equal to fair market value of the Company’s
stock on the date of grant, plus 35,000
restricted shares of the Company’s stock, which restrictions lapse at the rate
of sixty percent (60%) on the 3rd anniversary of the grant date, and twenty
percent (20%) on each of the fourth (4th) and fifth (5th) anniversary dates of the grant
date, respectively, all in accordance with the terms and conditions of The
Cheesecake Factory Incorporated 2001 Omnibus Stock Incentive Plan.


Executive
also shall be eligible for consideration for future equity awards, in
accordance with the terms
and conditions of The Cheesecake Factory Incorporated 2001 Omnibus Stock
Incentive Plan, as such plan may be modified or amended from time to time,
or such other or additional equity programs as may be established by the
Company from time to time for its Executive Officers. The Compensation
Committee shall determine the amount and timing of such awards, if any, under
the Company’s equity compensation plans.


(c)           Automobile. The
option to participate in the Company’s leased car program (currently a BMW-7
series automobile with insurance coverage) or, in lieu of participating in the
leased car program, the right to receive an automobile allowance in the amount
of one thousand two hundred dollars ($1200.00) per month, in accordance with
the Company’s policies and procedures for the leased car program and subject to
all applicable taxes and withholdings.


(d)           Participation
in Bonus, Retirement and Employee Benefit Plans.


(i)            While
employed by the Company during the Term of this Agreement, the Executive shall
be entitled to participate equitably with other Executive Officers in any plan
of the Company relating to pension, profit sharing, life insurance, education,
or other retirement or employee benefits that the Company has adopted or may
adopt for the benefit of its Executive Officers, to the extent eligible
thereunder by virtue of the Executive’s position, tenure and salary, including
without limitation, The Cheesecake
Factory Incorporated Executive Savings Plan and The Cheesecake Factory Incorporated Amended and Restated Annual
Performance Incentive



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Plan. The Compensation Committee shall
determine the amount and timing of awards, if any, under the Company’s bonus
plans. In the event any Executive retirement or employee benefit provides for a
receipt of compensation in a year subsequent to the year in which it was no
longer subject to a substantial risk of forfeiture, that benefit shall not be
given to the Executive unless that benefit is either exempt from Section 409A
or compliant with Section 409A.


(ii)           For
fiscal year 2007 only, Executive shall receive a prorated share of additional
compensation based upon his length of employment with the Company during fiscal
year 2007, in an amount equal to forty-two percent (42%) of his Annual Salary
for fiscal 2007 multiplied by a fraction, the numerator of which is the number
of days Executive is employed by the Company in fiscal year 2007 and the
denominator of which is 365 (“2007
Additional Compensation”). The 2007 Additional Compensation shall be
made to Executive in lieu of Executive’s participation in The Cheesecake Factory Incorporated Amended
and Restated Annual Performance Incentive Plan for Fiscal 2007 and shall be due
and payable to Executive on January 15, 2008 provided that Executive is
employed by the Company through and including the last day of the Company’s
2007 fiscal year.


(e)           Paid Vacation.
While employed by the Company during the Term of this Agreement, the Executive
shall be entitled to an annual paid vacation in accordance with the Company’s
general administrative policy but in no event less than the greater of the
amount of paid vacation time provided to other Executive Officers, or three
weeks per year.


4.             Relocation.  Executive’s
offices shall be at the corporate headquarters of the Company, currently
located in Calabasas Hills, California, and Executive shall, when not traveling
on Company business, work at such corporate offices. The Company shall
reimburse Executive for his reasonable relocation expenses and/or make the
following payments to Executive to assist in his relocation from Orange County
to the greater Los Angeles Metropolitan area: (i) reimburse reasonable
temporary housing costs in the Calabasas Hills, California area for a one or
two-bedroom, furnished apartment, not to exceed a period of three months from
the date of employment; (ii)  reimburse
up to three visits, including meals, rental car or mileage and gas for
Executive’s personal car, and accommodations, in accordance with the Company’s
policies for travel reimbursement, for Executive and his spouse to search for
permanent housing in the greater Los Angeles Metropolitan Area; (iii) reimburse
customary expenses incurred for the packing, shipping and unpacking of all
household goods from Orange County to Los Angeles County;  (iv) 
make a one time payment of thirty-five thousand dollars ($35,000),
subject to normal and customary withholdings, payable within two weeks of
Executive’s first day of employment; and (v) if Executive permanently relocates
his primary residence to the greater Los Angeles Metropolitan area during the
first two years of the Term of this Agreement, 
(A) reimburse real estate commissions (not to exceed six percent (6%) of
sales price), in connection with the sale of Executive’s current home located
in Orange County,  and (B) reimburse
actual customary closing costs (excluding required repairs, payment of interest
for money borrowed, prepayment penalties, and loan fees), in connection with
the sale of Executive’s current home located in Orange County,  plus an amount equal to the following taxes
which are assessed with respect to such closing costs: 25% Federal Supplemental
Tax, applicable State Supplemental Taxes, if any, and 7.65% Social Security and
Medicare, less (C) thirty-five thousand dollars ($35,000) previously paid to
Executive under Section 4(iv) above.  If
Executive voluntarily terminates his employment with the Company, other than
because of a Constructive Termination, or is terminated for Cause, within a two
year period from the effective date of this Agreement,



