The Cheesecake Factory Inc.





	


EXHIBIT 10.13 



THE CHEESECAKE FACTORY
INCORPORATED 



Peter J. D’Amelio Employment
Contract 



AGREEMENT 



        This
AGREEMENT (the “Agreement”) is entered into this 29th day of August, 2001
between THE CHEESECAKE FACTORY INCORPORATED (the “Company”) and Peter J.
D’Amelio (“Executive”). 



        WHEREAS,
the parties desire to enter into this Agreement setting forth certain terms and conditions
of the employment relationship of Executive with 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 Executive hereby agree
as follows: 



              1.
        Employment. 



Executive is employed as the Senior
Vice President of Restaurant Operations of the Company. In this capacity, Executive shall
have such duties and responsibilities as may be designated to Executive by Chief Executive
Officer of the Company from time to time. Executive shall devote substantially all
Executive’s time, attention and energies to the business and affairs of the Company
and its subsidiaries. 



              2.
        Term. 



Subject to Section 4(a) below), the
“Term” of this Agreement shall be for the period commencing on the date hereof
and ending on the later of (a) the third anniversary of the date hereof; or (b) if a
Change of Control occurs during the Term, then that date which is twenty-four (24) months
following the date of the Change of Control. 



              3.
        Certain Terms Defined. 



For purposes of this
Agreement: 



                (a)
Executive shall be deemed to be “Permanently Disabled” if a physical
          or mental condition occurs and persists which, in the written opinion of a
          licensed physician selected by Executive, or at the option of the Company in
the           event of a dispute as to whether or not Executive is Permanently Disabled,
          selected by the Board of Directors of the Company, in good faith, has rendered
          Executive unable to perform Executive’s duties hereunder for a period of
          ninety (90) days or more 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 Executive unable to return to Executive’s
          duties.  



                (b)  “Affiliate” means
any corporation affiliated with any Person whose           actions result in a Change of
Control (or which, as a result of the completion           of the transactions causing a
Change of Control shall become affiliated) within           the meaning of the Code.  



                (c) “Base
Salary” means, as of the Date of Termination, the highest annual           base
salary of Executive in any of the last two fiscal years preceding the           fiscal
year of such Date of Termination.  



                      (d)
        “Beneficial Owner” shall have the meaning given to such term
        in the Exchange Act. 







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                (e) “Cause” means
termination upon: (i) the failure or refusal by           Executive to substantially
perform Executive’s duties with the Company           (other than any such failure
resulting from Executive’s incapacity due to           physical or mental illness or
disability); (ii) the occurrence of Executive           misconduct that constitutes a
material breach of the Company’s Code of           Ethics and Code of Conduct,
including without limitation, an unauthorized           disclosure or use of insider
information, customer lists, recipes, processes,           trade secrets or other
confidential or proprietary information, or solicitation           of any of the Company’s
agents or employees to work for another business           entity, or any other
misconduct that is materially injurious to the Company,           monetarily or
otherwise; or (iii) Executive’s commission of acts of           dishonesty, theft,
embezzlement, fraud, or misrepresentation, or commission of           such other acts of
moral turpitude as would reasonable prevent or significantly           diminish the
effective performance of Executive’s duties.  




                (f)
  A “Change of Control” occurs:  



                        (i)   if
any Person (other than Executive) or that Person’s Affiliate is or           becomes
the Beneficial Owner, directly or indirectly, of securities of the           Company
representing 20% of more of the combined voting power of the           Company’s
then outstanding voting securities (“Voting           Securities”) after the
commencement date of this Agreement; or




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



                                I.  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 80% of the combined voting power of the Voting
          Securities of the Company or such surviving entity outstanding immediately
after           such merger or consolidation;  



                                II. a
merger or consolidation effected to implement a re-capitalization of the
          Company (or similar transaction) in which no Person acquires more than 20% of
          the combined voting power of the Company’s then outstanding Voting
          Securities; or  



                                III. a
merger or consolidation which 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 paragraph (iv), “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           were directors of the Company at the beginning of the 24
consecutive month           period preceding the date of such merger or consolidation.  



                        (iii) upon
the consummation of a plan of complete liquidation or a sale or disposition           of
all or substantially all of the Company’s assets; or  



                        (iv)    if,
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.  



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



                (h)      “Date
of Termination” means the date of actual receipt of a written           notice of
termination or any later date specified therein (but not more than           fifteen (15)
days after the date of giving such notice), as the case may be;           provided that
(i) if Executive’s employment is terminated by the Company           for any reason
other than for Cause, the Date of Termination is the date on           which the Company
notifies Executive of such termination; (ii) if the           Executive’s employment
is terminated by the Executive with Good Reason or           otherwise, the date of
termination is the date the Executive notifies the           Company of such termination;
(iii) if Executive’s employment is terminated           due to Permanent Disability,
the Date of Termination is the date of receipt of           such notice; and (iv) if
Executive’s employment is terminated due to           Executive’s death, the
Date of Termination shall be the date of death.  






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



                (j)    “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 Executive 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.  



                (k)  “Voluntary
Termination with Good Reason” means an election by           Executive to terminate
employment with the Company following a Change of           Control, provided that (i)one
or more of the following factors occurs within the           twelve (12) month period
prior to the Date of Termination, and (ii) Executive is           in Good Standing as of
the Date of Termination:  



                        I. The
annual base salary payable to Executive at the time of termination has
          decreased by tenpercent (10%) or more from the average annual base salary
          payable to Executive during the twelve (12) month period prior to the Change in
          Control.  



                        II.      Executive’s
ability to participate, on an equal basis with other employees           of the Company
holding equivalent positions in the Company, in any Company stock           option, stock
equity or bonus plan which is then in effect has been terminated.  



                        III.    The
Company has demoted Executive to a position at the Company which is one or           more
grades lower than the position Executive held prior to the Change of           Control
(e.g., Senior Vice-President to Vice President; Vice-President to           Director).  



                              IV.
        The designated permanent location of Executive’s workplace is transferred
        by the Company to a location exceeding 60 miles from Executive’s
        permanent workplace location immediately prior to the Change of Control.
        



                (l)  “Not
in Good Standing” with reference to Executive means that (i) the           Company
has commenced and is diligently pursuing to conclusion, an investigation           of
Executive with respect to any matter which, if found by the Company to be           true,
would be grounds for termination for Cause of Executive, or (ii) the           Company,
upon the conclusion of any investigation referenced in clause (i) of           this
Section has determined that reasonable grounds exist to terminate Executive           or
take other serious disciplinary action. If, upon the conclusion of any
          investigation under clause (i), the Company has not determined that reasonable
          grounds exist to terminate Executive or take other serious disciplinary action,
          then Executive shall be deemed to be in Good Standing as to such matter.  



              4.
        Termination. 



                      (a)
        For Cause or Not in Good Standing. This Agreement shall terminate
        automatically upon a termination of Executive’s employment with the
        Company for Cause, or upon Executive’s death or Permanent Disability,
        or upon the conclusion of an investigation referenced in Section 3(l)
        above and a determination by the Company, in good faith, that Executive
        is Not in Good Standing. 



                      (b)
        At Will Employment. Nothing in this Agreement shall alter the “at
        will” employment relationship between the Company and Executive,
        and either the Company or Executive may terminate Executive’s employment
        at any time and for any reason, or no reason at all, with or without Cause
        and regardless if Executive is Not in Good Standing or in Good Standing.
        






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              5.
        Certain Benefits Upon Voluntary Termination for Good Reason; Involuntary
        Termination without Cause; and Change of Control.  



