EXHIBIT 10.1


 


The Cheesecake Factory Incorporated

2010 Stock Incentive Plan


 


NOTICE OF GRANT AND STOCK OPTION AGREEMENT

AND/OR RESTRICTED STOCK GRANT AGREEMENT


 


Notice
is hereby given of the following Option Grant to purchase Shares and/or Award
of Restricted Shares of The Cheesecake Factory Incorporated, a Delaware
corporation (“Company”), pursuant to the 2010 Stock Incentive Plan (“Plan”).  In consideration of the promises and of the
mutual agreements contained in this Notice of Grant and Stock Option Agreement
and/or Restricted Stock Grant Agreement (“Agreement”), the parties hereto agree
as follows:


 


Section 1. 
Definitions.  Capitalized
terms used in this Agreement and not otherwise defined herein shall have the
meanings ascribed thereto in the Plan.  Otherwise, as used in this Agreement, the
following terms shall have the following respective meanings:


 


	
  Award

  	
   

  	
   

  	
  The
  Options to purchase stock and/or Restricted Shares granted in accordance with
  this Agreement

  
	
  Code

  	
   

  	
   

  	
  The
  Internal Revenue Code of 1986, as amended.

  
	
  Company

  	
   

  	
   

  	
  The
  Cheesecake Factory Incorporated, a Delaware corporation.

  
	
  Grant
  Date

  	
   

  	
   

  	
  [date]

  
	
  Participant

  	
   

  	
   

  	
  [name]

  
	
  Holdback
  Shares

  	
   

  	
   

  	
  Shares
  of common stock issued upon exercise of the Option granted pursuant to the
  Plan and this Agreement equal to 33% of the shares received upon exercise of
  this Option, net of the tax effects of such exercise to the Participant.

  
	
  No. of
  Restricted Shares Awarded

  	
   

  	
   

  	
  [             ]
  shares

  
	
  No. of
  Non-Statutory Option Shares Granted

  	
   

  	
   

  	
  [             ]
  shares

  
	
  Option

  	
   

  	
   

  	
  The
  option to purchase shares of the Company’s Common Stock granted to
  Participant pursuant to the Plan and this Agreement. The Option is not
  intended to constitute an “incentive stock option” as that term is used in
  Code section 422.

  
	
  Option
  Exercise Price

  	
   

  	
   

  	
  $[       ]
  per share

  
	
  Option
  Expiration Date

  	
   

  	
   

  	
  [date]

  
	
  QDRO

  	
   

  	
   

  	
  A
  domestic relations order as defined in Code section 414(p)(1)(B).

  
	
  Restricted
  Shares

  	
   

  	
   

  	
  The
  shares of the Company’s Common Stock awarded to Participant pursuant to the
  Plan and this Agreement.

  
	
  Option
  Vesting Date

  	
   

  	
   

  	
  [date]
  as to [number] Option Shares

  
	
   

  	
   

  	
   

  	
  [date]
  as to [number] Option Shares

  
	
   

  	
   

  	
   

  	
  [date]
  as to [number] Option Shares

  
	
   

  	
   

  	
   

  	
  [date]
  as to [number] Option Shares

  
	
   

  	
   

  	
   

  	
  [date]
  as to [number] Option Shares

  
	
  Restricted
  Shares

  	
   

  	
   

  	
  [date]
  as to [number] Restricted Shares

  
	
  Vesting
  Date

  	
   

  	
   

  	
  [date]
  as to [number] Restricted Shares

  
	
   

  	
   

  	
   

  	
  [date]
  as to [number] Restricted Shares

  



 


Section 2. Designation of Award.  Subject to the terms and conditions of the
Plan and this Agreement, the Company grants to Participant the Option to
purchase the number of Option Shares shown above and/or grants to Participant
the number of Restricted Shares shown above.


 


Section 3. Interpretation.  The terms and provisions of the Plan are
hereby incorporated into this Agreement as if set forth herein in their
entirety.  Participant hereby agrees to
be bound by the terms of the Plan and this Agreement and acknowledges that the
Option is, and/or Restricted Shares are, granted subject to and in accordance
with the Plan and this Agreement.  In the
event of a conflict between any provision of this Agreement and the Plan, the
provisions of the Plan shall control.  By
execution below, 


 













 


Participant
acknowledges receipt of a copy of the 2010 Stock Incentive Plan Summary and
Prospectus. A copy of the Plan is available, without charge, upon request to
the Company’s Stock Plan Administrator.


 


Section 4. 
Exercise of Option; Sale of Shares. (a) This Option is
exercisable during its term in accordance with the Option vesting dates set out
in this Agreement and the applicable provisions of the Plan and this Agreement.
This Option is exercisable in a manner and pursuant to such procedures as the
Committee may determine. No Shares shall be issued pursuant to the exercise of
this Option unless such issuance and exercise complies with applicable
laws.  Assuming such compliance, for
income tax purposes, the Shares shall be considered transferred to the
Participant on the date the Option is exercised with respect to such
Shares.    Notwithstanding anything to
the contrary in this Agreement or anywhere else, the Option shall not be
exercisable after the Option Expiration Date.


 


(b)                                 Payment of the
aggregate Exercise Price and any applicable tax withholding obligation shall be
by any of the following, or a combination thereof, at the election of the
Participant:  (i) cash; or
(ii) check; or (iii) consideration received by the Company using a
Cashless Exercise; or (iv) with the Committee’s consent, consideration
received by the Company through a Net Exercise; or (v) with the Committee’s
consent, surrender of other Shares, provided that such Shares in the case of
Shares acquired from the Company, have been vested and owned by the Participant
for more than six (6) months on the date of surrender.  Utilization of the methods described in
clauses (iii), (iv) and (v) shall in all cases be subject to the
Company’s Special Trading Policy and Procedures and the Addendum thereto.


 


(c)                                  The sale of
Shares received from the exercise of the Option may at the Company’s discretion
be delayed in order to restrict sale of the Shares received from the exercise
of an Option during any period in which trading in the Company’s securities is
restricted under the Company’s Special Trading Policy and Procedures or
otherwise as required under applicable securities’ laws.


 


(d)                                 The sale of
Shares received from the exercise of an Option may at the Company’s discretion
be delayed if in the Company’s judgment trading market conditions would be
adversely impacted by the exercise and sale of such Shares.  The Company may also at its discretion place
any reasonable restrictions or conditions on the sale of Shares received upon
exercise of the Option as it believes would be in the best interests of the trading
market for the Company’s securities.


 


Section 5. 
Termination of Option.  (a) The
term of the Option shall commence on the Date of Grant and expire on the
earlier of (i) the Option Expiration Date set forth above, (ii) the
eight (8) year anniversary of the Date of Grant; or (iii) if Participant’s
Service is terminated, and such termination of Service occurs by reason of (A) death
or Disability, twelve (12) months from the death or Disability Termination
Date; (B) Retirement, twelve (12) months from the Retirement Termination
Date, provided, however, that such twelve (12)
month period shall instead be thirty-six (36) months if the Participant has
completed at least twenty (20) continuous years of Service as of the
Termination Date; or (C) other than for Retirement, death or Disability,
or Cause, three (3) months from the Termination Date. Notwithstanding the
above, if Participant’s termination of Service occurs by reason of Cause,
neither the Participant nor the Participant’s estate nor such other person who
may then hold the Option shall be entitled to exercise such Option on or after
the Termination Date.


 


(b) In accordance with Plan section 4(g), to
the extent that during the entire last two (2) weeks prior to the
termination of a vested, in-the-money Option due to the Participant’s termination
of Service for any reason other than by the Company for Cause, a sale of Shares
underlying such Option would violate Section 16(b) of the Exchange
Act or would otherwise be prohibited by Company policy or applicable law or
regulations, then such Options shall instead remain exercisable for two (2) weeks
after the first business day that all such prohibitions to sale are no longer
applicable (subject in all cases to the term of the Option as set forth in Section 5
above).


 


(c)                                  Notwithstanding
anything to the contrary in this Agreement or anywhere else, the Option shall
not be exercisable after the Option Expiration Date.


 


Section 6. 
Restricted Shares and Forfeiture. 
The unvested portion of the Restricted Shares is subject to
forfeiture.  Except as provided in this
Agreement, in order to vest in and not forfeit the Restricted Shares, the
Participant must remain in Service until the applicable Restricted Shares
Vesting Date (as such date may be accelerated pursuant to Section 7 below)
and until the Restricted Shares Vesting Date the Participant may not transfer
(within the meaning described in Section 8) any unvested Restricted Shares
(“Restrictions”).


 













 


Section 7. 
Vesting Date; Lapse of Restrictions.


 


Except
as otherwise provided in the Plan or this Agreement, the Option Vesting Date
and/or the Restricted Shares Vesting Date shall occur as follows:


 


(a)                                 The Option, or
portion thereof, shall be exercisable on an applicable Option Vesting Date (as
such date may be accelerated pursuant to this Section 7 below) provided the Participant is in Service and in good standing
on the applicable Vesting Date. 
Notwithstanding the foregoing, in the event of Participant’s death or
Disability, the portion of the Option that would have otherwise vested during
the period beginning on the date of such death or the Termination Date due to
such Disability and ending on the date that is twenty-four (24) months
thereafter shall vest as of the date of the Participant’s death or the
Termination Date due to such Disability.


 


(b)                                 The
Restrictions on the Restricted Shares shall lapse on the Restricted Shares
Vesting Date; provided, however, that except as
provided in this Section 7 below (or Plan Sections 3(b)(iv) or 12))
in no event shall the Restrictions on Restricted Shares lapse prior to one (1) year
from the Date of Grant.  Notwithstanding
the foregoing, and in accordance with Plan Section 3(b)(iv), in the event
of Participant’s death or Disability, the Restrictions that would have
otherwise lapsed during the period beginning on the date of such death or
Termination Date due to such Disability and ending on the date that is
twenty-four (24) months thereafter shall lapse as of the date of the
Participant’s death or the Termination Date due to such Disability.


 


(c)                                  In the event
that a Change in Control occurs and there is no assumption or continuation of
some or all outstanding Awards pursuant to Plan Section 12(a), then as to
those Awards that are not assumed or continued under Plan Section 12(a),
the Option shall fully vested and become exercisable with respect to all Option
Shares issued hereunder and the Restrictions on the Restricted Shares awarded
hereunder shall lapse and the Restricted Shares shall become fully vested, as
of immediately before such Change in Control. Pursuant to Plan Section 12(b),
Participant shall be given written notice at least thirty (30) days prior to
the consummation of such Change in Control that the Awards that are not assumed
or continued under Plan Section 12(a) will be canceled as of the
Change in Control. In the event a Change in Control occurs and (i) the
acquiring entity assumes or continues some or all outstanding Awards pursuant
to Plan Section 12(a), (ii) within eighteen (18) months thereafter an
event occurs which constitutes a “Constructive Termination” (as defined under
Participant’s written employment agreement with the Company, if any), and (iii) Participant’s
terminates from Service, then with respect to the Awards  issued hereunder that are so assumed or
continued, the Option shall fully vest and become exercisable, and the
Restrictions on the Restricted Shares shall lapse and the Restricted Shares
shall become fully vested, only as to those Awards that would have otherwise
vested during the period beginning on the Termination Date and ending on the
date that is twenty-four (24) months thereafter had such termination from
Service not occurred.


 


(d)                                 The provisions
of this Section 7 are subject to the specific terms of any written
employment agreement between the Participant and the Company, which agreement
may provide for the acceleration of the Vesting Date of Options or the removal
of Restrictions and acceleration of the Restricted Shares Vesting Date upon the
occurrence of specified events.  If the conditions
under such employment agreement occur for the acceleration of the Vesting Date
of Options or the removal of Restrictions and acceleration of the Restricted
Shares Vesting Date, then notwithstanding anything to the contrary in this
Agreement, the Option shall become exercisable and fully vested with respect to
all Option Shares granted hereunder and the Restrictions on the Restricted
Shares awarded hereunder shall lapse and the Restricted Shares shall become
fully vested as of the date required under such employment agreement, except in
no event shall acceleration of any Restricted Shares result in the lapse of the
Restrictions prior to one (1) year from the Date of Grant (except as
permitted under Plan sections 3(b)(iv) or 12)).


 


Section 8. 
Restrictions on Transfer.


 


(a)                                 The Option may
not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed
of, alienated or encumbered (collectively, a “Transfer”) in any way by
Participant, either voluntarily or involuntarily, and may be exercised during
the lifetime of Participant only by Participant, or in the event of Participant’s
legal incapacity, by Participant’s guardian or legal representative acting in a
fiduciary capacity on behalf of Participant under state law.  If Participant dies, the Option shall
thereafter be exercisable as provided above and in the Plan.  The Option shall not be subject to execution,
attachment or similar process other than pursuant to a QDRO.


 


(b)                                 Prior to the
time that the Restrictions have lapsed with respect to Restricted Shares,
neither the Restricted Shares, nor any interest therein, or amount payable in
respect thereof may be Transferred in any way, either voluntarily or
involuntarily.  The Transfer restrictions
in the preceding sentence shall not apply to: (i) transfers to the
Company; (ii) transfers by will or the laws of descent and distribution;
or (iii) transfers pursuant to a QDRO. 
Upon and after the time any Restrictions shall have lapsed, Participant
shall be permitted to transfer the Shares as to which the Restrictions have
lapsed subject to applicable securities law requirements, the Company’s Special
Trading Policy and Procedures, and any other applicable laws or regulations.


 













 


(c)                                  The Holdback
Shares or any interest therein or amount payable in respect thereof may not be
Transferred in any way, either voluntary or involuntary, before the earlier of
(i) nine (9) months from the date of exercise of the Option for which
such Shares were issued, or (ii) the Participant’s termination of
employment as an officer appointed by the Board or as a member of the Board,
(whichever shall occur later) for any reason including death, Disability,
illness, resignation, Retirement, or other reason (“Holdback Period”).  Participant shall be entitled to dividends
and any voting rights with respect to Holdback Shares even though the Holdback
Period has not lapsed.


 


(d)                                 If the Board
makes any adjustment pursuant to Section 11 of the Plan and the Holdback
Period has not lapsed as to the Holdback Shares prior to such adjustment, the
remaining time period of Holdback Period shall be applicable to any additional
Shares resulting from such adjustment.


 


(e)                                  Any attempted
Transfer of the Option or Restricted Shares or Holdback Shares contrary to the
provisions hereof, and the levy of any execution, attachment or similar process
upon the Option or Restricted Shares or Holdback Shares, except pursuant to a
QDRO, shall be null and void and without effect.


 


Section 9.                                           Award Subject
to Clawback Policy.  In
accordance with Section 13(d) of the Plan, the Company may (i) cause
the cancellation of all or any portion of this Award, (ii) require
reimbursement of all or any portion of this Award by the Participant and (iii) effect
any other right of recoupment of equity or other compensation provided under
the Plan or otherwise in accordance with Company policies and/or applicable law
(each, a “Clawback Policy”) in effect as of the Date of Grant of this Award.


 


Section 10. 
Designation of Beneficiary. 
Participant may designate one or more beneficiaries with respect to this
Award or any Awards made under the Plan by timely filing the prescribed
beneficiary designation form with the Company. 
A beneficiary designation may be changed by filing the prescribed form
with the Company at any time prior to the Participant’s death.  If no beneficiary was designated or if no
designated beneficiary survives the Participant, then after a Participant’s
death any vested portion of the Award shall be transferred or distributed to
the Participant’s estate.