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Executive agrees to reimburse the Company for the costs and expenses
incurred by the Company under this Section 4 (iii), (iv) and (v) (“Reimbursables”)
on a prorata basis, such reimbursement to be equal to the total Reimbursables,
less the amount derived by multiplying the total Reimburseables by a fraction,
the numerator of which is the number of months of employment completed with the
Company as of the Date of Termination and the denominator of which is 24.


5.             Health Insurance
Premiums; Fringe Benefits.  While
employed by the Company during the Term of this Agreement, the Company shall
pay a portion of Executive’s premium for medical, dental and vision care
insurance with respect to the Executive and the Executive’s immediate family
members under the Company’s employee medical insurance policies to the extant
provided to other Executive Officers of the Company and based upon the most
comprehensive medical, dental and vision care insurance plan offered to the
Company’s Executive Officers.  In addition
and while employed by the Company during the Term of this Agreement, the
Executive shall be entitled to receive all other fringe benefits that are now
or may be hereafter provided to the Company’s other Executive Officers.  The Company shall appropriately adjust such
fringe benefits to the extent that the level or amount of any fringe benefit is
based upon seniority, compensation levels, or geographic location.


6.             Business Expenses.  While employed by the Company during the Term
of this Agreement, the Executive shall be entitled to incur and be reimbursed
for all reasonable business expenses. 
The Company shall reimburse the Executive for all these expenses
provided the Executive provides, from time to time, of an itemized account of
such expenditures setting forth the date, the purposes for which incurred, and
the amounts thereof, together with such receipts showing payments in conformity
with the Company’s established policies and procedures.


7.             Indemnity.  To the fullest extent permitted by the General
Corporation Law of the State of Delaware as the same exists or may hereafter be
amended, the Company shall indemnify and hold the Executive harmless from any
cost, expense or liability arising out of or relating to any acts or decisions
made by the Executive on behalf of or in the course of performing services for
the Company to the same extent the Company indemnifies and holds harmless other
Executive Officers and in accordance with the Company’s established
policies.  The indemnification provided
by this Section 7 shall not be deemed exclusive of any other rights to which
the Executive may be entitled under the Company’s certificate of incorporation,
any bylaw, agreement, contract, vote of the stockholders or disinterested
directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise.


8.             Certain Terms
Defined.  For purposes of this
Agreement:


(a)           “Affiliate” shall mean a person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with the person specified.


(b)           “Base Salary” means, as of any date of termination of
employment, the highest Annual Salary of the Executive in any of the last three
fiscal years preceding such date of termination of employment.



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(c)           “Beneficial Owner” shall have the meaning given to such term
in the Exchange Act and the rules and regulations thereunder.


(d)           “Cause” means a termination of employment upon:  (i) the failure by the Executive to perform
the Executive’s duties with the Company (other than any such failure resulting
from the Executive’s incapacity due to physical or mental illness), after there
has been delivered to the Executive a written demand for performance from the
Company which demand specifically identifies the basis for the Company’s belief
that the Executive has not substantially performed the Executive’s duties;
(ii)  dishonesty, incompetence or gross
negligence in the discharge of the Executive’s duties; (iii) theft,
embezzlement, fraud, breach of confidentiality, or unauthorized disclosure or
use of inside information, recipes, processes, customer or employee lists,
trade secrets, or other Company proprietary information; (iv) willful material
violation of any law, rule or regulation of any governing authority or of the
Company’s policies and procedures, including, without limitation, the Company’s
Code of Ethics and Code of Conduct applicable to the Executive; (v) material
breach of any agreement with the Company; (vi) intentional conduct that is
injurious to the reputation, business or assets of the Company; or (vii)
solicitation of the Company’s agents or staff members to work for any other
business entity.


(e)           A
“Change of Control” occurs if:


(i)            any
Person (other than the Executive) or that Person’s Affiliate is or becomes the
Beneficial Owner, directly or indirectly, of securities of the Company
representing 33 1/3% or more of the combined voting power of the Company’s then
outstanding voting securities (“Voting Securities”);
or


(ii)           the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation (or other entity), other than:


(1)           a
merger or consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the Voting
Securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation;


(2)           a
merger or consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person acquires more than 50% of the
combined voting power of the Company’s then outstanding Voting Securities; or


(3)           a
merger or consolidation that would result in the directors of the Company (who
were directors immediately prior thereto) continuing to constitute at least 50%
of all directors of the surviving entity after such merger or consolidation.


In this
subparagraph (ii), “surviving entity” shall mean only an entity in which all
the Company’s stockholders immediately before such merger or consolidation
(determined without taking into account any stockholders properly exercising
appraisal or similar rights) become stockholders by the terms of such merger or
consolidation, and the phrase “directors of the Company (who were directors
immediately prior thereto)” shall include only individuals who



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were
directors of the Company at the beginning of the 24 consecutive month period
preceding the date of such merger or consolidation.


(iii)          the stockholders of the Company approve a
plan of complete liquidation or an agreement for the sale or disposition of all
or substantially all of the Company’s assets; or


(iv)          during
any period of 24 consecutive months, individuals, who at the beginning of such
period constitute the Board of Directors of the Company, and any new director
whose election by the Board of Directors, or whose nomination for election by
the Company’s stockholders, was approved by a vote of at least one-half (1/2)
of the directors then in office (other than in connection with a contested
election), cease for any reason to constitute at least a majority of the Board
of Directors.


(f)            “Code” means the Internal Revenue Code of 1986, as amended.


(g)           “Constructive Termination” means the occurrence of one or
more of the following events without the Executive’s written consent: (i), a
relocation of the Executive’s principal business office to a location which is
in excess of a forty-five (45) mile-radius from the Executive’s principal
business office in the Company’s corporate headquarters in Calabasas Hills,
California; or (ii) the significant reduction of the Executive’s title, duties
or responsibilities relative to the Executive’s title, duties or
responsibilities in effect immediately prior to such reduction; or (iii) a
decrease in the Executive’s Annual Salary or a decrease and/or discontinuation
of any benefit plan or program, or level of participation in any such plan or
program, from the current plans, programs or levels currently applicable to
Executive Officers, which decrease or discontinuation does not apply to all
Executive Officers, or a failure to include the Executive in any new benefit
plan or program offered to other Executive Officers; or (iv) the failure of the
Company to honor any of the material provisions of this Agreement after receipt
of written notice of such failure from Executive and opportunity to remedy such
failure within thirty (30) days of receipt of such notice.


(h)           “Date of Termination” means the date of actual receipt of a
Notice of Termination given under Section 16 below or any later date specified
therein (but not more than fifteen (15) days after the giving of the Notice of
Termination), as the case may be; provided that (i) if the Executive’s
employment is terminated by the Company for any reason other than because of
the Executive’s death or as a result of the Executive becoming Permanently
Disabled, the Date of Termination is the date on which the Company gives notice
to the Executive of such termination or the Executive gives notice to the
Company that a Constructive Termination has occurred; (ii) if the Executive’s
employment is terminated due to Permanent Disability, the Date of Termination
is the date of actual receipt of a Notice of Termination; and (iii) if the
Executive’s employment is terminated due to the Executive’s death, the Date of
Termination shall be the date of death. 
The Company’s receipt of a notification by Executive of a Constructive
Termination shall not be deemed to constitute the Company’s acknowledgement,
agreement or admission that a Constructive Termination has occurred.


(i)            “Exchange Act” means the Securities Exchange Act of 1934, as
amended.



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(j)            “Executive Officer” means a person who is the Company’s
President and Chief Operating Officer – Restaurant Division or an Executive
Vice President of the Company.


(k)           “Involuntary Separation” means an involuntary separation as
that term is defined in Regulation Section 1.409A-1(b)(9)(iii).


(l)            “Notice of Termination” means a written notice that (i)
indicates the specific termination provision in this Agreement relied upon;
(ii) sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive’s employment under the
provision so indicated; and (iii) specifies the Date of Termination.


(m)          “Person” is given the meaning as such term is used in
Sections 13(d) and 14(d) of the Exchange Act; provided, however, that unless
this Agreement provides to the contrary, the term shall not include the
Company, any trustee or other fiduciary holding securities under an employee
benefit plan of the Company, or any corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company.


(n)           “Permanent Disability” shall mean a physical or mental
condition that occurs and persists and which, in the written opinion of a
licensed physician selected by the Board in good faith, has rendered the
Executive unable to perform the Executive’s duties hereunder for a period of
ninety (90) consecutive days or more, or a period of ninety (90)
non-consecutive days in any one year period, and, in the written opinion of
such physician, the condition will continue for an indefinite period of not
less than an additional ninety (90) day period, rendering the Executive unable
to return to the Executive’s duties on a full time basis.


(o)           “Regulations” means the official Treasury Department
interpretation of the Internal Revenue Code.


(p)           “Section 409A” means Section 409A of the Code, and the
Regulations promulgated thereunder.


(q)           “Separation from Service” means a separation from service as
that term is used in Code Section 409A(a)(2)(i) and the Regulations thereunder.


(r)            “Specified Employee” means a specified employee as that term
is used in Code Section 409A(a)(2)(B)(i) and the Regulations thereunder.


(s)           “Voluntary Separation with Good Reason” means a voluntary
separation as that term is defined in Regulation Section 1.409A-1(h)(2).


9.             Termination of
Agreement.


(a)           Death
or Disability.  This Agreement shall
terminate automatically upon the Executive’s death or upon receipt of a Notice
of Termination in the event that Executive is Permanently Disabled.



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(b)           Cause.  The Company may terminate this Agreement at
any time concurrently with or after a termination of Executive’s employment for
Cause.


(c)           Constructive
Termination.  The Executive may
terminate this Agreement at any time within sixty (60) days after the
occurrence of a Constructive Termination.


(d)           Notice
of Termination.  Any termination of
the Executive’s employment by the Company for Cause or without Cause, or by the
Executive following a Constructive Termination, shall be communicated by Notice
of Termination to the other party, given in accordance with Section 16.  A Notice of Termination by the Company shall
be signed by the Company’s Chief Executive Officer.  Any termination due to Permanent Disability
shall be by written notice given in accordance with Section 16.


10.           Certain Benefits
Upon Termination.


(a)           If (i) during the Term
of this Agreement, the Company terminates the Executive’s employment for any
reason other than for Cause (including by reason of death or Permanent
Disability) or (ii) within 18 months after a Change of Control that occurs
during the Term of this Agreement, the Company terminates the Executive’s
employment (whether or not the Term of this Agreement has ended without
renewal) for any reason other than for Cause, or (iii) the Executive terminates
this Agreement at any time within sixty (60) days of the occurrence of a
Constructive Termination, then the following shall apply: (I) the Company shall
pay the Executive a “Severance Payment” in cash equal to one times the
Executive’s Base Salary (1/2 the Executive’s Base Salary if termination is by
reason of death); (II) the Company shall pay or provide to the Executive all
other benefits, as specified in Section 10(b) below; (III) all installments of
options to purchase shares of the Company’s Common Stock that are scheduled to
become exercisable within thirty-six (36) months of the Date of Termination
shall become exercisable and vest as of the Date of Termination subject to
expiration or termination as set forth in the applicable stock option plan or
agreement; and (IV) the Company shall pay the Executive a performance
achievement bonus under the Company’s Annual Performance Incentive Plan that is
proportionately adjusted to take into account the period of actual service by
the Executive during the Company’s fiscal year in which the Executive’s
employment is terminated, provided that
the Compensation Committee certifies in writing that the performance incentive
target for that fiscal year has been achieved and such payment is not
inconsistent with Section 162(m) of the Code and the regulations thereunder.


(b)           If Section 10(a) above
applies, then the Company shall provide the following additional benefits to
Executive: (i) for a 12 month period after the Date of Termination (the “Continuation Period”), the Company shall, at its expense,
continue on behalf of the Executive and the Executive’s dependents and
beneficiaries, medical, dental, vision care, and hospitalization benefits (or
such comparable alternative benefits determined by the Company, in its
discretion) that (I) were provided to Executive at any time during the 90-day
period prior to the Date of Termination, or (II) if termination is within 18
months of a Change of Control, were provided to Executive prior to such Change
of Control (provided the level of such benefits shall in no event be lower than
the Executive’s level of benefits on the Date of Termination).  The Company’s obligation hereunder with
respect to benefits under this Section 10(b) shall be limited to the extent
that the Executive obtains any such benefits pursuant to the Executive’s



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subsequent
employer’s benefit plans, if any, in which case the Company may reduce the
coverage of any benefits it is required to provide the Executive under this
Section 10(b) so long as the aggregate coverages and benefits of the combined
benefit plans are no less favorable to the Executive than the coverages and
benefits required to be provided hereunder. This Section 10(b) shall not be
interpreted so as to limit any benefits to which the Executive, the Executive’s
dependents or beneficiaries may be entitled under any of the Company’s other
employee benefit plans, programs or practices following a termination of
employment, including without limitation, retiree medical and life insurance
benefits, except as provided in this Section. Retiree medical and life
insurance benefits shall be limited by and be designed to either (A) be exempt
from 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 (B) be compliant with the
requirements of Regulation Section 1.409A-3(i).