                (a)  If,
other than a termination due to death or Permanent Disability,           Executive’s
employment with the Company is (i) terminated by Executive due           to a Voluntary
Termination for Good Reason occurring no sooner than six (6)           months and no
later than twenty-four (24) months from the date of a Change in           Control, or
(ii) terminated by the Company without Cause on or before           twenty-four (24)
months after the date of a Change in Control, and on the Date           of Termination
Executive is in Good Standing, then:  



                              I.
        the Company shall pay to Executive a lump sum cash payment, within thirty
        (30) days of the Date of Termination, equal to one-half of Executive’s
        annual Base Salary; and 



                              II.
        the Company shall pay all costs and expenses necessary to continue any
        coverages provided to Executive and Executive’s dependents immediately
        prior to the Date of Termination under any health or dental insurance,
        life insurance, and long term disability insurance plan (which obligation
        may be satisfied, at Company’s election, by paying Executive’s
        contribution under COBRA to the extent such coverages are insurable under
        COBRA), for a period not to exceed the earlier of twelve (12) months from
        the date of termination or the date Executive becomes eligible for similar
        benefits under any subsequent employer’s plan. 



                      (b)
        If Executive’s employment with the Company is (i) terminated by Executive
        due to a Voluntary Termination for Good Reason occurring no sooner than
        six (6) months and no later than twenty-four (24) months from the date
        of a Change in Control, or (ii) terminated by the Company without Cause
        on or before twenty-four (24) months after the date of a Change in Control
        (including a termination due to death or Permanent
        Disability), and Executive is in Good Standing on the Date of Termination,
        then the Company shall pay to Executive, if, as and when such payment
        may be made to other employees participating in the Company’s Performance
        Incentive Plan or any other bonus or incentive plan (other than a stock
        option or stock equity plan) then in effect for employees in a similar
        positions as Executive as of the Date of Termination (or as of the date
        of demotion, if a Voluntary Termination for Good Reason occurs due to
        the events described in Section 3(l)III above), a prorata portion of any
        bonus payable under such plan, calculated based upon the number of days
        Executive was employed by the Company in the fiscal year in which the
        termination occurs. 



                (c) Provided
Executive is then in Good Standing, upon the occurrence of (i) a Change           of
Control during the Term or (ii) Executive’s termination due to death or
          Permanent Disability, all then unvested stock options granted to Executive
prior           to and including the Company’s fiscal year 2000, if any, under the
1992           Employee Performance Stock Option Plan (the “Plans”) or the Year
2000           Performance Stock Option Plan, shall immediately vest, and shall be
exercisable           by Executive in accordance with the terms of the applicable stock
option           agreement.  



                (d) Provided
Executive is then in Good Standing, upon the occurrence of a Change of           Control,
all then unvested stock options granted to Executive during and after           the
Company’s fiscal year 2001, if any, under the Plans or under any other
          employee stock option or stock equity plan adopted after fiscal year 2000,
which           would have vested pursuant to Executive’s stock option agreement on
or           before that date which is 364 days from the date of the Change of Control,
shall           immediately vest, and shall be exercisable by Executive in accordance
with the           terms of the applicable stock option agreement.  



                (e)     The
provisions of Section 5(c) or 5 (d) above may be triggered only once, in the
          aggregate, during the Term of this Agreement, so that, for example, should a
          Change of Control occur and thereafter Executive is terminated due to a
          Permanent Disability, then Executive would be entitled to the benefits under
          such sections only once, upon the initial Change of Control. In addition,
          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 benefits provided for in
          this Section 5 above were triggered.  



                (f)    Any
payments provided for hereunder shall be paid net of any applicable           withholding
required under federal, state or local law. In the event that           Executive’s
employment terminates by reason of Executive’s death, all           benefits
provided in this Section 5 which are payable upon a termination due to           death
shall be paid to Executive’s estate or as Executive’s executor           shall
direct, but payment may be deferred until Executive’s executor or           personal
representative has been appointed and qualified pursuant to the laws in           effect
in Executive’s jurisdiction of residence at the time of           Executive’s
death.  






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              6.
        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 of 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 taken place. As used in this Agreement, “Company” shall
        mean the Company as hereinbefore 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 parties
          hereto and their respective successors, personal or legal representatives,
          executors, administrators, successors, heirs, distributees, devisees and
          legatees.  