 


Section 11. Stock Certificates For Restricted
Shares.


 


(a)                                 If Restricted
Shares are awarded under this Agreement, the Company shall issue such
Restricted Shares subject to this grant either: (i) in certificate form as
provided below; or (ii) in book entry form, registered in the name of
Participant with notations regarding the applicable restrictions on transfer
imposed under this Agreement.


 


Any
certificates representing Restricted Shares that may be delivered to
Participant by the Company prior to the lapse of the Restrictions shall be
promptly redelivered to the Company to be held by the Company until the
Restrictions on such Shares shall have lapsed and the Shares shall thereby have
become transferable or the Shares represented thereby have been forfeited
hereunder.  Such certificates shall bear
the following legend:


 


“The ownership of this certificate and the shares of stock evidenced
hereby and any interest therein is subject to substantial restrictions on
transfer under an Agreement entered into between the registered owner and The
Cheesecake Factory Incorporated.  A copy
of such Agreement is on file in the office of the Secretary of The Cheesecake
Factory Incorporated.”


 


(b)                                 After the lapse
of the Restrictions with respect to any of the Restricted Shares, the Company
shall, as applicable, either remove the notations on any of the Restricted
Shares issued in book entry form as to which the Restrictions have lapsed or
deliver to Participant a certificate or certificates evidencing the number of
Restricted Shares as to which the Restrictions have lapsed.  Participant (or the beneficiary or personal
representative of Participant in the event of Participant’s death or
Disability, as the case may be) shall deliver to the Company any
representations or other documents or assurances required in accordance with
the Plan.  The Shares so delivered shall
no longer be Restricted Shares.


 


(c)                                  If Restricted
Shares are awarded under this Agreement, concurrently with the execution and
delivery of this Agreement, Participant shall deliver to the Company an executed
Stock Power and Assignment Separate from Certificate in the form attached
hereto as Exhibit A, in blank, with respect to such Shares.  Participant, by acceptance of the grant of
Restricted Shares, shall be deemed to appoint, and does so appoint by execution
of this Agreement, the Company and each of its authorized representatives as
Participant’s attorney(s) in fact to effect any transfer of forfeited
Shares (or Shares otherwise reacquired or withheld by the Company hereunder) to
the Company as may be required pursuant to the Plan or this Agreement and to
execute such documents as the Company or such representatives deem necessary or
advisable in connection with any such transfer.


 













 


Section 12. 
Stock Certificates For Holdback Shares.


 


(a)                                 If Holdback Shares
are issued under this Agreement, the Company shall issue the Holdback Shares
either: (i) in certificate form as provided below; or (ii) in book
entry form, registered in the name of Participant with notations regarding the
applicable restrictions on transfer imposed under this Agreement.


 


Any
certificates representing Shares of Holdback Shares that may be issued to
Participant by the Company prior to the lapse of the Holdback Period shall be
promptly redelivered to the Company to be held by the Company until the
Holdback Period on such Shares shall have lapsed and the Shares shall thereby
have become transferable.  Such
certificates shall bear the following legend:


 


“The ownership of this certificate and the shares of stock evidenced
hereby and any interest therein is subject to substantial restrictions on
transfer under an Agreement entered into between the registered owner and The
Cheesecake Factory Incorporated.  A copy
of such Agreement is on file in the office of the Secretary of The Cheesecake
Factory Incorporated.”


 


(b)                                 After the lapse
of the Holdback Period with respect to any of the Holdback Shares, the Company
shall, as applicable, either remove the notations on any of the Holdback Shares
issued in book entry form as to which the Holdback Period have lapsed or
deliver to Participant a certificate or certificates evidencing the number of
Holdback Shares as to which the Holdback Period have lapsed.  Participant (or the beneficiary or personal
representative of Participant in the event of Participant’s death or
Disability, as the case may be) shall deliver to the Company any
representations or other documents or assurances required in accordance with
the Plan.  The Shares so delivered shall
no longer be Holdback Shares.


 


Section 13. 
Dividend and Voting Rights For Restricted Shares.  After the Date of Grant, Participant shall be
entitled to voting rights with respect to the Restricted Shares even though the
Restrictions have not lapsed, provided that such rights shall terminate
immediately as to any Restricted Shares that are forfeited pursuant to this
Agreement.  If any dividends are declared
and paid on Shares, then such dividends (whether in the form of cash or Shares)
shall be subject to the same vesting conditions and restrictions as the
Restricted Shares with respect to which the dividends were paid and Participant
shall not be entitled to receive any such dividends until the Restrictions have
lapsed.  If the Board makes any
adjustment pursuant to Section 11 of the Plan and the Restrictions have not
lapsed as to the Restricted Shares prior to such adjustment, the Restrictions
and forfeiture provisions of this Agreement shall be applicable to any
additional Shares resulting from such adjustment to the same extent as the
Restrictions and forfeiture provisions of this Agreement and forfeiture
provisions of this Agreement applicable to the Restricted Shares to which the
additional Shares relate.


 


Section 14. 
No Tax or Other Advice from Company.  The Company has not provided any tax, legal
or financial advice to Participant, and the Company has not made any
recommendations regarding Participant’s participation in the Plan or
Participant’s acquisition or sale of the underlying Shares.  Participant is hereby advised to consult with
Participant’s own personal tax, legal and financial advisors regarding
Participant’s participation in the Plan before taking any action related to the
Plan or this Agreement.


 


Section 15. Tax Withholding.  The Company in its discretion shall be
entitled to require a cash payment by or on behalf of Participant and/or deduct
from other compensation payable to Participant any sums required by federal,
state, local or foreign tax law or regulation to be withheld with respect to
the lapsing of any Restrictions.  If
Participant makes the election permitted by Section 83(b) of the Code
to include in such Participant’s gross income in the year of transfer the
amounts specified in Section 83(b) of the Code, then Participant
shall notify the Company of such election within 10 days after filing the
notice of the election with the Internal Revenue Service.  PARTICIPANT ACKNOWLEDGES THAT IT IS
PARTICIPANT’S SOLE RESPONSIBILITY, AND NOT THE COMPANY’S, TO FILE A TIMELY
ELECTION UNDER CODE SECTION 83(B), EVEN IF PARTICIPANT REQUESTS THE
COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON PARTICIPANT’S
BEHALF.  MOREOVER, PARTICIPANT IS RELYING
SOLELY ON PARTICIPANT’S OWN ADVISORS WITH RESPECT TO THE DECISION AS TO WHETHER
OR NOT TO FILE A CODE SECTION 83(B) ELECTION.


 


Section 16. 
Notices.  All notices,
claims, certificates, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given and delivered
if personally delivered or if sent by nationally-recognized overnight courier,
by telecopy, or by registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:


 


(a)                                 if to the
Company:


 


The Cheesecake Factory Incorporated


26901 Malibu Hills Road


Calabasas Hills, California 
91301


Attention:  General Counsel


 













 


If to the Company, to exercise an Option:


 


The Cheesecake Factory Incorporated


26901 Malibu Hills Road


Calabasas Hills, California 
91301


Attn: Stock Plan Administrator


 


(b)                                 if to
Participant:


 


The last address set forth in the Company’s records


 


or
to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith.  Any such notice or communication shall be
deemed to have been received (i) in the case of personal delivery, on the
date of such delivery (or if such date is not a business day, on the next
business day after the date of delivery), (ii) in the case of nationally
recognized overnight courier, on the next business day after the date sent, (iii) in
the case of telecopy transmission, when received (or if not sent on a business
day, on the next business day after the date sent), and (iv) in the case
of mailing, on the third business day following that date on which the piece of
mail containing such communication is posted.


 


Section 17. 
Waiver of Breach.  The
waiver by either party of a breach of any provision of this Agreement must be
in writing and shall not operate or be construed as a waiver of any other or
subsequent breach.