(c)           In the event that the
Executive’s employment is terminated for any reason, the Company shall pay to
the Executive:  (i) all accrued but
unpaid salary and amounts due to the Executive as of the Date of Termination,
and (ii) all accrued but unpaid or unused vacation, sick pay or expense reimbursement
benefit, up to the Date of Termination.


(d)           In
the event that the Executive’s employment is terminated by reason of the
Executive’s death or if the Executive is not a Specified Employee, the Company
shall make all cash payments to which the Executive is entitled pursuant to
Section 10(a)(I) within thirty (30) days following the Executive’s Separation
from Service, provided that the Company may delay payment in the case of the
Executive’s death until the Executive’s executor or personal representative has
been appointed and qualified pursuant to the laws in effect in the Executive’s
jurisdiction of residence at the time of the Executive’s death.  If the Executive, as of the date of
Separation from Service, is a Specified Employee under Section 409A, then the
Company shall, unless as otherwise provided in this paragraph, pay to the
Executive all amounts due and owing under Section 10(a)(I) on that date which
is five (5) business days following the date that is six (6) months after the
date of Executive’s Separation from Service, provided that the Executive’s
employment is not terminated for Cause. 
If the Executive is a Specified Employee and it is determined that
Section 10(a)(I) provides payment only in the event of Involuntary Separation
or Voluntary Separation with Good Reason, then the Company shall pay to the
Executive within thirty (30) days of the date of Executive’s Separation from
Service such amounts of the separation pay not to exceed the maximum limit
permitted under Regulation Section 1.409-1(b)(9)(iii)(2).  Any amounts which remain unpaid after paying
all amounts permitted by the dollar limitation under Regulation Section
1.409-1(b)(9)(iii)(2), shall be paid five (5) business days following the date
that is six (6) months after the Employee’s Separation from Service.  Notwithstanding the foregoing, the Company
shall pay such cash payments over a one year period, on a bi-weekly basis
commencing when such payments shall first become payable.


(ii)           The
timing and payment of any performance achievement bonus to which the Executive
is entitled pursuant to Section 10(a)(IV) shall be determined as set forth in
the Company’s Annual Performance Incentive Plan.


(e)           In
the event that the Executive’s employment terminates by reason of the Executive’s
death, the applicable Severance Payment and other benefits provided in this
Section 10 shall be paid to the Executive’s estate or as the Executive’s
executor shall direct.



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(f)            In the event that the
Executive’s employment is terminated other than by reason of death or because
the Executive has become “disabled” as defined in Section 409A(a)(2)(C) of the
Code, the Company shall make all cash payments to which the Executive is entitled
pursuant to Section 10(a)(I) on that date which is five (5) business days
following the date that is six (6) months after the Date of Termination of the
Executive’s employment.  In the event
that the Executive’s employment is terminated by reason of the Executive’s
death or because the Executive has become disabled as defined in Section
409A(a)(2)(C) of the Code, the Company shall make all cash payments to which
the Executive is entitled pursuant to Section 10(a)(I) within thirty (30) days
following the Date of Termination, provided that the Company may defer payment
in the case of the Executive’s death until the Executive’s executor or personal
representative has been appointed and qualified pursuant to the laws in effect
in the Executive’s jurisdiction of residence at the time of the Executive’s
death.  Notwithstanding the foregoing,
the Company may pay such cash payments over a one year period, on a bi-weekly
basis commencing when such payments shall first become payable.  The timing of the payment of any performance
achievement bonus to which the Executive is entitled pursuant to Section
10(a)(IV) shall be determined as set forth in the Company’s Annual Performance
Incentive Plan.


(g)           In the event the
Executive is entitled hereunder to any payments or benefits set forth in this
Section 10, the Executive shall have no obligation or duty to mitigate. The provisions for
Severance Payment and other benefits contained in this Section 10 may be
triggered only once during the term of this Agreement, so that, for example,
should the Executive be terminated because of a Permanent Disability, and
should there be a Change of Control and Constructive Termination thereafter,
then the Executive would be entitled to be paid under this Section 10 only
once. In addition, the Executive shall not be entitled to receive severance
benefits of any kind from any wholly owned subsidiary or other affiliated
entity of the Company if, in connection with the same event or series of
events, the Severance Payment and other benefits provided for in this Section
10 previously have been paid.


