Exhibit 10.34


 


FIRST AMENDMENT TO AMENDED AND RESTATED


THE CHEESECAKE FACTORY INCORPORATED EXECUTIVE
SAVINGS PLAN


 


This First Amendment to the amended and restated The Cheesecake Factory
Incorporated Executive Savings Plan (the “Plan”) is effective as of January 1,
2009.


 


A.            RECITALS


 


1.               The
Cheesecake Factory Incorporated, a Delaware corporation (“Company”) established
an unfunded deferred compensation plan, entitled “The Cheesecake Factory
Executive Savings Plan”, effective October 1, 1999 (the “1999 Plan”), to
provide supplemental retirement income benefits for a select group of
management who are considered highly compensated employees, through deferrals
of salary and bonuses, and through discretionary Company contributions. The
1999 Plan was amended by a First Amendment, effective December 1, 2000; a
Second Amendment, effective October 1, 2001; a Third Amendment, effective January 1,
2003; a Fourth Amendment, effective October 1, 2004; and a Fifth
Amendment, effective January 1, 2005.


 


2.               On
July 23, 2008, the Company amended and restated The Cheesecake Factory
Executive Savings Plan so that the provisions of Exhibit A to the Plan
would apply only to any elective deferrals and Company Contribution Amounts
contributed or vested on or before December 31, 2004 (“Plan A”) and that
the provisions of Exhibit B to the Plan would apply only to any elective
deferrals and Company Contribution Amounts contributed or vested on or after January 1,
2005 (“Plan B”).


 


3.               The
Company now desires to amend Plan B as follows: (i) to clarify that the
vested portion of Company Contributions may be included with Scheduled
Distributions and Unforeseeable Emergency Withdrawals; (ii) an Investment
Alternative designation filed by a Participant will become effective according
to rules adopted by the Committee; and, (iii) a Participant may not
elect to receive a Scheduled Distribution earlier than the second Plan Year
after the Plan Year to which such an election applies.


 


4.               All
capitalized terms used in this First Amendment shall have the meaning given
such term in the Plan


 


B.            AMENDMENT


 


Plan B is hereby amended as follows:


 


1.               The second sentence
of Section 3.3(b) of Plan B is deleted in its entirety and is
replaced with the following:


“A Participant may change an Investment Alternative designation made
under this Section 3.3 by filing an election on a form provided by the
Committee, which generally will become effective according to rules adopted
by the Committee.”


 


2.               Section 6.1(e)(1) of
Plan B is deleted in its entirety and is replaced with the following new Section 6.1(e)(1):


 


“(1)         The Committee may, pursuant to rules adopted
by it and applied in a uniform manner, pay all or any portion of the vested
portion of a Participant’s Deferral Account and/or Company Contribution Account
because of an Unforeseeable Emergency, to the extent permitted by Code Section 409A
regulations.”


 


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3.               The first sentence
of Section 6.3(a) of Plan B is deleted in its entirety and is
replaced with the following:


“A Participant may elect in accordance with this Section 6.3 to
have a portion of his or her Account paid on a Scheduled Distribution Date as
designated in the Participant’s Initial Election Period or during an Open
Enrollment Period in his or her Distribution Election for any Plan Year,
provided the Scheduled Distribution Date may not occur earlier than the second
Plan Year after the Plan Year to which such an election applies.”


 


4.               Section 6.3(b) is
added to Plan B, as follows:


 


“(b) Any provision of Section 6.3(a) to
the contrary notwithstanding, as of January 1, 2009, any Election to
receive a Scheduled Distribution, whether made prior to or subsequent to January 1,
2009, shall apply to both a Participant’s vested Company Contribution
Accounts and Deferral Accounts. The forgoing notwithstanding, Company
Contributions will not be included with any Scheduled Distribution made to an
Executive Officer who, prior to January 1, 2009, elected to receive such
Scheduled Distribution on an Election form that specified Company Contributions
may not be included with such Scheduled Distribution.”


 


Except as herein modified, all other terms and conditions of the Plan
shall remain in full force and effect.


 


IN WITNESS WHEREOF, the Company has caused this First Amendment to be
executed as of this 31st day of December, 2008.


 


 


	
   

  	
  The Cheesecake Factory Incorporated

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its: Executive Vice President

  



 


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