 


Section 18. 
Participant’s Undertaking. 
Participant hereby agrees to take whatever additional actions and
execute whatever additional documents the Company may in its reasonable
judgment deem necessary or advisable in order to carry out or affect one or
more of the obligations or restrictions imposed on Participant pursuant to the
express provisions of this Agreement and the Plan.


 


Section 19. 
Modification of Rights. 
The rights of Participant are subject to modification and termination in
certain events as provided in this Agreement and the Plan.


 


Section 20. 
Governing Law.  THIS
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING
PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE
APPLIED.  IN FURTHERANCE OF THE
FOREGOING, THE INTERNAL LAW OF THE STATE OF DELAWARE WILL CONTROL THE
INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH
JURISDICTION’S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW
OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.


 


Section 21. 
Resolution of Disputes.


 


(a)                                 Arbitration. Any dispute,
controversy or claim arising out of or relating to this Agreement or the Plan
shall be settled by binding arbitration held in Los Angeles, California, in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect, except as specifically otherwise
provided in this Section 20.  This Section 20
shall be construed and enforced in accordance with the Federal Arbitration Act,
notwithstanding any other choice of law provision in this Agreement.  Notwithstanding the foregoing:


 


Any
party hereto may, in its discretion, apply to a court of competent jurisdiction
for equitable relief.  Such an
application shall not be deemed a waiver of the right to compel arbitration
pursuant to this Section.


 


(b)                                 Arbitrators. The panel to
be appointed shall consist of three neutral arbitrators:  one selected by the Company, one selected by
the Participant, and one selected by the designees of the Company and
Participant.


 


(c)                                  Procedures.  The arbitrator(s) shall allow such
discovery as the arbitrator(s) determine appropriate under the circumstances
and shall resolve the dispute as expeditiously as practicable, and if
reasonably practicable, within one hundred twenty (120) days after the
selection of the arbitrator(s).  The
arbitrator(s) 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 ten (10) days
after the decision.


 













 


(d)                                 Authority.  The arbitrator(s) shall have authority
to award relief under legal or equitable principles, including interim or
preliminary relief, and to allocate responsibility for the costs of the
arbitration and to award recovery of attorneys’ fees and expenses in such
manner as is determined to be appropriate by the arbitrator(s).


 


(e)                                  Entry of
Judgment.  Judgment
upon the award rendered by the arbitrator(s) may be entered in any court
having in personam and subject matter jurisdiction.  Company and Participant hereby submit to the
in personam jurisdiction of the Federal and State courts in Los Angeles,
California, for the purpose of confirming any such award and entering judgment
thereon.


 


(f)                                   Confidentiality.  All proceedings under this Section 20,
and all evidence given or discovered pursuant hereto, shall be maintained in confidence
by all parties and by the arbitrators.


 


(g)                                  Continued
Performance.  The fact
that the dispute resolution procedures specified in this Section 20 shall
have been or may be invoked shall not excuse any party from performing its
obligations under this Agreement and during the pendency of any such procedure
all parties shall continue to perform their respective obligations in good
faith.


 


(h)                                 Tolling.  All applicable statutes of limitation shall
be tolled while the procedures specified in this Section 20 are
pending.  The parties will take such
action, if any, required to effectuate such tolling.


 


(i)                                     Confidentiality.  All proceedings under this Section, and all
evidence given or discovered pursuant hereto, shall be maintained in confidence
by all parties and by the arbitrators.


 


Section 22. 
No Employment Commitment by Company; No Effect on Employment
Agreements.  Nothing in this
Agreement or the Plan constitutes an employment commitment by the Company,
affects Participant’s status under any employment agreement between the Company
and Participant, confers upon Participant any right to remain employed by the
Company or any subsidiary, interferes in any way with the right of the Company
or any subsidiary at any time to terminate such employment, or affects the
right of the Company or any subsidiary to increase or decrease Participant’s
compensation or other benefits.  The
preceding sentence is subject, however, to the terms of any written employment
agreement between Participant and the Company (which may not be modified by any
oral agreement). Notwithstanding anything to the contrary in this Agreement, in
the event of a conflict between this Agreement and any written employment
agreement between Participant and the Company, the written employment agreement
shall control provided, however, that if this Agreement provides for earlier
vesting schedules, or for the earlier acceleration of vesting of any Option or
lapse of Restrictions with respect to Restricted Shares upon the occurrence of
specified events, than this Agreement shall control as to such earlier vesting
schedule or earlier acceleration of vesting or lapse of Restrictions upon the
occurrence such specified events.