(h)           (i)            In the event that any
payment or benefit (within the meaning of Section 280G(b)(2) of the Code), to
the Executive or for his or her benefit paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise in
connection with, or arising out of, his or her employment with the Company or a
change in ownership or effective control of the Company or of a substantial
portion of its assets (a “Payment” or “Payments”), would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive will be entitled to receive
an additional payment (the “Additional Payment”)
in an amount such that after payment by the Executive of all taxes (including
any interest or penalties, other than interest and penalties imposed by reason
of the Executive’s failure to file timely a tax return or pay taxes shown due
on his return, imposed with respect to such taxes and the Excise Tax),
including any Excise Tax imposed upon the Additional Payment, the Executive
retains an amount of the Additional Payment equal to the Excise Tax imposed
upon the Payments.


(ii)           An initial determination as
to whether an Additional Payment is required pursuant to this Agreement and the
amount of such Additional Payment shall be made at the Company’s expense by an
accounting firm selected by the Company and reasonably acceptable



 10
 









to the
Executive which is designated as one of the four largest accounting firms in
the United States (the “Accounting Firm”).  The Accounting Firm shall provide its
determination (the “Determination”),
together with detailed supporting calculations and documentation to the Company
and the Executive within five (5) days of the Termination Date, if applicable,
or such other time as requested by the Company or by the Executive (provided
the Executive reasonably believes that any of the Payments may be subject to
the Excise Tax) and if the Accounting Firm determines that no Excise Tax is
payable by the Executive with respect to a Payment or Payments, it shall
furnish the Executive with an opinion reasonably acceptable to the Executive
that no Excise Tax will be imposed with respect to any such Payment or
Payments.  Within ten (10) days of the
delivery of the Determination to the Executive, the Executive shall have the
rights to dispute the Determination (the “Dispute”).  The Additional Payment, if any, as determined
pursuant to this Section 10(h) shall be paid by the Company to the Executive
within five (5) days following the date that is six (6) months after the
Employee’s Separation From Service, unless the Separation From Service is by
reason of death of the Executive, or the Executive is not a Specified Employee,
then such payments shall be made within thirty (30) days from the Employee’s
Separation From Service.  The existence
of the Dispute shall not in any way affect the Executive’s right to receive the
Additional Payment in accordance with the Determination.  Upon the final resolution of a Dispute, the
Company shall pay to the Executive any additional amount required by such
resolution within five (5) days following the date that is six (6) months after
the Employee’s Separation From Service, unless the Separation From Service is
by reason of death of the Executive, or the Executive is not a Specified Employee,
then such payments shall be made within thirty (30) days from the Employee’s
Separation From Service.  If there is no
Dispute, the Determination shall be binding, final and conclusive upon the
Company and the Executive.


(i)            In the event that the
Executive’s employment is terminated for any reason, the Company shall
reimburse the Executive promptly for all business expenses incurred prior to
the Date of Termination upon the presentation by the Executive of an itemized
account of such expenditures, setting forth the date, the purposes for which
incurred and the amounts thereof, together with such receipts showing payments
in conformity with the Company’s established policies.


(j)            The rights of the
Executive under this Section 10 shall not be exclusive of any other rights to
which the Executive may be entitled under any bonus, retirement or employee
benefit plan of the Company.


11.     Assignment.


(a)           This Agreement is
personal to each of the parties hereto. 
No party may assign or delegate any rights or obligations hereunder
without first obtaining the written consent of the other party hereto, except
that this Agreement shall be binding upon and inure to the benefit of any
successor entity to the Company.


(b)           The Company shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform it if no such succession had



 11
 









taken place.  No such assumption shall release the Company
of its obligations hereunder. As used in this Agreement, “Company” shall mean
the Company as herein before defined and any successor to its business and/or
assets as aforesaid which assumes this Agreement by operation of law, or
otherwise.


(c)           This Agreement shall
inure to the benefit of and be enforceable by the Executive and his or her
personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees.


12.           Confidential
Information.  During the Term of this
Agreement and thereafter, the Executive shall not, except as may be required to
perform the Executive’s duties hereunder or as required by applicable law,
disclose to others for use, whether directly or indirectly, any Confidential
Information regarding the Company.  “Confidential Information” shall mean information about the
Company, its subsidiaries and affiliates, and their respective clients and
customers that is not available to the general public and that was learned by
the Executive in the course of the Executive’s employment by the Company,
including (without limitation) any data, formulae, information, proprietary
knowledge, trade secrets and client and customer lists and all papers, resumes,
records and the documents containing such Confidential Information.  The Executive acknowledges that such
Confidential Information is specialized, unique in nature and of great value to
the Company, and that such information gives the Company a competitive
advantage.  Upon the termination of the
Executive’s employment, the Executive will promptly deliver to the Company all
documents (and all copies thereof) containing any Confidential Information.


13.           Non-competition.  The Executive agrees that during his
employment with the Company, the Executive will not, directly or indirectly,
without the prior written consent of the Company, provide consultative service
with or without pay, own, manage, operate, join, control, participate in, or be
connected as a stockholder, partner, or otherwise with any business,
individual, partner, firm, corporation, or other entity which is then in
competition with the Company or any present Affiliate of the Company; provided,
however, that the “beneficial ownership” by the Executive, either
individually or as a member of a “group,” as such terms are used in Rule 13d of
the Exchange Act, of not more than 1% of the voting stock of any publicly held
corporation, and provided further, Executive’s passive investment (i.e., only a
non-management role) as a partner in “Lazy Dog Cafe”, shall not be a violation
of this Agreement.  It is further
expressly agreed that the Company will or would suffer irreparable injury if
the Executive were to compete with the Company or any subsidiary or affiliate
of the Company in violation of this Agreement and that the Company would by
reason of such competition be entitled to injunctive relief in a court of
appropriate jurisdiction, and the Executive further consents and stipulates to
the entry of such injunctive relief in such a court prohibiting the Executive
from competing with the Company or any subsidiary or affiliate of the Company
in violation of this Agreement.


14.           Right to Company Materials.  The Executive agrees that all styles,
designs, recipes, lists, materials, books, files, reports, correspondence,
records, and other documents (“Company Material”)
used, prepared, or made available to the Executive, shall be and shall remain
the property of the Company.  Upon the
termination of the Executive’s employment or the



 12
 









expiration of this
Agreement, all Company Materials shall be returned immediately to the Company,
and Executive shall not make or retain any copies thereof.


15.           Anti-solicitation.  The Executive promises and agrees that during
the Term of this Agreement, and for a period of 24 months thereafter, he will
not solicit or attempt to solicit employees, customers, franchisees, landlords,
or suppliers of the Company or any of its present or future subsidiaries or
affiliates, either directly or indirectly, to divert their business to any
individual, partnership, firm, corporation or other entity then in competition
with the business of the Company, or any subsidiary or affiliate of the
Company.


16.           Notice.  For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when delivered or mailed by United
States certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth below, or to such other
addresses as either party may have furnished to the other in writing in
accordance herewith, except that notice of a change of address shall be
effective only upon actual receipt:


	
   

  	
  Company:

  	
   

  	
  The Cheesecake Factory Incorporated

  
	
   

  	
   

  	
   

  	
  26901 Malibu Hills Road

  
	
   

  	
   

  	
   

  	
  Calabasas Hills, California 91301

  
	
   

  	
   

  	
   

  	
  Attention: Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  	
  Same address as above

  
	
   

  	
   

  	
   

  	
  Attn: [General Counsel]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Executive:

  	
   

  	
  The Cheesecake Factory Incorporated

  
	
   

  	
   

  	
   

  	
  26901 Malibu Hills Road

  
	
   

  	
   

  	
   

  	
  Calabasas Hills, California 91301

  
	
   

  	
   

  	
   

  	
  Attn: Russell Bendel

  



 


17.           Amendments or
Additions.  No amendment or additions
to this Agreement shall be binding unless in writing and signed by both parties
hereto.


18.           Section Headings.  The section headings used in this Agreement
are included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.


19.           Severability.  The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof.


20.           Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but both of
which together will constitute one and the same instrument.