              7.
        Additional Covenants of Executive.  



In consideration of this Agreement,
and in addition to Executive’s obligations under any other Company rule, policy or
procedure, Executive agrees to the following: 



               (a)  Noncompetition.
Executive agrees that during the Term of this Agreement,           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
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 shall not           be a violation of this
Agreement. It is further expressly agreed that the           Company will or would suffer
irreparable injury if 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           Executive further consents
and stipulates to the entry of such injunctive relief           in such a court
prohibiting Executive from competing with the Company or any           subsidiary or
affiliate of the Company in violation of this Agreement.  



                     (b)
        Anti-solicitation. Executive agrees that during the Term of this
        Agreement, and for a period of two (2) years thereafter, Executive will
        not (i) influence or attempt to influence 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, (ii) disparage the Company or its officers or
        directors during or after employment in an attempt to discredit the Company,
        its assets, and/or future growth, or (iii) recruit, solicit or encourage
        other employees of the Company to leave his/her employment at the Company.
        



              8.
        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: 





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	 	Company:	 	 	The
      Cheesecake Factory Incorporated	 	 
	 	 	 	 	26950 Agoura
      Road	 	 
	 	 	 	 	Calabasas,
      California 91301	 	 
	 	 	 	 	Attn: Chief
      Executive Officer	 	 
	 	 	 	 	 	 	 
	 	with a copy
      to:	 	 	The Cheesecake
      Factory Incorporated	 	 
	 	 	 	 	26950 Agoura
      Road	 	 
	 	 	 	 	Calabasas,
      California 91301	 	 
	 	 	 	 	Attn: General
      Counsel	 	 
	 	 	 	 	 	 	 
	 	Executive:	 	 	Mr. Peter
      J. D’Amelio	 	 
	 	 	 	 	___________________________	 	 
	 	 	 	 	___________________________	 	 






	






              9.
        Amendments or Additions.  



No amendment or additions to this
Agreement shall be binding unless in writing and signed by both parties hereto. Only the
Chief Executive Officer may bind the Company to any amendment or modification of this
Agreement. 



              10.
        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. 



              11.
        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. 



              12.
        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. 



              13.
        Arbitration.  



Any dispute, controversy or claim
arising out of or relating to this Agreement 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 13. This Section 13 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: 



                     (a)
        Equitable Relief. 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 Executive, and
        one selected by the designees of the Company and Grantee. 



                     (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. 






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                     (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 Grantee 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 13, and all
        evidence given or discovered pursuant hereto, shall be maintained in confidence
        by all parties and by the arbitrators. 



              14.
        Miscellaneous.  



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. All references to sections of the Exchange Act or
the Code shall be deemed also to refer to any successor provisions to such sections. 



              15.
        Governing Law.  



THIS AGREEMENT SHALL 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. 



              16.
        VENUE; WAIVER OF JURY TRIAL.  



IN THE EVENT OF ANY ACTION OR
PROCEEDING BETWEEN EXECUTIVE AND THE COMPANY OR ITS SUBSIDIARIES REGARDING THIS AGREEMENT,
THE PARTIES AGREE TO SUBMIT THE JURISDICTION OF THE STATE OR FEDERAL COURTS WITHIN THE
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AND AGREE THAT VENUE IN SUCH COURTS IS
ACCEPTABLE TO THE GRANTEE AND THE COMPANY BOTH PARTIES AND WAIVE THEIR RIGHTS TO CLAIM
FORUM NON CONVENIENS. EXECUTIVE AND THE COMPANY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A
TRIAL BY JURY. 



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






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	 		 COMPANY:



THE CHEESECAKE FACTORY INCORPORATED




By:  /s/ DAVID OVERTON

      ——————————————

      David Overton, Chief Executive Officer







	 		  EXECUTIVE:




By:  /s/ PETER J. D’AMELIO

      ——————————————

      Peter J. D’Amelio

      Position at Company:

      Senior Vice President, Restaurant Operations







	


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