 


Section 23. 
Counterparts.  This
Agreement may be executed in one or more counterparts, and each such
counterpart shall be deemed to be an original, but all such counterparts
together shall constitute but one agreement.


 


Section 24. 
Entire Agreement.  This
Agreement and the Plan (and the other writings referred to herein) constitute
the entire agreement between the parties with respect to the subject matter
hereof and thereof and supersede all prior written or oral negotiations,
commitments, representations and agreements with respect thereto.


 


Section 25. 
Severability.  If any
provision of this Agreement is found to be invalid or unenforceable, the
invalidity or unenforceability shall not affect the validity of the remaining
provisions hereof.  Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall be so
narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.


 













 


Section 26. 
Compliance with Section 409A of the Code.  The Option and/or the Restricted Shares
awarded under this Agreement, as the case may be, are intended in all respects
not to subject the Participant to taxation under Section 409A of the
Code.  To the extent applicable, this
Agreement shall be interpreted in accordance with Section 409A of the Code
and Department of Treasury regulations and other interpretive guidance issued
thereunder, including without limitation, any such regulations or guidance that
may be issued after the Date of Grant so that neither the Option nor any
Restricted Shares will be subject to Code Section 409A.  In the event that the Company determines that
any amounts will be taxable to Participant under Section 409A of the Code
and related Department of Treasury guidance, the Company may, in its sole and
absolute discretion, adopt such amendments to this Agreement (having
prospective or retroactive effect), and/or take such other actions, as the
Company determines to be necessary or appropriate to avoid the application of Section 409A
of the Code to such Option or Restricted Shares.  No such amendment or other action shall be
adopted or taken that will cause the Option and/or the Restricted Shares to be
subject to Section 409A.


 


	
   

  	
  THE
  CHEESECAKE FACTORY INCORPORATED,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name
  and title:

  	
   

  	
   

  
	
   

  	
  Its
  Authorized Officer

  
					



 













 


BY
EXECUTION BELOW I ACCEPT ALL TERMS AND CONDITIONS OF THE NOTICE OF GRANT AND
THE OTHER DOCUMENTS REFERENCED HEREIN


 


	
   

  	
  PARTICIPANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Signature)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Print
  Name)

  
	
   

  	
   

  
	
   

  	
  Address
  for Notice:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


(Please execute and return this Notice of Grant to the Company’s Stock
Plan Administrator

at the address above; keep a copy for your records)


 


Attachments:


 


·                  Exhibit A –
Stock Power (Attached only if Restricted Shares are awarded)


·                  2010 Stock
Incentive Plan Summary and Prospectus


·                  Special Trading
Policy and Procedures


·                  Addendum To
Special Trading Policy and Procedures for Section 16 Persons


·                  SEC Filing List
(prospectus supplement)


·                  Designation of
Beneficiary(ies) Form


 













 


EXHIBIT A


 


STOCK
POWER AND


 


ASSIGNMENT
SEPARATE FROM CERTIFICATE


 


FOR
VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto                                                                                                                                    
(                       )
shares of the Common Stock, $0.01 par value per share, of The Cheesecake
Factory Incorporated, a Delaware corporation (the “Company”), standing in the
name of                                        
on the books of the Company represented by Certificate No.              
herewith and does hereby irrevocably constitute and appoint                                                                                            
attorney to transfer the said stock on the books of the Company with full power
of substitution in the premises.


 


	
  Dated

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed
  Name