21.           Alternative Dispute
Resolution.  The Company and
Executive agree that any dispute that arises out of or relates to Executive’s
employment with the Company, including any dispute that he may have with any
present or former officer, director, employee, agent, attorney or insurer of



 13
 









the Company, shall be
submitted exclusively to binding arbitration for a final decision.  The arbitration shall be conducted by one
arbitrator in Los Angeles, California. 
The parties shall meet and confer in good faith to select an arbitrator,
who shall be a retired judge of the Superior Court of the state of California
or any federal district court located within the state of California, and shall
have at least ten (10) years of experience as a judge of said court(s).  The arbitrator shall determine in his or her
discretion which arbitration rules and procedures shall apply throughout the
arbitration, provided that such rules comply with applicable law.  The Company shall pay the fees and costs of
arbitration to the extent required under California law.  Judgment may be entered on the arbitrator’s
award in any court having jurisdiction. 
Notwithstanding the foregoing, such arbitration shall be conducted in
accordance with the following procedures:


(a)           Procedures:  The arbitrator shall allow such discovery as
authorized by the California Code of Civil Procedure or Federal Rules of Civil
Procedure, as determined by the arbitrator. 
The arbitrator shall resolve the dispute as expeditiously as
practicable, and shall give the parties written notice of the decision, with
the reasons therefor set out, and shall have thirty (30) days thereafter to
reconsider and modify such decision if any party so requests within thirty (30)
days after the decision.


(b)           Authority:  The arbitrator shall have authority to award
relief under legal or equitable principals, including interim or preliminary
relief.  The prevailing party shall be
awarded its reasonable attorneys fees and costs.


(c)           Entry of Judgment:  Judgment upon the award rendered by the
arbitrator may be entered in any court having in person and subject matter
jurisdiction.  Company and Executive
hereby submit of the federal and state courts in Los Angeles, California, for
the purpose of confirming any such award and entering judgment thereon.


22.           Miscellaneous.  No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and such officer as may be
specifically designated by the Board or the Compensation Committee.  No waiver by either party hereto at any time
of any breach by the other party hereto of, or compliance with, any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.  No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. 
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of California without
regard to its conflicts of law principles. 
All references to sections of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law.  In
the event that the Company shall not pay when due any amounts required to be
paid to the Executive, such unpaid amounts shall accrue interest from the due
date at the lesser of the prime commercial lending rate announced by Bank of
America N.A. in effect from time to time during the period of nonpayment or the
maximum rate allowed by law.



 14
 









23.           Deferred
Compensation.  The parties agree that
all provisions of this Agreement are intended to meet, and to operate in
accordance with, in all material respects, the requirements of paragraphs (2),
(3), and (4) of Section 409A(a) of the Code, and any guidance from the
Department of Treasury or Internal Revenue Service thereunder, including any
and all specifically referenced Regulation Sections contained in the
Agreement.  Where ambiguity or
uncertainty exists, this Agreement shall be interpreted in a manner which would
qualify any compensation payable hereunder to satisfy the requirements for
exception to or exclusion from 409A and the taxes imposed thereunder.


In the event either party
reasonably determines that any item payable by the Company to the Executive
pursuant to this Agreement that is not subject to a substantial risk of
forfeiture would not meet, or is reasonably likely not to meet, the
requirements of paragraphs (2), (3) and (4) of Section 409A, or to qualify as
exempt from Section 409A, such party shall notify the other in writing.  Any such notice shall specify in reasonable
detail the basis and reasons for such party’s determination.  The parties agree to negotiate in good faith
the terms and conditions of an amendment to this Agreement to avoid the
inclusion of such item in a tax year before the Executive’s actual receipt of
such item of income.  Provided, however,
nothing in this Section 24 shall be construed or interpreted to require the
Company to increase any amounts payable to the Executive pursuant to this Agreement
or to consent to any amendment that would materially and adversely change the
Company’s financial accounting or tax treatment of the payments to the
Executive under this Agreement.  Any item
payable under this Agreement that the Company reasonably determines is subject
to Section 409A(a)(2)(B)(i) of the Code, shall not be paid or commence payment
before the later of (a) six months after the date of the Executive’s Separation
from Service and (b) the payment date or commencement date specified in this
Agreement for such item.


24.           Survival. The
provisions of this Agreement that may be reasonably interpreted as surviving
expiration or termination of this Agreement, including Sections 7, 10, 12, 14,
15 and 21 shall continue in effect after expiration or termination of this
Agreement. No termination of this Agreement by either party shall result in a
termination of any vested stock options, except in accordance with the terms
and conditions of the applicable stock option agreement.


IN WITNESS WHEREOF, each
of the parties hereto has executed this Agreement on the date first indicated
above.


	
  

  	
   

  	
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE CHEESECAKE FACTORY INCORPORATED,

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  David Overton, President and Chief Executive

  
	
   

  	
   

  	
   

  	
  Officer

  



 



 15
 









 


	
  

  	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Russell Bendel

  
	
   

  	
   

  	
   

  	
  Title: President and Chief Operating Officer, The

  
	
   

  	
   

  	
   

  	
  Cheesecake Factory Restaurants, Inc.

  



 



 16