EXHIBIT
10.2


 


SECOND AMENDMENT
TO AMENDED AND RESTATED


THE CHEESECAKE
FACTORY INCORPORATED EXECUTIVE SAVINGS PLAN


 


This Second Amendment to
the amended and restated The Cheesecake Factory Incorporated Executive Savings
Plan (the “Second Amendment”) is effective April 1, 2010.


 


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 1999
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”). The
amended and restated 1999 Plan, collectively with  Plan A and Plan B, is hereafter referred to
as the “Restated Plan.”


 


3.     On January 1, 2009, the Company amended the Restated Plan
by the First Amendment to Amended and Restated The Cheesecake Factory
Incorporated Executive Saving Plan to provide the following with respect to
Plan B only: (i) clarification 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.     The Company now desires to further amend the Restated Plan as
follows: (i) so that requested changes made to Investment Alternatives
under Plan A and Plan B will become effective as soon as administratively
feasible following such request; and (ii) to clarify that an Unforeseeable
Emergency under Plan B shall mean an unforeseeable emergency within the meaning
of Treasury Regulation § 1.409A-3(i)(3).


 


5.     Unless if otherwise defined in this Second Amendment, all
capitalized terms shall have the meaning given such term in the Restated Plan.


 


6.     The Restated Plan as amended by this Second Amendment is
hereafter referred to as the “Plan.”


 


B.    AMENDMENT


 


I.                                         Plan A is hereby amended as follows:


 


1. The second paragraph
of Section 3.3(a) is deleted in its entirety and is replaced with the
following:


 


“In making the designation
pursuant to this Section 3.3, the Participant may specify that all or any
multiple of the aggregate of amounts deferred and Company Contribution Amounts
(in a whole-number percentage of at least 1%) be deemed to be invested in an
Investment Alternative. A Participant may change the designation made under
this Section 3.3 by filing an election, in the manner approved by the
Committee. Such change will be effective as soon as administratively feasible
following the day of such request.  Any
change of designation shall specify that all or any multiple of the aggregate
amounts covered by the designation being changed (in a whole-number percentage
if at least one percent (1%)) are deemed to be invested in another Investment
Alternative. If a Participant fails to elect an Investment Alternative under
this Section 3.3, he or she shall be deemed to have elected an Investment
Alternative designated by the Committee on the Investment Alternative
designation form 


 













 


provided to the
Participant. The Committee may adopt such further rules applicable to a
Participant’s designation or change of designation of Investment Alternatives.”


 


II.                                     Plan B is hereby amended as follows:


 


1.               Section 1.2(qq) is deleted in its
entirety and is replaced with the following new Section 1.2(qq):


 


“(qq)
Unforeseeable Emergency shall mean an “unforeseeable emergency” within the
meaning of Treasury Regulation § 1.409A-3(i)(3).”


 


2.               Section 3.3(b) is deleted in
its entirety and is replaced with the following new Section 3.3(b):


 


“In making the
designation pursuant to Section 3.3(a), the Participant may specify that
all or any multiple of the aggregate of Salary, Bonus and/or Director’s Fees
deferred and Company Contribution, if any, (in a whole-number percentage of at
least 1%) be deemed to be invested in an Investment Alternative.  A Participant may change the Investment
Alternatives designation made under this Section 3.3 by requesting a
change with the Plan Administrator, in the manner approved by the Plan
Administrator. Such change will be effective as soon as administratively
feasible following the day of such request. Any change of Investment
Alternatives designation shall specify that all or any multiple of the
aggregate amounts covered by the designation being changed (in a whole-number
percentage of at least one percent (1%)) are deemed to be invested in another
Investment Alternative.  To the extent a
Participant fails to elect an Investment Alternative under this Section 3.3,
he or she shall be deemed to have elected an Investment Alternative previously
designated by the Committee as the default Investment Alternative for all
Participants who fail to elect an Investment Alternative.  The Committee may adopt further rules applicable
to a Participant’s designation or change of designation of Investment
Alternatives.


 


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 Second Amendment to be executed as of the date
indicated below.


 


 


	
   

  	
  The Cheesecake Factory
  Incorporated

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DAVID OVERTON

  
	
   

  	
   

  	
  David Overton

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  Date: