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THE CHEESECAKE FACTORY INCORPORATED
PROXY STATEMENT
FOR THE ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON MAY 27, 2021
INTRODUCTION
General
This Proxy Statement is furnished to the stockholders of The Cheesecake Factory Incorporated, a Delaware corporation (the “Company” and “we,” “us” or “our”), in connection with the solicitation of proxies by our Board of Directors (“Board”) for use at the annual meeting of stockholders to be held virtually at www.virtualshareholdermeeting.com/CAKE2021, on Thursday, May 27, 2021, beginning at 10:00 a.m., Pacific Daylight Time, and at any adjournment or postponement thereof (“Annual Meeting”). There will be no physical meeting location. The meeting will only be conducted via a webcast. We intend this Proxy Statement and proxy voting materials to be available to stockholders on or about April , 2021.
Internet Availability of Proxy Materials
The Notice of Annual Meeting, this Proxy Statement and our Annual Report on Form 10-K for the fiscal year ended December 29, 2020 (the “Annual Report”) are available at www.proxyvote.com.
Householding of Proxy Materials
Pursuant to the rules adopted by the Securities and Exchange Commission (the “SEC”), we may deliver one copy of each of the Notice of Annual Meeting, this Proxy Statement and Annual Report to two or more stockholders sharing the same address. This process, which is commonly referred to as “householding,” helps lower our costs and conserve natural resources. In accordance with these rules, only one Proxy Statement and Annual Report, or Notice of Availability, will be delivered to multiple stockholders sharing an address unless we have received contrary instructions from one or more of the stockholders.
If, at any time, you no longer wish to participate in “householding” and would prefer to receive a separate Proxy Statement and Annual Report, or Notice of Availability, please notify your broker or direct your written request to Stacy Feit, Vice President of Investor Relations, The Cheesecake Factory Incorporated, 26901 Malibu Hills Road, Calabasas Hills, California 91301, (818) 871-3000. Stockholders who currently receive multiple copies of the Proxy Statement and Annual Report, or Notice of Availability, at their address and would like to request “householding” of their communications should contact their broker.
Voting; Quorum; Abstentions and Broker Non-Votes
As of the close of business on March 15, 2021, 46,409,777 shares of our common stock and 200,000 of Series A convertible preferred stock, par value $0.01 per share (the “Series A preferred stock”), were outstanding, and there were no outstanding shares of any other class of stock. Each holder of common stock as of March 31, 2021, the record date fixed by the Board for the Annual Meeting (“Record Date”), is entitled to one vote for each share of common stock held of record. The holder of Series A preferred stock is entitled to approximately 48 votes per share of Series A preferred stock regarding each matter other than Proposal 4, with respect to which the Series A preferred stock is not entitled to vote; provided, however, that the holder of Series A preferred stock are not entitled to vote such shares to the extent that conversion of such shares into shares of common stock would result in such holder beneficially owning in excess of 19.9% of then outstanding common stock (the “Ownership Limitation”). The holder of Series A preferred stock will be entitled to vote shares equal to % of the total outstanding voting power entitled to vote at the Annual Meeting. Only stockholders of record at the close of business on March 31, 2021 will be entitled to notice of and to vote at the Annual Meeting or any postponement or adjournment thereof. Stockholders do not have
cumulative voting rightsTHE CHEESECAKE FACTORY INCORPORATED
OUR MISSION, VISION AND VALUES Our Mission: To create an environment where absolute guest satisfaction is our highest priority. Our Vision: Through a shared commitment to excellence, we are dedicated to the uncompromising quality of our food, service, people and profit, while taking exceptional care of our guests and staff. We will notcontinuously strive to surpass our own accomplishments and be entitled to appraisal or similar dissenters’ rights in connection with the proposals to be voted on at the Annual Meeting. The representation of a majority of the shares entitled to vote at the Annual Meeting, present in person (including via the virtual Annual Meeting) or represented by proxy will represent a quorum for the transaction of business. Shares of common stock or Series A preferred stock represented by a properly signed and returned proxy will be treated as present at the Annual Meeting for purposes of determining a quorum, regardless of whether the proxy is marked as casting a vote or abstaining or constitutes a broker non-vote.
The holder of the Series A preferred stock has agreed to vote in favor of each of the nominees in Proposal 1 and in favor of Proposals 2 and 3. The holder of Series A preferred stock is not entitled to vote on Proposal 4. Additionally, David Overton, our Chief Executive Officer and Chairman of the Board, and his affiliated parties have agreed to vote in favor of Proposal 4. Mr. Overton and his affiliated parties will have the right to vote shares equal to % of the total outstanding voting power entitled to vote on Proposal Four. Shares held by Roark are not included in this calculation because they will not be entitled to vote on Proposal Four. Please see the section entitled “The Board and Corporate Governance—Series A Director—Voting and Support Agreements” in this Proxy Statement for additional information.
For Proposal 1, our Bylaws provide that, in the election of directors, nominees shall be elected by a plurality of the votes cast by the holders of shares of common stock and Series A preferred stock, voting togetherrecognized as a single class (and on an as-converted basis,leader in the case of the Series our industry.
Our Values: We are committed to:
Quality in everything we do
A preferred stock, subject to the Ownership Limitation), present in person (including via the virtual Annual Meeting) or represented by proxy at the Annual Meeting; provided, that each nominee has agreed that if elected, he or she will submit an irrevocable resignationpassion for consideration by the Board promptly following an uncontested election if he or she fails to receive a majority of votes cast. An uncontested election (such as the election held at this Annual Meeting) means that the number of nominees for director does not exceed the number of directors to be elected at that meeting. A majority of votes cast means that the number of shares cast “FOR” a nominee’s election exceeds the number of votes cast “AGAINST” that nominee. Abstentionsexcellence
Integrity, respect and broker non-votes are not considered a vote cast and, therefore, will have no effect on the outcome of the vote other than to reduce the number of affirmative votes required to elect a nominee. “Broker non-votes” are shares of stock held in record name by brokers or nominees for which instructions have not been received from the beneficial owners or persons entitled to vote and the broker or nominee does not have discretionary voting power under applicable rules or the instrument under which it serves in such capacity. Proposals 2 and 3 require the approval of a majority of the shares of common stock and Series A preferred stock, voting together as a single class (and on an as-converted basis, in the case of the Series A preferred stock, subject to the Ownership Limitation), present in person (including via the virtual Annual Meeting) or represented by proxy at the Annual Meeting and entitled to vote on such proposal. Abstentions as to these proposals will count as shares present and entitled to vote on the proposals and, accordingly, will count as votes “AGAINST” the proposal. Broker non-votes are not considered present and entitled to vote on the proposal and will have no effect on the outcome of the vote for the proposal, other than to reduce the number of affirmative votes required to approve the proposal. The ratification of the selection of KPMG LLP as the Company’s independent registered public accounting firm for fiscal year 2021 (Proposal 2) is considered a routine matter under applicable rules. A broker or other nominee may generally vote on routine matters, and therefore no broker non-votes are expected on Proposal 2.
Proposal 4 requires the approval of a majority of the shares of common stock, present in person (including via the virtual Annual Meeting) or represented by proxy at the Annual Meeting and entitled to vote on such proposal. In accordance with applicable rules of Nasdaq, the holder ofresponsibility
People – our Series A preferred stock is not entitled to vote such shares on this proposal. Abstentions as to this proposal will count as shares present and entitled to vote on the proposal and, accordingly, will count as votes “AGAINST” the proposal. Broker non-votes are not considered present and entitled to vote on the proposal and will have no effect on the outcome of the vote for the proposal, other than to reduce the number of affirmative votes required to approve the proposal.
How to Vote at the Virtual Annual Meeting
If you are the record holder of your stock as of the Record Date, you may submit a proxy by executing and returning the enclosed proxy card(s) in the provided postage-paid envelope. You may also attend thegreatest resource
Service-mindedness
Dynamic leadership
High performance
virtual Annual Meeting and vote your shares at www.virtualshareholdermeeting.com/CAKE2021 during the Annual Meeting. You will need the 16-digit control number which appears on your proxy card (printed in the box and marked by the arrow) and the instructions that accompanied your proxy materials.
If a bank, broker or other nominee is the record holder of your stock on the Record Date, you will be able to vote by following the instructions on the voting instruction form or notice that you receive from your bank, broker or other nominee. If a bank, broker or other nominee is the record holder of your stock on the Record Date you must obtain and submit a legal proxy from your broker or other nominee as the record holder and a letter from your broker or other nominee showing that you were the beneficial owner of your shares on the Record Date.
Proxies
Proxies delivered pursuant to this solicitation are revocable prior to their exercise and at the stockholder’s option by (i) attending and voting at the virtual Annual Meeting, as described above (although attending the virtual Annual Meeting via the Internet itself will not revoke a proxy), or (ii) filing a written notice with Scarlett May, our Secretary, revoking the proxy, or (iii) submitting another duly executed proxy bearing a later date. Unless previously revoked, all proxies representing shares entitled to vote delivered pursuant to this solicitation will be voted at the Annual Meeting by the named attorneys-in-fact and agents, to the extent authorized, in accordance with the directions contained therein.
If no directions are given, the shares represented by such proxies will be voted:
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FOR the election of the Board’s nominees for director: Mses. Edie A. Ames and Janice L. Meyer and Messrs. Alexander L. Cappello, Jerome I. Kransdorf, Laurence B. Mindel, David Overton, David B. Pittaway and Herbert Simon;
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FOR the ratification of the selection of KPMG LLP as our independent registered public accounting firm for fiscal year 2021, ending December 28, 2021;
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FOR approval of, on a non-binding, advisory basis, the compensation of the Company’s Named Executive Officers as disclosed pursuant to the compensation disclosure rules of the SEC; and
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FOR the approval of, pursuant to Nasdaq Listing Rule 5635, the issuance of shares of common stock in excess of the applicable ownership limitation upon conversion of the outstanding shares of Series A preferred stock.
The named proxy holders may vote in their discretion upon such other matters as may properly come before the Annual Meeting, including any motion made for adjournment or postponement (including for purposes of soliciting additional votes).
How do I attend the Virtual Annual Meeting?
The live audio webcast of the Annual Meeting will begin promptly at 10:00 a.m. Pacific Daylight Time on May 27, 2021. Online access to the audio webcast will open approximately 15 minutes prior to the start of the Annual Meeting to allow time for our stockholders to log in and test their devices’ audio system. We encourage our stockholders to access the meeting in advance of the designated start time. If you encounter any difficulties accessing the webcast, please call the technical support number that will be posted on the Virtual Shareholder Meeting log in page.
To attend the Annual Meeting, stockholders will need to log-in to www.virtualshareholdermeeting.com/CAKE2021 using the 16-digit control number on the proxy card or voting instruction form.
Can I submit questions prior to or at the Virtual Annual Meeting?
Stockholders may submit questions in writing in advance or during the Annual Meeting at the following website: www.virtualshareholdermeeting.com/CAKE2021. Stockholders will need the 16-digit control number which appears on their proxy card (printed in the box and marked by the arrow) and the instructions that accompanied their proxy materials. As part of the Annual Meeting, we will hold a live Q&A session, during which we will answer questions pertinent to the Company and the meeting matters, as time permits.
Solicitation
We pay for the cost of preparing, assembling and mailing the Notice of Internet Availability, the Notice of Annual Meeting and Proxy Statement and the cost of this solicitation. Our directors, officers and other staff members may solicit proxies, without additional remuneration, in person or by telephone, facsimile or email transmission. Banks, brokerage houses and other custodians, nominees or fiduciaries will be asked to forward soliciting material to their principals and to obtain authorization for the execution of proxies, and we will reimburse them for their reasonable out-of-pocket expenses incurred in that regard.
ITEMS TO BE VOTED ON
PROPOSAL ONE
Election of Directors General. Our Bylaws provide for a board of directors consisting of no less than five and no more than thirteen members. The exact number within this range is determined by resolution of the Board. The Board currently has set the number of directors at nine, including the Series A Director, who is subject to election only by the holder of Series A preferred stock and is not a nominee pursuant to this proposal. Please see the section entitled “Our Board of Director Nominees” in this Proxy Statement for additional information regarding the Series A Director.
Nominees. Our Director nominees exhibit diverse backgrounds, experience, skills, tenure and perspectives that uniquely contribute to the success of our business.
(1)
Mr. Ginsberg will be subject to election only by the Series A preferred stock.
The Corporate Governance and Nominating Committee of the Board (“Governance Committee”) recommended the nomination, which the Board approved, of the following individuals for re-electionelection to the Board for a term that will expire at the 20222025 annual meeting of stockholders or until their respective successors shall be elected and duly qualified: Edie A. Ames; Alexander L. Cappello; Khanh Collins; Adam S. Gordon; Jerome I. Kransdorf; Janice L. Meyer; Laurence B. Mindel; David Overton; and David B. Pittaway; and Herbert Simon.Pittaway. All nominees are current directors of the Company. For biographical information regarding the director nominees, please see the section entitled “Our Board of Director Nominees” in this Proxy Statement. Nominees. Our Director nominees exhibit diverse backgrounds, experience, skills, tenure and perspectives that uniquely contribute to the success of our business. The information provided below is as of the date of this Proxy Statement. DIRECTOR EXPERTISE BOARD DIVERSITY MATRIX
![[MISSING IMAGE: bc_diagetenureindep-bw.jpg]](https://capedge.com/proxy/PRE 14A/0001104659-24-041237/bc_diagetenureindep-bw.jpg) ![[MISSING IMAGE: pc_diversity-bw.jpg]](https://capedge.com/proxy/PRE 14A/0001104659-24-041237/pc_diversity-bw.jpg) | | | David Overton Director Since: 1992 Age: 77 | | | | Mr. Overton has served as our Chairman of the Board and Chief Executive Officer since our incorporation in 1992. He co-founded the Company with his parents, Evelyn and Oscar Overton. Mr. Overton created the namesake concept and opened the first The Cheesecake Factory restaurant in 1978 in Beverly Hills, California. He has grown The Cheesecake Factory® into an international brand and created three other concepts, Grand Lux Cafe®, RockSugar Southeast Asian Kitchen® and Social Monk Asian Kitchen®. Under Mr. Overton’s leadership, the Company acquired FRC, including the North Italia® brand. Other Experience: •
Founding member and director of The Cheesecake Factory Oscar and Evelyn Overton Charitable Foundation, a 501(c)(3) qualified, non-profit charitable organization Awards and Recognition: •
Elliott Group’s Legacy Award, recognizing excellence in leadership, lifetime achievement, and contributions of outstanding significance •
International Foodservice Manufacturers Association “Silver Plate Award,” recognizing the most outstanding and innovative talent in foodservice operations •
“Executive of the Year Award” from Restaurants & Institutions Magazine •
“MenuMasters Hall of Fame Award” and “Golden Chain Award” from Nation’s Restaurant News, for outstanding contributions to menu design and foodservice research and development •
“Entrepreneur of the Year” in the Food Services category for the Los Angeles region by Ernst & Young, for demonstrated excellence and extraordinary success in innovation, performance and personal commitment to The | | |
| | | | | | | Cheesecake Factory and the communities our restaurants serve •
Leadership Roundtable-Industry Leadership Award Qualifications: When evaluating Mr. Overton’s qualifications for continuation of his Board service, the Governance Committee and the Board considered Mr. Overton’s essential leadership role with us, his unique perspective and understanding of our mission, vision and values, the extent and depth of his knowledge and experience related to us and our concepts and the importance of Mr. Overton’s strategic vision. | | | | | | Edie A. Ames Director Since: 2016 Age: 57 Committee:
Compensation | | | | Ms. Ames has over 35 years of restaurant industry experience across the casual dining, fast casual and fine dining segments. Business Experience: •
Chief Executive Officer of Tastes on the Fly Airport Restaurant Group (2019-Present) •
Chief Executive Officer of The Pie Hole, a fast casual dining restaurant (2018-2019) •
President of The Counter and BUILT® Custom Burgers (2015-2018) •
Executive Vice President of Wolfgang Puck Catering (2013-2015) •
Chief Operating Officer of Real Mex Restaurants (2011-2013) and Del Frisco’s Restaurant Group (2010-2011) •
President of Morton’s Restaurant Group (2005-2010) •
Various roles at California Pizza Kitchen, Inc. (1993-2005) Qualifications: When evaluating Ms. Ames’ qualifications for Board service, the Governance Committee and the Board considered Ms. Ames’ more than 35 years of restaurant industry experience, including operational experience, domestic and international licensing and franchise experience, and her numerous leadership roles with a variety of restaurant concepts across the casual dining, fast casual and fine dining segments. | | | | | | Alexander L. Cappello Director Since: 2008 Age: 68 Committees:
Audit;
Compensation
(Chairperson) | | | | Mr. Cappello has led several public and private companies over the past 51 years. Business Experience: •
Chairman and Chief Executive Officer of Cappello Global, LLC (1996-Present) and of numerous Cappello entities, including a merchant bank and investment banks, whose principals have transacted business since 1973. Public Company Boards: •
Lead director of Virco Manufacturing Corporation (Nasdaq) (2016-2023) •
Chairman of Navidea Biopharmaceuticals (NYSE) (2021-2023) •
Director of Genius Products Inc. (Nasdaq) (2004-2005) •
Chairman of Inter-Tel (Nasdaq) (2005-2007) | | |
| | | | | | | Other Experience: •
Former Director of Cytrx •
Director of Koo Koo Roo, Inc. (1997-1998) •
Former Chairman of Intelligent Energy, PLC •
Former Chairman of Geothermal Resources Intl. (AMEX) •
Trustee of University of Southern California (2005-2010) Qualifications: When evaluating Mr. Cappello’s qualifications for continuation of his Board service, the Governance Committee and the Board considered Mr. Cappello’s extensive executive management and financial background, international business, management and marketing experience, former service on the boards of other public companies, including another restaurant company, experience with alternative energy sources and his corporate governance expertise. The Governance Committee and the Board have determined that Mr. Cappello’s experience qualifies him to serve as an “audit committee financial expert” on our Board. | | | | | | Khanh Collins Director Since: 2021 Age: 60 Committee:
Governance | | | | Ms. Collins has over 33 years of restaurant industry experience in fine casual, full-service casual and fine dining. Business Experience: •
Chief Executive Officer of the Sustainable Restaurant Group, whose brands include, among others, Bamboo Sushi, Sizzle Pie, Submarine Hospitality and Mr. West (2023-Present) •
Senior Vice President, Retail Food Group for Thompson Hospitality, a food service management company (2019-2022) •
Vice President of U.S. Operations and Global Training for the ONE Group/STK (2018-2019) •
Chief Operating Officer and Senior Vice President of Bravo Brio Restaurant Group (2013-2018) •
Various roles at McCormick and Schmick Seafood Restaurants (1996-2012) Qualifications: When evaluating Ms. Collins’ qualification for Board service, the Governance Committee and the Board considered Ms. Collins’ more than 33 years’ experience in the restaurant industry and her expertise in human capital management. | | | | | | Adam S. Gordon Director Since: 2022 Age: 57 Committee:
Compensation | | | | Mr. Gordon has over 33 years of experience in real estate management and development and global marketing and publicity. Business Experience: •
Managing director of Gordon Property Group, a real estate management and development company. In this role, he is in charge of marketing and strategic relationships for commercial buildings and other properties. (2019-Present) •
President of ASG Global Entertainment, a production and marketing company he founded (2016-Present) •
Former Executive Director of Publicity, Sony Pictures International, leading publicity and awards campaigns (1991-2003) Qualifications: When evaluating Mr. Gordon’s qualifications for Board service, the Governance Committee and the Board considered his extensive background in global marketing and promotions and his deep experience in the entertainment industry. | | |
| | | Jerome I. Kransdorf Director Since: 1997 Age: 85 Committees:
Compensation;
Governance
(Chairperson) | | | | Mr. Kransdorf has extensive investment management experience. Mr. Kransdorf serves as our lead director. Business Experience: •
President Emeritus (since 2014) of JaK Direct, a division of Muriel Siebert & Co., Inc. where he worked from 2001 to 2014 •
Former Senior Vice President, J. & W. Seligman & Co. Incorporated, an investment advisory firm (1997-2001) •
Investment and senior management roles, Wertheim & Co. and its successor companies (1959-1997) Qualifications: When evaluating Mr. Kransdorf’s qualifications for continuation of his Board service, the Governance Committee and the Board considered Mr. Kransdorf’s extensive investment management experience, his depth of knowledge and experience specific to us. | | | | | | Janice L. Meyer Director Since: 2020 Age: 64 Committee:
Audit | | | | Ms. Meyer has over 29 years of restaurant investment experience. Business Experience: •
Co-Founder and Managing Partner of Rellevant Partners, a private equity firm (2019-Present) •
Managing Director and Senior Restaurant Analyst in the Equity Research Department of Donaldson Lufkin & Jenrette, which was acquired by Credit Suisse Group AG (NYSE) in 2000 (1998-2008) •
Managing Director in the investment banking division of Morgan Stanley (NYSE) (2008-2010) Other Experience: •
Director at Tillster, Inc., a food ordering and delivery technology company (2007-Present) •
Director at Rasa Worldwide, Inc, a company specializing in fast-casual Indian food (2022-Present) •
Director of Chopt Creative Salad Co. (now known as Founders Table Restaurant Group), a fast casual restaurant group (2010-2013) •
Trustee of the Windward School in New York (2015-2023) Qualifications: When evaluating Ms. Meyer’s qualifications for Board service, the Governance Committee and the Board considered Ms. Meyer’s more than 29 years’ experience in the restaurant industry, extensive restaurant specific financial background and experience as a restaurant stock analyst. The Governance Committee and the Board has determined that Ms. Meyer’s experience qualifies her to serve as an “audit committee financial expert” on our Board. | | | | | | Laurence B. Mindel Director Since: 2012 Age: 86 Committees:
Compensation;
Governance | | | | Mr. Mindel has more than 54 years of experience as a restaurant creator, developer and operator. Business Experience: •
Managing Partner of Poggio Trattoria, an award-winning Italian restaurant in Sausalito, CA (2003-Present) •
Managing Partner of Copita Tequileria Y Comida, a “modern” Mexican restaurant in Sausalito, CA (2012-Present) | | |
| | | | | | | •
Managing Partner of Convivo, a “nomad Italian” restaurant in Santa Barbara, CA (2016-Present) •
Co-founder of Spectrum Foods whose restaurant portfolio once included, among others, California-based restaurants Ciao, Prego, MacArthur Park, Guaymas and Harry’s Bar. Following the acquisition of Spectrum Foods by Saga Corp. (NYSE) in 1984, Mr. Mindel served as President of Saga’s restaurant group where he directed the operations of more than 200 restaurants with combined revenue of over $375 million (1984-1986) •
Founder of Il Fornaio, a restaurant and bakery company which became public in 1997 (Nasdaq) and was subsequently taken private in 2001 (1986-2011) Awards and Recognition: •
Nation’s Restaurant News “Golden Chain” award •
International Foodservice Manufacturers Association “Gold Plate” award •
Food Arts Magazine “Silver Spoon” award •
Leadership Roundtable Conference award for Distinguished & Exemplary Leadership in the Food Service Industry •
Inducted into the California Restaurant Association’s Hall of Fame •
The first American and the first person of non-Italian descent to be awarded the Caterina de Medici Medal from the Italian government, recognizing excellence in the preservation of Italian heritage outside of Italy Qualifications: When evaluating Mr. Mindel’s qualifications for continuation of his Board service, the Governance Committee and the Board considered Mr. Mindel’s more than 54 years’ experience in the restaurant industry, both as a concept creator and an operator and his experience guiding a publicly-traded restaurant company. | | | | | | David B. Pittaway Director Since: 2009 Age: 72 Committee:
Audit
(Chairperson) | | | | Mr. Pittaway has more than 35 years of experience in finance, investment banking and private equity. Business Experience: •
Vice Chairman, Senior Managing Director, Senior Vice President, Secretary and Chief Compliance Officer of Castle Harlan, Inc., a private equity firm (1987-Present) •
Vice Chairman and Chief Compliance Officer of Branford Castle, Inc., an investment company (October 1986-Present) •
Director and Vice Chairman of Branford Chain, Inc. (1987-Present) •
Vice President and Chief Financial Officer of Branford Chain, Inc. (1987-1998) •
Vice President of Strategic Planning and Assistant to the President of Donaldson, Lufkin & Jenrette, Inc., an investment banking firm (1985-1986) Public Company Boards: •
Director of Shelf Drilling, Inc. (OSLO) (2015-Present) •
Director of Bravo Brio Restaurant Group (Nasdaq) (2006-2018) •
Director of Morton’s Restaurant Group (NYSE) (1988-2012) •
Director of McCormick & Schmick’s Seafood Restaurants (Nasdaq) (1994-1997 and 2002-2009) •
Director of Dave & Buster’s, Inc. (Nasdaq) (2003-2006) | | |
| | | | | | | Other Experience: •
Director of Caribbean Restaurants, Inc. (2004-2023) •
Director of TooJays Restaurants (2013-2020) •
Director of Colyar Technologies, Inc. (2019-2020) •
Director of Gold Star Foods, Inc. (2014-2019) •
Director and co-founder of the Armed Forces Reserve Family Assistance Fund •
Audit Committee member of the University of Kansas Endowment Association Board of Trustees Qualifications: When evaluating Mr. Pittaway’s qualifications for continuation of his Board service, the Governance Committee and the Board considered his extensive financial and industry experience, including his service on audit committees of other public restaurant companies, his compliance background and familiarity with SEC rules and regulations related to public companies. The Governance Committee and the Board has determined that Mr. Pittaway’s experience qualifies him to serve as an “audit committee financial expert” on our Board. | | | | | | Except as set forth above, each nominee has been engaged in his or her principal occupation described above during the past five years. There are no family relationships between any of our directors or executive officers as defined under SEC rules. | | |
Unless a stockholder specifies otherwise, the shares represented by each returned proxy will be voted FOR the election of Mses. Edie A. Ames, Khanh Collins and Janice L. Meyer, and Messrs. Alexander L. Cappello, Adam S. Gordon, Jerome I. Kransdorf, Laurence B. Mindel, David Overton and David B. Pittaway and Herbert Simon.Pittaway. In the event any of the nominees becomes unable or declines to serve as a director at the time of the Annual Meeting, the proxy holders will vote the proxies for any substitute nominee designated by the Board to fill the vacancyvacancy. Required Vote. Our Bylaws provide that, in the election of directors, nominees shall be elected by a plurality of the votes cast by the holders of shares of common stock and the holder of Series A preferred stock, voting together as a single class (and on an as-converted basis, in the case of the Series A preferred
stock, subject to the Ownership Limitation), present in person (including via the virtual Annual Meeting)platform) or represented by proxy at the Annual Meeting; provided that each nominee must agree that, in an uncontested election, if elected, he or she will submit an irrevocable resignation for consideration by the Board promptly following the election if he or she failsthat will be effective upon (i) such director’s failure to receive a majority of votes cast.cast in any uncontested election at which he or she is subject to reelection, and (ii) acceptance of that resignation by the Board. Each of the nominees included in this proposal has so agreed. An uncontested election (such as the election held at this Annual Meeting) means that the number of nominees for director does not exceed the number of directors to be elected at that meeting. A majority of votes cast means that the number of shares cast “FOR” a nominee’s election exceeds the number of votes cast “AGAINST” that nominee. Abstentions and broker non-votes are not considered a votevotes cast and, therefore, will have no effect on the outcome of the vote other than to reduce the number of affirmative votes required to elect a nominee. “Broker non-votes” are shares of stock held in record name by brokers or nominees for which instructions have not been received from the beneficial owners or persons entitled to vote and the broker or nominee does not have discretionary voting power under applicable rules or the instrument under which it serves in such capacity.vote.
THE BOARD UNANIMOUSLY RECOMMENDS A VOTE FOR THE ELECTION OF EDIE A. AMES,
ALEXANDER L. CAPPELLO, KHANH COLLINS, ADAM S. GORDON, JEROME I. KRANSDORF, LAURENCE B. MINDEL, JANICE L. MEYER, DAVID OVERTON AND DAVID B. PITTAWAY AND HERBERT SIMON TO THE BOARD.
THE BOARD AND CORPORATE GOVERNANCE Director Nominations Process The Board has adopted “Policies and Procedures Regarding Board of Director Candidates” (the “Nominations Policy”), which describes the process by which candidates are selected for possible inclusion in the Board’s recommended slate of director nominees. Our Nominations Policy expresses the Board’s commitment to actively seek highly-qualified candidates possessing diversity of gender and ethnicity to include in the pool from which nominees are chosen. The Nominations Policy is available on our website at investors.thecheesecakefactory.com, by clicking on the link for “Governance.” The Board also considers stockholder guidelines, developments in state laws, and Nasdaq listing standards with respect to board diversity. The Governance Committee administers the Nominations Policy and is responsible for identifying candidates for nomination or appointment to the Board. To fulfill this function, the Governance Committee reviews, at least annually, the size and composition of the Board and its committees, including the number of directors eligible for election at the annual meeting of stockholders. The Governance Committee may solicit recommendations for nominees from directors, members of management or others. In addition, the Governance Committee will consider recommendations of a stockholder of record or beneficial owner that complies with the Nominations Policy. Minimum Qualifications. The Nominations Policy contains the following minimum qualifications for candidates for nomination to the Board: •
Pursuant to our Bylaws, each candidate nominated by a stockholder must consent in writing to be named in our proxy statement as a nominee and to serve as a director of the Company if elected. •
Pursuant to our Bylaws, each candidate must agree that if elected he or she will submit an irrevocable resignation to our Company’s Secretary promptly following his or her election or reelection that will be effective upon (i) such director’s failure to receive a “majority vote” for reelection in any “uncontested election” (as those terms are defined in our Bylaws) at which he or she is subject to reelection; and (ii) acceptance of that resignation by the Board in accordance with the Bylaws and any policies and procedures adopted by the Board for such purposes. •
Each candidate shall be an individual who has demonstrated integrity and ethics in his or her personal and professional life and has established a record of professional accomplishment in his or her chosen field. •
Each candidate shall be prepared to represent the best interests of all of our stockholders and not just one particular constituency. •
Each candidate must be prepared to participate fully in Board activities, including (with respect to non-employee candidates) active membership on Board committee(s) if appointed as a committee member, and not have other personal or professional commitments that would, in the Governance Committee’s sole judgment, interfere with or limit his or her ability to do so. Criteria for Evaluating Candidates; Diversity. Our Board believes director diversity enhances dialogue in the boardroom, contributing to thorough analysis of proposals and informed decision-making. The Governance Committee seeks to further develop the diverse characteristics of the Board with the goal of enhancing the Board’s ability to adequately perform its responsibilities and adhere to good corporate governance practices. In evaluating nominations, the Governance Committee takes into consideration the overall composition of the Board, the balance of different capabilities and overall diversity in its broadest sense including in the areas of personal and professional experiences; age; gender; ethnicity; geography; financial and managerial and operational knowledge; variety of opinions and perspectives; and other differentiating characteristics. In addition, the Governance Committee is committed to actively seeking highly-qualified candidates who reflect diversity of gender and ethnicity to include in the pool from which Board nominees are chosen, including candidates from non-executive corporate positions and non-traditional environments.
The Governance Committee periodically reviews and assesses the effectiveness of the practices used in considering potential director candidates. Following this review, the Governance Committee presents any recommendation for changes of the policy or protocols to the Board. The Governance Committee considers the following criteria, among other factors, in evaluating candidates for nomination in light of the size and composition of the Board and its committees: •
Satisfaction of the minimum qualifications established by the Governance Committee. •
Education and other training. •
Relevant personal and professional background, including financial, managerial and operational skills and knowledge and experience in both corporate and non-traditional environments, such as government, academia and non-profit organizations. •
Whether the candidate would qualify as an “independent” director as defined by Nasdaq’s listing standards. •
The candidate’s reputation for judgment and honesty. •
The existence of any of the relationships described in Item 407(e)(4) of Regulation S-K (“Compensation Committee Interlocks and Insider Participation”). •
The number and identity of any other boards of directors of which the candidate is a member. •
Other professional and personal commitments that could affect the candidate’s ability to serve. Stockholder Recommendations to the Governance Committee for Nomination of Directors. The Nominations Policy provides that the Governance Committee will consider recommendations for nominations submitted by stockholders of record or beneficial owners. In order to give the Governance Committee sufficient time to evaluate a recommended candidate, the recommendation should be received by our Secretary at our principal executive offices not later than the 120th calendar day before the date of our proxy statement release to stockholders in connection with the previous year’s annual meeting of stockholders. With respect to the 2025 annual meeting of stockholders, recommendations must be received on or before December 19, 2024. In the case of a special meeting called for the election of one or more directors, a recommendation should be received by our Secretary no later than the close of business on the tenth day following the date on which we make public disclosure of the meeting date. The stockholder’s recommendation must include all of the following: •
The stockholder’s name, address and telephone number. •
The recommended candidate’s name, address and telephone number. •
The written consent of the recommended candidate to be named in our proxy statement and to serve as a director if nominated, elected or appointed, and qualified to serve. •
A description of all arrangements or understandings in connection with such recommendation between the stockholder and the recommended candidate or between the stockholder and any other person or persons (including their names). •
A description of any business, familial or other financial or personal relationship between the stockholder and the recommended candidate. •
Information regarding the recommended candidate as to each of the criteria identified above for evaluating recommendations. Evaluation of Candidates. All qualified candidates identified through the process outlined above, including incumbents, will be evaluated based on the same criteria. If, based on the initial evaluation, a new candidate continues to be of interest, the Chair of the Governance Committee will interview the candidate and communicate his or her evaluation to the other committee members and the Chairman of the Board. Other members of the Governance Committee and senior management will conduct subsequent interviews. Ultimately, background and reference checks will be conducted, and the Governance Committee will meet to finalize its list of recommended candidates for consideration by the full Board. If an incumbent is nominated, the interview process may be abbreviated at the discretion of the Chair of the Governance Committee. If the
Chair of the Governance Committee is being considered for re-nomination, the other Governance Committee members may appoint another member of the Governance Committee to head the review process for the Chair’s reconsideration. Future Revisions to the Nominations Policy. The Governance Committee’s Nominations Policy is intended to provide a flexible set of guidelines for the effective functioning of the director nominations process. The Governance Committee intends to review this policy and procedure at least annually and anticipates that modifications will be necessary from time to time as our needs and circumstances evolve, and to conform with changes in applicable legal or listing standards. General Nomination Right of All Stockholders. Stockholders may nominate one or more persons for election as a director of the Company at an annual meeting of stockholders if the stockholder complies with the advance notice, information and consent provisions contained in our Bylaws. Our Bylaws provide that no person may solicit proxies in support of a nominee other than the Board’s nominees unless such person has complied with Rule 14a-19 under the Exchange Act, including applicable notice and solicitation requirements. Stockholder nominations for the election of directors may be made only by a stockholder of record on both the date of giving notice and on the record date for such meeting by giving timely written notice to our Secretary at our principal executive offices. Such notice must be received by the Secretary no less than 90 days nor more than 120 days prior to the anniversary date of the immediately preceding annual meeting of stockholders. If notice or prior public disclosure of the date of the annual meeting is given or made to the stockholders for a meeting date that is not within 30 days before or after the anniversary of the immediately preceding annual meeting of stockholders, notice by the stockholder will be timely if received not later than the close of business on the tenth day following the day on which such notice was mailed or such public disclosure was made, whichever is first, or no less than 90 days nor more than 120 days prior to the annual meeting. For further information on the timely nomination of a person for election as a director of the Company at the 2025 annual meeting of stockholders, see “Stockholder Proposals for the 2025 Annual Meeting of Stockholders.” In the event we increase the number of directors to be elected and we make no public announcement at least 100 days prior to the first anniversary of the preceding year’s annual meeting that names all of the nominees for director or specifies the size of the increased Board, a stockholder’s notice will be considered timely, but only with respect to nominees for any new positions created by the increase, if the notice is delivered to, or mailed and received at, our principal executive offices (addressed to our Secretary) not later than ten days following the day on which we make the public announcement. In the case of a special meeting of stockholders called for the purpose of electing directors, notice will be timely if the stockholder provides written notice to our Secretary not later than the close of business on the tenth day following the day on which notice of the date of the special meeting was mailed or such public disclosure of the meeting date was made, whichever first occurs, or no less than 90 or more than 120 days prior to the meeting. The stockholder’s notice must include all of the information required by our Bylaws, and the Bylaws require any candidate for the Board nominated by a stockholder to provide certain background information and representations regarding disclosure of voting or compensation arrangements, compliance with the Company’s policies and guidelines, intention to deliver an irrevocable resignation in accordance with the Bylaws, and intent to serve the entire term. The foregoing summary is not a complete description of the provisions of our Bylaws pertaining to stockholder nominations and proxies. Stockholders may obtain, without charge, a copy of our Bylaws upon written request to our Secretary at our principal executive offices. Our Bylaws are also available on our website at investors.thecheesecakefactory.com, by clicking on the link for “Governance.” Qualifications of Current Directors and Director Nominees. The Governance Committee of the Board evaluates the qualifications of our director nominees prior to each annual meeting of stockholders. As part of this evaluation process, the Governance Committee reviews the current composition of the Board and assesses whether the qualifications of each director continue to meet the Governance Committee’s requirements for Board service. Our Board of Director Nominees The Governance Committee recommended, and our Board nominated, nine of our current directors for re-election at the Annual Meeting to serve a one-year term expiring at the 2025 annual meeting of
stockholders or until their respective successors shall be elected and qualified. At the Annual Meeting, proxies cannot be voted for a greater number of individuals than the nine nominees named in Proposal 1 to this Proxy Statement. General. Our Bylaws provide for a board of directors consisting of no less than five and no more than thirteen members. The exact number within this range is determined by resolution of the Board. The Board currently has set the number of directors at nine. Director Independence The Board has determined each of the following directors to be an “independent director” as defined under Nasdaq rules: Edie A. Ames; Alexander L. Cappello; Khanh Collins; Adam S. Gordon; Jerome I. Kransdorf; Janice L. Meyer; Laurence B. Mindel; and David B. Pittaway. In this Proxy Statement, each of these eight directors is referred to individually as an “Independent Director” and they are referred to collectively as the “Independent Directors.” Board Leadership Structure and Lead Director Our Chief Executive Officer, David Overton, also serves as Chairman of our Board. Mr. Overton, who founded the Company along with his parents, Oscar and Evelyn Overton, was the driving force behind the creation and opening of The Cheesecake Factory restaurant concept and has served in a combined role as Chief Executive Officer and Chairman since 1992. We believe this leadership structure enables Mr. Overton to function as the critical link between the Board and the operating organization. It also streamlines communications with and among the Board on key topics such as our strategic objectives, long-term planning, capital allocation, and enterprise risk management. In addition to Mr. Overton’s leadership on the Board, we determined that the appointment of an independent, lead director (“Lead Director”) would be appropriate in order to establish another layer of Board oversight, share certain responsibilities with, and facilitate communication between, our Chairman and our Independent Directors, and continue to follow best practices in corporate governance. To this end, the Board adopted a policy regarding the appointment of a Lead Director—one Independent Director who is selected annually by the Independent Directors. Mr. Kransdorf currently serves as Lead Director. The Lead Director presides at executive sessions of the Independent Directors, serves as principal liaison between the Independent Directors and the Chairman, works with the Chairman to set and approve the schedule and agenda for meetings of our Board and its committees, directs the retention of advisors and consultants who report directly to the Board, serves as liaison for consultation and communication with stockholders, oversees the annual evaluation of our Board and its committees and evaluates, in cooperation with the Compensation Committee of the Board (“Compensation Committee”) and all members of the Board, the Chief Executive Officer’s performance. For information on our Board leadership, including the role of our Chairman and Lead Director, please see the section below entitled “Corporate Governance Principles and Guidelines; Corporate Governance Materials Available on Our Website.” Role of the Board in Risk Oversight While the Audit Committee of the Board (“Audit Committee”) monitors risks related to our financial statements, the Board has determined that oversight of Company-wide risk should remain with the full Board due to the strategic nature of enterprise risk management and the Board’s desire to receive feedback from a broad spectrum of disciplines regarding management’s plans with respect thereto. The Board meets periodically with our management to review the effectiveness of processes for identifying and managing significant risks, including cybersecurity risk. The Board also reviews with management the strategic objectives that may be affected by identified risks, the level of appropriate risk tolerance, our plans for monitoring, mitigating and controlling risk, the effectiveness of such plans and our disclosure of risk. The Corporate Governance and Nominating Committee is responsible for reviewing and making recommendations to the Board regarding the Company’s policies on environmental, social and governance (“ESG”) matters and CSR practices.
Meeting Attendance During fiscal 2023, the Board held eight meetings and the Independent Directors held two executive sessions without management present. Meetings include both in-person, telephonic, and video conference meetings. For information regarding committee composition and number of committee meetings held during fiscal 2023, please see the section below entitled “Committees of the Board of Directors.” All of our directors attended at least 75% of the aggregate number of meetings of the Board and the committees on which he or she served while they were on the Board in fiscal 2023. Our Board members are encouraged to attend our annual meeting of stockholders and all of our directors were present at the 2023 virtual annual meeting. Committees of the Board of Directors The Board has three standing committees: the Audit Committee, the Compensation Committee and the Corporate Governance and Nominating Committee. Committee membership as of the date of this Proxy Statement is as follows: COMMITTEES OF THE BOARD OF DIRECTORS | | | Board Member | | | | Audit Committee | | | | Compensation
Committee(1) | | | | Corporate
Governance and
Nominating
Committee(1) | | | | | | David Overton, Chairman of the Board | | | | — | | | | — | | | | — | | | | | | Edie A. Ames | | | | — | | | | Member | | | | — | | | | | | Alexander L. Cappello | | | | Member* | | | | Chair | | | | — | | | | | | Khanh Collins | | | | — | | | | — | | | | Member | | | | | | Adam S. Gordon | | | | — | | | | Member | | | | — | | | | | | Jerome I. Kransdorf, Lead Director | | | | — | | | | Member | | | | Chair | | | | | | Janice L. Meyer | | | | Member* | | | | — | | | | — | | | | | | Laurence B. Mindel | | | | — | | | | Member | | | | Member | | | | | | David B. Pittaway | | | | Chair* | | | | — | | | | — | | |
*
Designated by the Board as an “audit committee financial expert.” (1)
On March 7, 2024, Herbert Simon notified the Board of his intention to retire from the Board, effective immediately. Prior to his retirement, Mr. Simon was a member of the Compensation and Corporate Governance and Nominating Committees. The Board determined that each member of the committees of the Board in service for all of fiscal 2023 met the independence requirements applicable to those committees under SEC and Nasdaq rules. The Governance Committee recommends committee membership and chair assignments to the Board, which the Board considers when making committee membership and committee chair assignments at its meeting generally held in conjunction with each annual meeting of stockholders. Changes to committee assignments are also made from time to time during the course of the year, as deemed appropriate by the Board. The role of each committee is described below. Audit Committee. The Audit Committee operates pursuant to a written charter and is primarily responsible for monitoring the quality and integrity of our financial statements and internal controls over financial reporting; our compliance with legal and regulatory requirements, including reviewing cybersecurity risks identified by management; our independent registered accounting firm’s qualifications and independence; and the performance of our internal audit function and independent registered accounting firm. The Audit Committee provides an avenue of communication among our independent registered accounting firm, management, the internal audit function and the Board and issues the report of the Audit Committee required by the SEC to be included in this Proxy Statement. Our Director of Internal Audit
reports directly to the Audit Committee and is responsible for conducting comprehensive audits of our internal financial controls and the operational effectiveness of related activities and systems. The Audit Committee conducts an annual performance evaluation of its composition, compliance procedures, financial oversight responsibilities and other matters. The Audit Committee is directly responsible for the appointment, compensation, retention and oversight of the work of our independent registered accounting firm engaged to issue an audit report or perform other audit, review or attest services. The Audit Committee pre-approves the audit work, as well as all non-audit work, to be performed by our external auditors after considering its permissibility under SEC rules and its impact on our independent registered accounting firm’s independence. The Audit Committee also reviews material written communications our independent registered accounting firm may provide to management and discusses any concerns with the auditors and management. Pursuant to its charter, the Audit Committee reviews our policies and procedures relating to conflicts of interest and approves any proposed “related party transaction.” For this purpose, “related party transaction” means a transaction between the Company and a related person that is required to be disclosed pursuant to Item 404 of Regulation S-K adopted by the SEC. For a discussion of our policies with respect thereto, see “Policies Regarding Review, Approval or Ratification of Transactions with Related Persons” in this Proxy Statement. The Audit Committee conducts an annual evaluation of its charter. Compensation Committee. The Compensation Committee operates pursuant to a written charter. The Compensation Committee is responsible for determining the compensation of our Chief Executive Officer and all of our other executive officers. The Compensation Committee reviews and approves all employment, retention and severance agreements for executive officers and causes to be prepared the report of the Compensation Committee required by the SEC to be included in this Proxy Statement. The Compensation Committee is directly responsible for the appointment, compensation and oversight of the work of any compensation advisor retained by the Compensation Committee. The Compensation Committee also makes recommendations to the Board concerning non-employee director compensation. The Compensation Committee annually reviews and discusses with management the Company’s compensation policies to assess any risks reasonably likely to have a material adverse effect on the Company. The Compensation Committee is also tasked with overseeing or making recommendations to the Board with respect to: (i) stock ownership guidelines for executive officers and monitoring compliance therewith; (ii) policies governing “insider” trading, hedging and pledging of Company stock and reviewing compliance therewith; and (iii) any clawback policies. The Compensation Committee also advises the Board on management proposals to stockholders on executive compensation matters, including advisory votes on executive compensation and frequency of such votes, and proposals received from stockholders on executive compensation matters. The Compensation Committee is charged with reviewing the results of such votes and considering any implications in connection with the Compensation Committee’s ongoing determinations and recommendations regarding the Company’s executive compensation policies and practice. The Compensation Committee is also responsible for the recoupment of any erroneously awarded incentive-based compensation paid to our current or former executive officers in the event we are required by applicable law or applicable accounting or auditing principles to prepare an accounting restatement to correct the Company’s material noncompliance with any financial reporting requirement under securities laws, including restatements that correct an error in previously issued financial statements that is material to the previously issued financial statements or that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period. The Compensation Committee additionally has discretion to recoup bonus and/or equity awards paid from a current or former executive officer who engaged in fraud or intentional misconduct contributing to the need for such a restatement in accordance with the Company’s Clawback Policy (defined below). The Compensation Committee approves and administers our incentive compensation programs, including our long-term equity and short-term bonus incentive plans. The Compensation Committee makes recommendations to the Board with respect to incentive and equity compensation plan structure and periodically reviews and makes recommendations concerning existing or new executive compensation, performance incentives, employee benefits, stock plans and management perquisites. The Compensation Committee authorizes and approves all grants of equity compensation to our employees under our equity
compensation plan. See “Oversight of Named Executive Officer Compensation” for additional information regarding our process for determining executive compensation, including the role of Frederic W. Cook & Co., Inc., the Compensation Committee’s independent compensation consultant, and the Chief Executive Officer. The Compensation Committee conducts an annual evaluation of its charter. Governance Committee. The Governance Committee operates pursuant to a written charter. The Governance Committee is responsible for evaluating issues and developments related to corporate governance and making recommendations to the Board with respect to corporate governance standards, corporate governance proposals from stockholders, and policies on ESG matters and CSR practices, and the establishment and composition of committees of the Board. The Governance Committee is responsible for overseeing and recommending programs and activities for the continuing education of directors. The Governance Committee also identifies potential candidates for nomination or appointment as directors and makes recommendations to the Board concerning nominees to be presented for stockholder approval and to fill any vacancies. The Governance Committee assists the Chief Executive Officer in succession planning for key executive positions. The Governance Committee conducts an annual evaluation of its charter. Committee Charters. All of our committee charters are available on our website. For information on where to access these documents, please see the section entitled “Corporate Governance Principles and Guidelines; Corporate Governance Materials Available on Our Website.” Designation of Audit Committee Financial Experts With the assistance of our outside legal counsel, the Board has determined that David B. Pittaway, Alexander L. Cappello and Janice Meyer are each an “audit committee financial expert” as such term is defined in Item 407(d)(5)(ii) of Regulation S-K adopted by the SEC. Corporate Governance Principles and Guidelines; Corporate Governance Materials Available on Our Website Our Board is committed to ethical business practices and believes that good corporate governance is important to ensure that we are managed for the long-term benefit of our stockholders. In the spirit of this commitment, the Board has adopted the “Corporate Governance Principles and Guidelines” (“Corporate Governance Guidelines”) which includes, among other topics, the size and operations of our Board and its committees, independence of directors, selection and responsibilities of our Lead Director, Board membership criteria, service by our directors on boards of other publicly-traded companies, director and executive officer stock ownership guidelines and our policy on communicating concerns to our Board. Our Corporate Governance Guidelines, as well as other corporate governance information listed below, are available on our website at investors.thecheesecakefactory.com, by clicking on the link for “Governance”: •
Bylaws •
Code of Ethics for Executive Officers, Senior Financial Officers and Directors •
Code of Ethics and Code of Business Conduct •
Committee Charters (Audit Committee, Compensation Committee and Governance Committee) •
Policies and Procedures Regarding Board of Director Candidates Throughout this Proxy Statement, we may refer to various documents that are available on our website. The contents posted on, or accessible through, our website are not incorporated by reference into this Proxy Statement or any of our filings with the SEC and may be revised by us (in whole or in part) at any time and from time to time. Our Code of Ethics and Code of Business Conduct provides that Company assets (cash, inventory, equipment, etc.) may not be contributed to any public candidate, political action committee, party or ballot measure without the advance written permission of the Company’s General Counsel. We did not make any such contributions in 2023.
Stockholder Engagement We appreciate the relationships we have been able to foster with our stockholders and value their input. Members of our senior leadership team regularly engage in meaningful dialogue with our stockholders throughout the year on topics including business initiatives and results, strategy and capital allocation, and ESG initiatives. On occasion, members of the Board participate in these engagements with stockholders. In addition, we have developed an ongoing practice of discussing important governance issues with our stockholders in an effort to continuously improve our governance processes and communication. These engagements routinely cover corporate governance, executive compensation, environmental and social programs and goals and other topics that may be important to us or our stockholders at the time. We generally hold these discussions during the fall but may request engagement at other times if warranted. We share feedback we receive with other members of our senior leadership team and board of directors for consideration and discussion. Stockholder Communications with the Board Our Corporate Governance Guidelines described above include the policy our Board has adopted for stockholders and employees who wish to communicate any concern directly to the Board. Please refer to Section VI of our Corporate Governance Guidelines at investors.thecheesecakefactory.com for a description of this process. Corporate Social Responsibility In 2023 we updated on our progress toward our CSR goals through our 2022 CSR Report, which details programs and initiatives across our operations with respect to our staff, our sourcing, our environmental impact and our support for the communities where we operate. Some highlights of our efforts and accomplishments in this regard are included below and further information is described in our most recent CSR update. People and Communities •
In 2023 we were recognized by FORTUNE® Magazine as one of the “100 Best Companies to Work For®” for a tenth consecutive year and was named one of the FORTUNE® “Best Workplaces for Millennials”™. In 2023 we were also named to PEOPLE® Magazine’s list of Companies that Care®. •
Our fiscal 2023 combined internal management promotion rate at The Cheesecake Factory, Grand Lux Cafe and North Italia concepts was a combined 41%. •
In fiscal 2023 The Cheesecake Factory, Grand Lux Cafe and North Italia management attrition rate was 20% and our combined non-management attrition rate was 79%, compared to the upscale casual combined rolling 12-month industry averages of 33% and 94%, respectively, reported by Black Box Workforce Intelligence in December 2023. Our Environment •
The Cheesecake Factory restaurants, Grand Lux Cafe restaurants and bakeries participate in a food donation program which redirects surplus food away from landfills to local food banks and non-profit organizations. Since the program’s inception in 2007, we have donated more than 7.9 million pounds of food, including nearly 650,000 pounds in calendar 2023. •
We have implemented food waste and organic diversion programs in 67 of our restaurants, which, combined with our recycling and food donation programs, helped us divert approximately 26% of our waste stream away from landfills in 2023. •
We have committed to reducing our carbon emissions in alignment with the Paris Agreement. •
We have committed to report in line with SBTi’s Forest, Land and Agriculture guidance and the draft Greenhouse Gas Protocol Land Sector and Removals guidance. Our CSR Reports are available on our website at https://www.thecheesecakefactory.com/corporate-social-responsibility. The CSR Reports and other contents posted on, or accessible through, our website are not
incorporated by reference into this Proxy Statement or any of our filings with the SEC and may be revised by us (in whole or in part) at any time and from time to time. Compensation Committee Interlocks and Insider Participation During fiscal 2023, Ms. Edie A. Ames and Messrs. Adam S. Gordon, Jerome I. Kransdorf, Laurence B. Mindel and Herbert Simon served on the Compensation Committee, with Mr. Alexander L. Cappello serving as its Chair. During fiscal 2023, no member of the Compensation Committee was an officer or employee of ours, a former officer of ours or of our subsidiaries or had a relationship requiring disclosure by us under Item 404 of Regulation S-K. None of our executive officers served on the board of directors or compensation committee of any other entity that has or has had one or more executive officers who served as a member of our Board or the Compensation Committee during fiscal 2023. Director Compensation The Compensation Committee is responsible for periodically reviewing compensation payable to its non-employee directors for service on the Board or its designated committees and making recommendations to the Board concerning such compensation. In doing so, the Compensation Committee considers recommendations by Frederic W. Cook & Co., Inc. (“FW Cook”), its independent compensation consultant, which are informed by competitive analysis conducted by them as well as other factors, including, without limitation, each director’s responsibilities. The analysis conducted by FW Cook considers non-employee director compensation practices at the same peer companies used for the Compensation Committee’s evaluation of executive compensation and addresses prevalent market practices for non-employee director compensation. The Compensation Committee intends to set director compensation levels at or near the market median relative to non-employee directors at companies of comparable size, industry and scope of operations in order to ensure directors are paid competitively for their time commitment and responsibilities. Providing a competitive compensation package is important because it enables us to attract and retain highly-qualified non-employee directors who are critical to our long-term success. The Board reviews recommendations by the Compensation Committee and ultimately approves the non-employee director compensation program. The FW Cook analysis conducted for fiscal 2023 affirmed that our director compensation program continues to be aligned with best practices as follows: •
Annual Fees. No separate meeting fees are provided for Board meeting attendance. •
Deferred Compensation Plan. Board members are eligible to participate in our Executive Savings Plan, a non-qualified deferred compensation plan, by contributing all or a portion of their director fees and equity awards in the form of stock units to the plan. We do not match Board member contributions. See “Executive Compensation-Retirement Plans-Non-qualified Deferred Compensation” for more information. •
Minimal Perquisites. Each Independent Director is entitled to reimbursement for reasonable out-of-pocket expenses incurred in connection with travel to and from, and attendance at, meetings of the Board or its committees and related activities, including director education courses and materials. Independent Directors also receive dining privileges at our restaurants. •
Stock Ownership Guidelines. Pursuant to our stock ownership guidelines our Independent Directors are required to own a minimum number of shares of our common stock with a fair market value equal to four times the current annual cash fee for non-employee directors ($400,000 as of the end of fiscal 2023). Newly appointed directors are required to meet the guideline within five years of being appointed. For purposes of this policy, ownership includes any shares owned by a director or his or her immediate family members or held by him or her as part of a tax or estate plan in which the director retains beneficial ownership and unvested restricted stock or restricted stock units. The value of shares owned is calculated annually. In the event acquiring shares would result in a violation of our Special Trading Policy and Procedures, the director is required to comply with the guidelines as soon as reasonably feasible.
•
Prohibitions on Hedging and Pledging. Members of our Board and our officers and staff members are prohibited from trading in any interest or position relating to the future price of our securities, such as a put, call or short sale, or using our stock as collateral for margin loans. The following table sets forth information regarding the non-employee director compensation program during fiscal 2023. Any member of the Board who is also an employee (for example, Mr. Overton) does not receive additional compensation for service on the Board or its committees. | | | Board of Directors Fees(1) | | | | Fiscal 2023 | | | | | | Annual fee | | | | | $ | 100,000 | | | | | | | Annual equity grant or cash payment in lieu of equity grant(2) | | | | | $ | 115,000 | | | | | | | Lead Director annual fee | | | | | $ | 25,000 | | | | | | | Audit Committee Chair annual fee | | | | | $ | 15,000 | | | | | | | Compensation Committee Chair annual fee | | | | | $ | 12,500 | | | | | | | Governance Committee Chair annual fee | | | | | $ | 10,000 | | | |
(1)
All fees and cash payments are payable in equal monthly installments, as earned, following the end of each calendar month. (2)
For fiscal 2023, eligible Independent Directors had the option to irrevocably elect in the prior year to receive either (i) an equity grant of fully vested shares of Company stock immediately following the annual shareholders meeting or (ii) a cash payment in lieu of such equity grant payable in equal monthly installments, as earned, following the end of each calendar month. Any Independent Director who has not acquired a sufficient number of shares of Company stock to satisfy the Company’s stock ownership guidelines (except in the case of a new director, who must acquire the required number of shares within five years of their appointment) is not eligible to receive the cash payment in lieu of equity and will receive their annual equity award in fully-vested common shares determined by dividing $115,000 by the closing price of the Company’s stock on the date of the award until he or she satisfies such guidelines. The following table sets forth certain information regarding the compensation earned by each non-employee director who served on our Board in fiscal 2023. Mr. Overton, as our employee, is not a non-employee director and is not paid additional compensation for his services on our Board. None of our non-employee directors held stock options or restricted stock as of the end of fiscal 2023. | | | Name | | | | Fees earned or
paid in cash ($) | | | | Stock Awards
($)(1) | | | | Change in
Pension Value
and Non-qualified
Deferred
Compensation
Earnings(2) | | | | Total ($) | | | | | | Edie A. Ames(3) | | | | | $ | 215,000 | | | | | | | — | | | | | | $ | 13,500 | | | | | | $ | 228,500 | | | | | | | Alexander L. Cappello(4) | | | | | $ | 119,500 | | | | | | $ | 115,000 | | | | | | | N/A | | | | | | $ | 234,500 | | | | | | | Khanh (“Connie”) Collins(4) | | | | | $ | 107,000 | | | | | | $ | 115,000 | | | | | | | N/A | | | | | | $ | 222,000 | | | | | | | Adam S. Gordon(4) | | | | | $ | 107,000 | | | | | | $ | 115,000 | | | | | | | N/A | | | | | | $ | 222,000 | | | | | | | Jerome I. Kransdorf | | | | | $ | 250,000 | | | | | | | — | | | | | | $ | 51,437 | | | | | | $ | 301,437 | | | | | | | Janice Meyer(4) | | | | | $ | 107,000 | | | | | | $ | 115,000 | | | | | | | N/A | | | | | | $ | 222,000 | | | | | | | Laurence B. Mindel | | | | | $ | 215,000 | | | | | | | — | | | | | | | N/A | | | | | | $ | 215,000 | | | | | | | David B. Pittaway(4) | | | | | $ | 176,000 | | | | | | $ | 57,500 | | | | | | | N/A | | | | | | $ | 233,500 | | | | | | | Herbert Simon | | | | | $ | 215,000 | | | | | | | — | | | | | | | N/A | | | | | | $ | 215,000 | | | |
(1)
The amounts in this column represent the grant date fair value, computed in accordance with the Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 718, of grants of fully vested shares of stock made to the applicable director in 2023. See Note 15 of the Notes
to Consolidated Financial Statements in our Annual Report for information, including assumptions made, regarding the valuation of equity awards. (2)
The amount in this column includes the actuarial present value of the accumulated benefit under all defined benefit and actuarial pension plans (including supplemental plans) and above market or preferential earnings on compensation that is deferred on a basis that is not tax-qualified, including earnings on non-qualified defined contribution plans. (3)
All or a portion of these fees were paid into a non-qualified deferred compensation plan account administered under The Cheesecake Factory Incorporated Executive Savings Plan. (4)
Amounts reported in the “Fees earned or paid in cash” column include payments made to eligible non-employee directors for their increased tax liability resulting from the late issuance of annual equity awards in 2023 in the amount of $7,000 to each of Mr. Cappello, Ms. Collins, Mr. Gordon and Ms. Meyer and $3,500 to Mr. Pittaway. Due to administrative oversight, the automatic equity grants to eligible Independent Directors were not issued until July 2023 instead of immediately following the annual shareholders meeting in June 2023. To compensate eligible Independent Directors for their increased tax liability resulting from the late issuance of these shares, in October 2023 we made a $3,500 cash payment to Mr. Pittaway and cash payments of $7,000 to each of Mr. Cappello, Ms. Collins, Mr. Gordon and Ms. Meyer. Indemnification of Officers and Directors As permitted by the Delaware General Corporation Law (the “DGCL”), our Certificate of Incorporation limits the personal liability of our directors for monetary damages for breach of fiduciary duty of care as a director. Should the shareholders vote to approve Proposal 2, our Certificate of Incorporation would limit the personal liability of our officers for monetary damages for breach of the fiduciary duty of care as an officer for direct claims brought by a shareholder, as permitted by the DGCL. Liability for our officers and directors is not eliminated for (a) any breach of the director’s or officer’s duty of loyalty to us or our stockholders, (b) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) unlawful payment of dividends or stock purchases or redemptions pursuant to Section 174 of the DGCL, and/or (d) any transaction from which the director or officer derived an improper personal benefit. Our Certificate of Incorporation also provides that we shall indemnify and advance indemnification expenses on behalf of all directors and officers of ours to the fullest extent permitted by Delaware law. Article VIII of our Bylaws also requires us, subject to certain limitations, to indemnify directors and officers and advance expenses. The indemnification and advancement of expenses provisions of Article VIII are not exclusive of any other rights of indemnification or advancement of expenses. We have also entered into indemnification agreements with all of our directors and Named Executive Officers. Each indemnification agreement requires us to indemnify and hold harmless the director or Named Executive Officer to the fullest extent authorized by the laws of the State of Delaware. Each indemnification agreement also requires us, subject to specific terms and conditions, to advance expenses to the director or officer. Each indemnification agreement also sets forth various procedures and definitions with respect to indemnification and advancement of expenses. We also are obligated to maintain directors’ and officers’ liability insurance. With specified exceptions, we are not obligated to provide indemnification or advance expenses with respect to actions initiated by the director or officer or to indemnify the director or officer in connection with proceedings by us to enforce non-compete or non-disclosure agreements. To the extent the provisions of the indemnification agreements exceed the indemnification permitted by applicable law, such provisions may be unenforceable or may be limited to the extent they are found by a court of competent jurisdiction to be contrary to public policy. Policies Regarding Review, Approval or Ratification of Transactions with Related Persons In accordance with its charter, our Audit Committee reviews and approves any proposed transactions with a “related person.” Any related person transaction will be disclosed in the applicable filing as required by the rules promulgated by the SEC. For purposes of these procedures, “related person” and “transaction” have the meanings as defined in Item 404 of Regulation S-K.
We had no reportable transactions with related persons required to be disclosed under Item 404 of Regulation S-K since the beginning of fiscal 2023. Policies Regarding Hedging, Short Sales, Publicly Traded Derivatives, Margin Accounts and Pledges The Board believes that ownership of the Company’s stock by the Company’s Board members, executive officers, and other staff members promotes alignment of interest with stockholders. The Board recognizes that transactions that are designed to hedge, establish downside price protection or otherwise offset declines in the market value of the Company’s stock owned by such persons can disrupt this alignment, undermine stock ownership guidelines and encourage imprudent risk-taking. The Board also recognizes that pledging the Company’s stock as collateral for indebtedness can be adverse to the interests of the Company’s stockholders because it creates the risk of unplanned and forced sales that could adversely impact the value of the Company’s stock. For these reasons, we have a policy prohibiting our Board members, executive officers and all other employees from engaging in short-term or speculative transactions in Company securities, including short sales and other forms of hedging (e.g., zero-cost collars and forward sale contracts), and trading in puts, calls or other derivative securities of the Company (other than stock purchases and sales in the listing market). In addition, no Board member or employee may hold the Company’s securities in a margin account or pledge such securities as collateral for a loan.
PROPOSAL TWO
Approval and Adoption of the Restated Certificate of Incorporation of The Cheesecake Factory Incorporated to Provide for the Exculpation of Officers as Permitted by the DGCL The State of Delaware recently amended the DGCL to permit Delaware companies to exculpate their officers, in addition to their directors, for personal liability in certain limited circumstances. In light of this update, we are proposing to amend and restate the current Certificate of Incorporation of The Cheesecake Factory Incorporated (the “Certificate of Incorporation”) to add a provision exculpating certain of the Company’s officers from liability in specific circumstances, as permitted by the DGCL. The DGCL only permits, and our proposed Restated Certificate of Incorporation (as defined below) would only permit, exculpation for direct claims (as opposed to derivative claims made by stockholders on behalf of the corporation) and would not apply to breaches of the duty of loyalty, acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, or any transaction in which the officer derived an improper personal benefit. The rationale for so limiting the scope of liability is to strike a balance between stockholders’ interest in accountability and their interest in the Company being able to attract and retain quality officers to work on its behalf. Officer exculpation is intended to enable our officers to exercise their business judgment in furtherance of the interests of our stockholders while minimizing the potential for distraction posed by frivolous lawsuits and costs which are often borne by the Company, either directly, through indemnification, or indirectly through higher insurance premiums. Taking into account the limited claims for which officers’ liability would be exculpated, and the benefits, the Board determined that it is in the best interest of the Company and our stockholders to amend and restate the Certificate of Incorporation as described herein. Accordingly, we ask our stockholders to vote on the following resolution: “RESOLVED, that the Company’s stockholders approve the amendment and restatement of the Certificate of Incorporation to add a new Article FOURTEENTH, which shall read in its entirety as follows: FOURTEENTH: To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, an officer of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as an officer. No amendment to or repeal of this Article FOURTEENTH shall apply to or have any effect on the liability or alleged liability of an officer of the Corporation for or with respect to any acts or omissions of such officer occurring prior to such amendment or repeal.” Required Vote. The approval and adoption of the amendment and restatement of the Certificate of Incorporation of The Cheesecake Factory Incorporated to provide for the exculpation of officers as permitted by the DGCL requires the affirmative vote of the majority of the outstanding shares. Abstentions will have the same effect as votes “AGAINST” the proposal. The adoption of the Restated Certificate of Incorporation is not a routine matter under applicable rules. As a result, there may be broker non-votes on Proposal 2. Broker non-votes will have the same effect as votes “AGAINST” the proposal. If approved, these changes to our Certificate of Incorporation will become effective upon the filing of a Restated Certificate of Incorporation, including the new Article FOURTEENTH (the “Restated Certificate of Incorporation”) with the Secretary of State of the State of Delaware, which shall be filed promptly after the Annual Meeting of Stockholders. A copy of the Restated Certificate of Incorporation contemplated by Proposal 2 marked to show changes against our current Certificate of Incorporation is attached hereto as Appendix B. THE BOARD UNANIMOUSLY RECOMMENDS A VOTE FOR THE APPROVAL AND ADOPTION OF THE RESTATED CERTIFICATE OF INCORPORATION OF THE CHEESECAKE FACTORY INCORPORATED TO PROVIDE FOR THE EXCULPATION OF OFFICERS AS PERMITTED BY THE DGCL.
PROPOSAL THREE
Ratification of Selection of Independent Registered Public Accounting Firm The Audit Committee of our Board (“Audit Committee”) has selected KPMG LLP (“KPMG”) as our independent registered public accounting firm to conduct the audit of our booksconsolidated financial statements and recordsinternal control over financial reporting for the fiscal year ending December 28, 2021.31, 2024. KPMG has served as our independent registered public accounting firm since fiscal year 2018. Representatives of KPMG are expected to be present at the Annual Meeting to respond to appropriate questions and to make a statement should they so desire. Although our governing documents do not require us to submit this matter to stockholders, the Board believes that asking stockholders to ratify the appointment is consistent with best practices in corporate governance. If stockholders do not ratify the selection of KPMG, the Audit Committee will regard such vote as a direction to consider the selection of a different independent registered public accounting firm. Even if the selection of KPMG is ratified by the stockholders, the Audit Committee has the discretion to select a different independent registered public accounting firm at any time if it determines that a change would be in our and our stockholders’ best interests. Independent Registered Public Accounting Firm Fees and Services. The following table shows the fees for professional services by KPMG for the audit of our annual financial statements for the fiscal years ended December 29, 2020January 2, 2024 and December 31, 2019,January 3, 2023, and fees for other services rendered by KPMG during that period. There were no fees related to tax compliance, advice or planning. | | | Fiscal 2020 | | Fiscal 2019 | | | Fiscal 2023 | | Fiscal 2022 | | Audit Fees(1) | | | $ | 1,696,610 | | | | $ | 1,618,100 | | | | | $ | 1,408,475 | | | | $ | 1,380,788 | | | All Other Fees(2) | | | | 36,498 | | | | | 1,780 | | | | | | 19,077 | | | | | 161,165 | | | | Total Fees | | | $ | 1,733,108 | | | | $ | 1,619,880 | | | | | $ | 1,427,552 | | | | $ | 1,541,953 | | |
(1)
Audit Fees represent fees for the audit of our annual financial statements, reviews of the related quarterly financial statements and services normally provided by the independent accountants in connection with statutory and regulatory filings or engagements, including reviews of documents filed with the SEC and costs associated with our acquisition of North Italia and Fox Restaurant Concepts LLC.SEC. (2)
All Other Fees represent fees for access to KPMG’s accounting literature research tool and accounting advisory services. Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of Our Independent Registered Public Accounting Firm. The Audit Committee is responsible for appointing, setting compensation for and overseeing the work of our independent registered public accounting firm. The Audit Committee also evaluates our independent registered public accounting firm’s lead engagement partner, who is rotated every five years. The Audit Committee’s charter grants to the Audit Committee sole authority to approve the independent auditor’s fee arrangements and other terms of service, and to preapprove any permitted non-audit services to be provided by the independent auditor. The charter allows the Audit Committee to delegate the preapproval of audit and permitted non-audit services to one or more of its members, provided that such members shall report any such approvals to the full Audit Committee at its next regularly scheduled meeting. The Audit Committee considers whether such services are consistent with SEC rules on auditor independence as well as whether the independent auditor can provide the most effective and efficient service, for reasons such as familiarity with our business, staff members, culture, accounting systems, risk profile and other factors, and input from our management. The Audit Committee delegated the authority to address any requests for pre-approval of services between Audit Committee meetings to its Chair, provided that the amount of such fees for both audit and non-audit accounting services requested does not exceed $25,000 per fiscal quarter. The Chair is also required to report any pre-approval decisions to the Audit Committee at its next scheduled meeting. The Audit Committee’s charter does not provide the Audit Committee with authority to delegate to management the Audit Committee’s responsibility to pre-approve permitted services of the independent registered public accounting firm. The waiver of pre-approval provisions set forth in applicable rules of the SEC was not used to approve any of the services described above in fiscal 2020. 2023.
Required Vote. The ratification of the appointment of KPMG as our independent registered public accounting firm for fiscal 20212024 requires the affirmative vote of a majority of the shares of common stock and Series A preferred stock, voting together as a single class (and on an as-converted basis, in the case of the Series A preferred stock, subject to the Ownership Limitation), present in person (including
(including via the virtual Annual Meeting)platform) or by proxy and entitled to vote on the proposal at the Annual Meeting. Abstentions will be included in the number of shares present and entitled to vote on this Proposal 23 and will have the effect of a vote “AGAINST” Proposal 2. Broker non-votes will not be considered as present and entitled to vote on this Proposal 2. Therefore, a broker non-vote will not be counted and will have no effect on this Proposal 2 other than to reduce the number of affirmative votes required to approve this proposal.3. This Proposal 23 is considered a routine matter under applicable rules. A broker or other nominee may generally vote on routine matters, and therefore no broker non-votes are expected on Proposal 2.3. THE BOARD UNANIMOUSLY RECOMMENDS A VOTE FOR THE RATIFICATION OF THE SELECTION OF KPMG AS THE COMPANY’S INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR FISCAL 2021.2024.
REPORT OF THE AUDIT COMMITTEE OF THE BOARD The following Audit Committee report does not constitute soliciting material and is not deemed filed or incorporated by reference into any other Company filing under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, except to the extent the Company specifically incorporates this Audit Committee report by reference thereto. As more fully described in its charter, the Audit Committee oversees our financial reporting and internal control processes on behalf of the Board, as well as the independent audit of our consolidated financial statements by the Company’s independent registered accounting firm. The Audit Committee is responsible for appointment, compensation and oversight of our independent registered accounting firm, including fee negotiation. When assessing the independence of the Company’s independent registered accounting firm, the Audit Committee will consider non-audit fees and services. The Audit Committee approved the engagement of KPMG LLP (“KPMG”) as the Company’s independent registered accounting firm for fiscal 2023, and the stockholders ratified that selection at the 2023 annual meeting of stockholders. Management has the primary responsibility for the Company’s financial statements and the financial reporting process, including our system of internal controls. In fulfilling its oversight responsibilities, the Audit Committee reviewed and discussed our audited financial statements for fiscal 2023 with management and KPMG. Management and KPMG represented to the Audit Committee that the Company’s consolidated financial statements were prepared in accordance with generally accepted accounting principles. The Audit Committee reviewed with KPMG such other matters as are required to be discussed with the Audit Committee under generally accepted auditing standards, including the matters required to be discussed by Public Company Accounting Oversight Board (“PCAOB”) Auditing Standard No. 1301 “Communications with Audit Committees.” In addition, the Audit Committee has discussed with KPMG the auditors’ independence from management and the Company, including the matters in the written disclosures from the independent auditors required by applicable requirements of the PCAOB regarding independent accountant’s communications with the audit committee concerning independence. The Audit Committee discussed with KPMG the overall scope and plans for its audit. The Audit Committee periodically met with KPMG, with and without management present, to discuss the results of its audit, its evaluation of our internal controls and the overall quality of our financial reporting. Based upon these reviews and discussions, the Audit Committee approved the recommendation of our management that the audited consolidated financial statements for the fiscal year ended January 2, 2024 be included in the Company’s Annual Report on Form 10-K filed with Securities and Exchange Commission. | | Dated: , 2024 | | | Respectfully submitted, | | | | | | | David B. Pittaway, Chair
Alexander L. Cappello
Janice L. Meyer | |
PROPOSAL THREE
FOUR
Non-Binding, Advisory Vote onto Approve Executive Compensation In accordance with Section 14A of the Securities Exchange Act of 1934, as amended (“Exchange“Exchange Act”), and as a matter of good corporate governance practices, we are asking our stockholders to approve, on a non-binding, advisory basis, the compensation of our Named Executive Officers as disclosed pursuant to the compensation disclosure rules of the SEC (commonly referred to as a “say-on-pay vote”). Accordingly, you may vote on the following resolution at the 20212024 Annual Meeting: “RESOLVED, that the compensation paid to the Company’s Named Executive Officers as disclosed pursuant to the compensation disclosure rules, including the Compensation Discussion and Analysis, the accompanying compensation tables, and the related narrative disclosure contained in this Proxy Statement, is hereby APPROVED.” As described in detail in the “Compensation Discussion and Analysis” section of this Proxy Statement, our compensation programs are designed to motivate our executives to drive the success of our Company. We believe that our compensation programs play a material role in our ability to achieve strong financial results, even during difficult economic times, and attract, retain and motivate a highly experienced and successful team to manage our Company. Our compensation programs reward sustained performance that is aligned with long-term stockholder interests, with a balance of: •
short-termShort-term incentives (including annual cash incentives tied to pre-established adjusted earnings before interest, taxes, depreciation, amortization and rent (“EBITDAR”), adjusted Gross Contribution (bakery division only) and strategic performance goals),
•
long-term incentives (including stock options restricted stock and restricted stock, units, that each generally fully vest over five years; with 50% of the annual grant value being comprised of restricted stock subject to achievement of pre-established earningstotal annual revenue growth, adjusted average annual sales per share (“EPS”), sales perproductive square foot and adjusted annual controllable profit performance conditions for three fiscal years)over a three-year performance period), and •
sound governance features to mitigate the potential for compensation relatedcompensation-related risk, including executive stock ownership guidelines.guidelines and a clawback policy. Stockholders are encouraged to read the “Compensation Discussion and Analysis,” the accompanying compensation tables, and the related narrative disclosure contained in this Proxy Statement for a full description of our executive compensation programs. This vote is advisory only and non-binding. The Board and the Compensation Committee, which is comprised solely of independent directors, will consider the outcome of this vote when making future executive compensation decisions to the extent appropriate. We currently ask our stockholders to approve, on a non-binding, advisory basis, the compensation of our Named Executive Officers on an annual basis, and we expect to hold the next such vote at the 20222025 annual meeting of stockholders. Required Vote. The approval of the resolution set forth above requires the affirmative vote of a majority of the shares of common stock and Series A preferred stock, voting together as a single class (and on an as-converted basis, in the case of the Series A preferred stock, subject to the Ownership Limitation), present in person (including via the virtual Annual Meeting)platform) or by proxy and entitled to vote on the proposal at the Annual Meeting. Abstentions will be included in the number of shares present and entitled to vote on this Proposal 3 and will have the same effect as a vote “AGAINST” Proposal 3. Broker non-votes will not be considered as present and entitled to vote on this Proposal 3. Therefore, a broker non-vote will not be counted and will have no effect on this Proposal 3 other than to reduce the number of affirmative votes required to approve this proposal. THE BOARD UNANIMOUSLY RECOMMENDS A VOTE FOR THE APPROVAL,
ON A NON-BINDING, ADVISORY BASIS, OF THE COMPENSATION PAID TO THE COMPANY’S
NAMED EXECUTIVE OFFICERS.
PROPOSAL FOUR
Approval, Pursuant to Nasdaq Listing Rule 5635, the Issuance of Shares of Common Stock in Excess of the Ownership Limitation upon Conversion of the Outstanding Shares of our Series A Preferred Stock
On April 20, 2020, we entered into a Subscription Agreement with RC Cake Holdings LLC (“Roark”), an affiliate of Roark Capital Group. Pursuant to the Subscription Agreement, we sold 200,000 shares (the “Purchased Shares”) of the Series A Convertible Preferred Stock, par value $0.01 per share (the “Series A preferred stock”), to Roark for an aggregate purchase price of $200 million.
The holder of Series A preferred stock has the right, at its option, to convert its Series A preferred stock, in whole or in part, into fully paid and non-assessable shares of common stock at a conversion price equal to $22.23 per share. The number of shares issuable upon conversion of the Series A preferred stock is equal to the quotient obtained by dividing (i) the sum of (A) the Liquidation Preference, plus (B) all accrued but unpaid dividends to the extent not already included in the Liquidation Preference, by (ii) the conversion price. The conversion price is subject to customary anti-dilution adjustments, including in the event of any stock split, stock dividend, recapitalization or similar events. The conversion price is also subject to adjustment for certain antidilutive offerings occurring before April 20, 2021. Pursuant to the terms of the Certificate of Designations for the Series A preferred stock (the “Certificate of Designations”), unless and until approval of our stockholders is obtained as contemplated by Nasdaq Listing Rule 5635, no holder of Series A preferred stock may convert shares of Series A preferred stock through either an optional or a mandatory conversion into shares of our common stock if and solely to the extent that such conversion would result in such holder beneficially owning in excess of 19.9% of then outstanding common stock (such limitation, the “Ownership Limitation”). We have the right to settle any conversion at the request of a holder of Series A preferred stock in cash. As of March 15, 2021, disregarding the Ownership Limitation, the Series A preferred stock was convertible into 9,603,456 shares of our common stock or 17.1% of our outstanding common stock after taking into account the conversion of the Series A preferred stock into common stock.
We are asking stockholders to approve the issuance of shares of our common stock upon the conversion of our Series A preferred stock, in accordance with Nasdaq Listing Rule 5635 and as required under the Certificate of Designations, as described in more detail below.
Nasdaq Listing Rule 5635(b). Nasdaq Listing Rule 5635(b) requires stockholder approval prior to the issuance of securities when the issuance or potential issuance will result in a change of control of a company. Generally, a change of control is considered to occur when, as a result of the issuance, an investor or group would own, or have the right to acquire, 20% or more of the outstanding shares of common stock or voting power and such ownership or voting power would be the largest ownership threshold.
Certificate of Designations. The Certificate of Designations provides that we will use our reasonable best efforts to obtain at the Annual Meeting, but in no event later than June 30, 2021, stockholder approval of the issuance of shares of common stock upon the conversion of the Series A preferred stock, including by endorsing such approval in this Proxy Statement and related proxy materials.
Terms of the Series A Preferred Stock. The Series A preferred stock ranks senior to our common stock with respect to dividends and distributions on liquidation, winding-up and dissolution. Upon a liquidation, dissolution or winding up of the Company, each share of Series A preferred stock will be entitled to receive an amount per share equal to the greater of (i) the purchase price paid by Roark (without giving effect to any commitment fee), plus all accrued and unpaid dividends (the “Liquidation Preference”) and (ii) the amount that the holder of Series A preferred stock would have been entitled to receive at such time if the Series A preferred stock were converted into common stock.
The holder of Series A preferred stock is entitled to dividends on the Liquidation Preference at the rate of 9.5% per annum, payable in cash or, at our option, paid-in-kind. The holder of Series A preferred stock is also entitled to participate in dividends declared or paid on our common stock on an as-converted basis.
As noted above, the holder of Series A preferred stock has the right, at its option, to convert its Series A preferred stock, in whole or in part, into fully paid and non-assessable shares of common stock at a conversion price equal to $22.23 per share. The number of shares issuable upon conversion of the Series A preferred
stock is equal to the quotient obtained by dividing (i) the sum of (A) the Liquidation Preference, plus (B) all accrued but unpaid dividends to the extent not already included in the Liquidation Preference, by (ii) the conversion price in effect immediately before the close of business on the conversion date, which price was initially $22.23. The conversion price is subject to customary anti-dilution adjustments, including in the event of any stock split, stock dividend, recapitalization or similar events. The conversion price is also subject to adjustment for certain antidilutive offerings occurring before April 20, 2021. Pursuant to the Certificate of Designations, unless and until approval of our stockholders is obtained as contemplated by Nasdaq Listing Rule 5635, no holder of Series A preferred stock may convert shares of Series A preferred stock through either an optional or a mandatory conversion into shares of our common stock if and solely to the extent that such conversion would result in such holder beneficially owning more than the Ownership Limitation. We have the right to settle any conversion at the request of a holder of Series A preferred stock in cash. Assuming all shares of Series A preferred stock were converted into shares of our common stock on March 15, 2021, the holder of Series A preferred stock would be entitled to receive 9,603,456 million shares of our common stock.
Subject to certain conditions, we may, at our option, require conversion of all of the outstanding shares of Series A preferred stock to common stock if, for at least 20 trading days during the 30 consecutive trading days immediately preceding the date we notify the holder of Series A preferred stock of the election to convert, the closing price of the common stock is at least 200% of the conversion price. We will not exercise our right to mandatorily convert all outstanding shares of Series A preferred stock unless certain liquidity conditions with regard to the shares of common stock to be issued upon such conversion are satisfied.
We may redeem any or all of the Series A preferred stock for an amount equal to (i) 120% of the Liquidation Preference thereof at any time following the fifth anniversary but prior to the sixth anniversary of the date of the Subscription Agreement and (ii) 100% of the Liquidation Preference at any time on or following the sixth anniversary of the date of the Subscription Agreement, in each case, by delivering notice of redemption to such holders; provided, that such holders have the right to convert the Series A preferred stock immediately prior to and in lieu of such redemption. To the extent such holder elects to convert the Series A preferred stock in lieu of such redemption and the number of shares of common stock issuable upon such conversion would exceed 19.9% of the outstanding shares of common stock, and approval of this proposal has not been obtained as of such date, any portion in excess of such limit will remain outstanding as Series A preferred stock.
The holder of Series A preferred stock generally will be entitled to vote with the holders of the shares of our common stock on all matters submitted for a vote of holders of shares of common stock (voting together with the holders of shares of common stock as one class) on an as-converted basis, subject to the Ownership Limitation. Additionally, certain matters will require the approval of the majority of the outstanding shares of Series A preferred stock, voting as a separate class, including (i) the authorization, creation, increase in the authorized amount of, or issuance of any class or series of senior or parity equity securities or any security convertible into, or exchangeable or exercisable for, shares of senior or parity equity securities, (ii) amendments, modifications or repeal of any provision of our Certificate of Incorporation or of the Certificate of Designations that would adversely affect the rights, preferences or voting powers of the Series A preferred stock, (iii) certain business combinations and binding or statutory share exchanges or reclassifications involving the Series A preferred stock unless such events do not adversely affect the rights, preferences or voting powers of the Series A preferred stock and (iv) certain transactions with affiliates.
If we undergo a Change of Control (as defined in the Certificate of Designations), we will redeem, subject to conversion rights of the holder of the Series A preferred stock, all of our then-outstanding shares of Series A preferred stock for cash consideration equal to the greater of (i) the Liquidation Preference plus accumulated and unpaid dividends and (ii) the amount that such holder of Series A preferred stock would have been entitled to receive at such time if the Series A preferred stock were converted into common stock.
Interests of Related Parties. Certain of our affiliates have interests in this Proposal 4 that may be different from, or in addition to, the interests of our stockholders generally. Roark is the sole owner of our Series A preferred stock and has an interest in the approval of this Proposal 4, which will allow it to convert its shares of the Series A preferred stock to shares of our common stock and have the right to vote all of its shares of the Series A preferred stock. Additionally, our director Paul D. Ginsberg is the President of Roark Capital Group, an affiliate of Roark, and was designated by Roark as a director on our Board.
On April 20, 2020, David Overton, our Chief Executive Officer and Chairman of the Board, and his affiliated parties entered into an Acknowledgement and Support Agreement (the “Support Agreement”) with Roark. Pursuant to the Support Agreement, Mr. Overton and his affiliated parties have agreed to vote all of their respective shares at the Annual Meeting to approve, among other things, the issuance of common stock in connection with Roark’s conversion of Series A preferred stock. Mr. Overton and his affiliated parties will have the right to vote shares equal to % of the total outstanding voting power entitled to vote on Proposal Four. Shares held by Roark are not included in this calculation because they will not be entitled to vote on Proposal Four. Please see the section entitled “The Board and Corporate Governance—Series A Director—Voting and Support Agreements” in this Proxy Statement for additional information.
Effects if this Proposal 4 is Approved. If stockholders approve this Proposal 4, the Ownership Limitation will be eliminated and, as a result (i) we will be permitted to issue shares of common stock upon the conversion of Series A preferred stock, and (ii) the holder of Series A preferred stock will be entitled to vote its shares of Series A preferred stock, in each case without regard to the Ownership Limitation. The issuance of common stock upon the conversion of the Series A preferred stock will result in dilution to our stockholders, and would afford our stockholders a smaller percentage interest in our voting power, liquidation value and aggregate book value. The sale or any resale of the common stock issued upon conversion of the Series A preferred stock could cause the market price of our common stock to decline.
Effects if this Proposal 4 is Not Approved. If stockholders do not approve this Proposal 4, the Ownership Limitation will remain in effect and, as a result (i) we will not be permitted to issue shares of common stock upon the conversion of Series A preferred stock, (ii) the number of votes that may be cast by the holder of Series A preferred stock will be limited so that the Ownership Limitation is not exceeded, and (iii) if the Ownership Limitation is reached, we will be required to pay converting holders, in lieu of delivery of shares of common stock in excess of the Ownership Limitation, the cash value of such shares.
Required Vote. The approval, pursuant to Nasdaq Listing Rule 5635, of the issuance of shares of common stock in excess of the Ownership Limitation upon conversion of the outstanding shares of our Series A preferred stock requires the affirmative vote of a majority of the shares of common stock present in person (including via the virtual Annual Meeting) or by proxy and entitled to vote on the proposal at the Annual Meeting. In accordance with applicable rules of Nasdaq, the holder of the 200,000 shares of our Series A preferred stock is not entitled to vote such shares on this proposal. Abstentions will be included in the number of shares present and entitled to vote on this Proposal 4 and will have the same effect as a vote “AGAINST” Proposal 4. Broker non-votes will not be considered as present andshares entitled to vote on this Proposal 4. Therefore, a broker non-votenon-votes will not be counted and will have no effect on this Proposal 4 other than to reduce the number of affirmative votes required to approve this proposal.4.
THE BOARD UNANIMOUSLY RECOMMENDS A VOTE FOR THE APPROVAL, PURSUANT TO NASDAQ LISTING RULE 5635,
ON A NON-BINDING, ADVISORY BASIS, OF THE ISSUANCE OF SHARES OF COMMON STOCK IN EXCESS OFCOMPENSATION PAID TO THE OWNERSHIP LIMITATION UPON CONVERSION OF THE OUTSTANDING SHARES OF OUR SERIES A PREFERRED STOCK.COMPANY’S
NAMED EXECUTIVE OFFICERS.
FORWARD-LOOKING STATEMENTS
Certain information included in this Proxy Statement, including the sections entitled “Corporate Social Responsibility” (also referred to as “CSR”) and “Compensation Discussion and Analysis” (also referred to as “CD&A”) set forth below, may contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, as codified in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Exchange Act. These statements include, without limitation, statements regarding corporate social responsibility in this Proxy Statement and in our CSR report, the effects of the COVID-19 pandemic on our financial condition and our results of operations, including our expectations with respect to our ability to reopen and keep open our restaurants, financial guidance and projections and statements with respect to the acquisition of North Italia and Fox Restaurant Concepts LLC (“FRC”) and expectations regarding accelerated and diversified revenue growth as a result of the acquisition of North Italia and FRC, as well as expectations of our future financial condition, results of operations, sales, cash flows, plans, targets, goals, objectives, performance, growth potential, competitive position and business, and statements regarding our ability to: leverage our competitive strengths, including investing in or acquiring new restaurant concepts and expanding The Cheesecake Factory® brand to other retail opportunities; deliver comparable sales growth; provide a differentiated experience to customers; outperform the casual dining industry and increase our market share; leverage sales increases and manage flow through; manage cost pressures, including increasing wage rates, insurance costs and legal expenses, and stabilize margins; grow earnings; remain relevant to consumers; attract and retain qualified management and other staff; manage risks associated with the magnitude and complexity of regulations in the jurisdictions where our restaurants are located; increase stockholder value; find suitable sites and manage increasing construction costs; profitably expand our concepts domestically and in Canada, and work with our licensees to expand our concept internationally; support the growth of North Italia and other FRC restaurants; operate Social Monk Asian Kitchen and Grand Lux Cafe; and utilize our capital effectively. These forward-looking statements may be affected by various factors including: the rapidly evolving nature of the COVID-19 pandemic and related containment measures, including the potential for a complete shutdown of our restaurants, international licensee restaurants and our bakery operations; demonstrations, political unrest, potential damage to or closure of our restaurants and potential reputational damage to us or any of our brands; economic, public health and political conditions that impact consumer confidence and spending, including the impact of the COVID-19 pandemic and other health epidemics or pandemics on the global economy; acceptance and success of The Cheesecake Factory in international markets; acceptance and success of North Italia and the FRC concepts, Social Monk Asian Kitchen and other concepts; the risks of doing business abroad through Company-owned restaurants and/or licensees; foreign exchange rates, tariffs and cross border taxation; changes in unemployment rates; changes in laws impacting our business, including laws and regulations related to COVID-19 impacting restaurant operations and customer access to off- and on-premises dining; increases in minimum wages and benefit costs; the economic health of our landlords and other tenants in retail centers in which our restaurants are located, and our ability to successfully manage our lease arrangements with landlords; unanticipated costs that may arise in connection with a return to normal course of business, including potential negative impacts from furlough actions; the economic health of suppliers, licensees, vendors and other third parties providing goods or services to us; the timing of the resumption of our new unit development; compliance with debt covenants; strategic capital allocation decisions including any share repurchases or dividends; the ability to achieve projected financial results; economic and political conditions that impact consumer confidence and spending; impact of tax reform legislation; adverse weather conditions in regions in which our restaurants are located; factors that are under the control of government agencies, landlords and other third parties; the risk, costs and uncertainties associated with opening new restaurants; and other risks and uncertainties detailed from time to time in our filings with the SEC. Such forward-looking statements include all other statements that are not historical facts, as well as statements that are preceded by, followed by or that include words or phrases such as “believe,” “plan,” “will likely result,” “expect,” “intend,” “will continue,” “is anticipated,” “estimate,” “project,” “may,” “could,” “would,” “should” and similar expressions. These statements are based on our current expectations and involve risks and uncertainties which may cause results to differ materially from those set forth in such statements. Forward-looking statements speak only as of the dates on which they are made and we undertake no obligation to publicly update or revise any forward-looking statements or to make any other forward-looking statements, whether as a result of new information, future events or otherwise, unless required to do so by law. Investors are referred to the full discussion of risks and uncertainties associated with forward-looking statements and the discussion of risk factors contained in our latest Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K as filed with the SEC, which are available at www.sec.gov.
THE BOARD AND CORPORATE GOVERNANCE
Director Nominations Process
The Board has adopted “Policies and Procedures Regarding Board of Director Candidates” (the “Nominations Policy”), which describes the process by which candidates are selected for possible inclusion in the Board’s recommended slate of director nominees. Our Nominations Policy expresses the Board’s commitment to actively seek highly-qualified candidates possessing diversity of gender and ethnicity to include in the pool from which nominees are chosen. The Nominations Policy is available on our website at investors.thecheesecakefactory.com, by clicking on the link for “Governance.” The Board also considers stockholder guidelines, developments in state laws, and Nasdaq listing standards with respect to board diversity. The Governance Committee administers the Nominations Policy and is responsible for identifying candidates for nomination or appointment to the Board. To fulfill this function, the Governance Committee reviews, at least annually, the size and composition of the Board and its committees, including the number of directors eligible for election at the annual meeting of stockholders. The Governance Committee may solicit recommendations for nominees from directors, members of management or others. In addition, the Governance Committee will consider recommendations of a stockholder of record or beneficial owner that complies with the Nominations Policy.
Minimum Qualifications. The Nominations Policy contains the following minimum qualifications for candidates for nomination to the Board:
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Pursuant to our Bylaws, each candidate nominated by a stockholder must consent in writing to be named in our proxy statement as a nominee and to serve as a director of the Company if elected.
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Pursuant to our Bylaws, each candidate must agree that if elected he or she will submit an irrevocable resignation to our Company’s Secretary promptly following his or her election or reelection that will be effective upon (i) such director’s failure to receive a “majority vote” for reelection in any “uncontested election” (as those terms are defined in our Bylaws) at which he or she is subject to reelection; and (ii) acceptance of that resignation by the Board in accordance with the Bylaws and any policies and procedures adopted by the Board for such purposes.
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Each candidate shall be an individual who has demonstrated integrity and ethics in his or her personal and professional life and has established a record of professional accomplishment in his or her chosen field.
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Each candidate shall be prepared to represent the best interests of all of our stockholders and not just one particular constituency.
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Each candidate must be prepared to participate fully in Board activities, including (with respect to non-employee candidates) active membership on Board committee(s) if appointed as a committee member, and not have other personal or professional commitments that would, in the Governance Committee’s sole judgment, interfere with or limit his or her ability to do so.
Criteria for Evaluating Candidates; Diversity. As described in the Nominations Policy, our Board believes director diversity enhances dialogue in the boardroom, contributing to thorough analysis of proposals and informed decision-making. The Governance Committee seeks to further develop the diverse characteristics of the Board with the goal of enhancing the Board’s ability to adequately perform its responsibilities and adhere to good corporate governance practices.
In evaluating nominations, the Governance Committee will take into consideration the overall composition of the Board, the balance of different capabilities and overall diversity in its broadest sense including in the areas of personal and professional experiences, age, gender, ethnicity, geography, financial and managerial and operational knowledge; variety of opinions and perspectives; and other differentiating characteristics.
In addition, the Governance Committee is committed to actively seeking highly qualified candidates who reflect diversity of gender and ethnicity to include in the pool from which Board nominees are chosen, including candidates from non-executive corporate positions and non-traditional environments.
The Governance Committee will periodically review and assess the effectiveness of the practices used in considering potential director candidates. Following this review, the Governance Committee will present any recommendation for changes of the policy or protocols to the Board.
The Governance Committee will consider the following criteria, among other factors, in evaluating candidates for nomination in light of the size and composition of the Board and its committees:
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Satisfaction of the minimum qualifications established by the Governance Committee.
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Education and other training.
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Relevant personal and professional background, including financial, managerial and operational skills and knowledge and experience in both corporate and non-traditional environments, such as government, academia and non-profit organizations.
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Whether the candidate would qualify as an “independent” director as defined by Nasdaq’s listing standards.
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The candidate’s reputation for judgment and honesty.
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The existence of any of the relationships described in Item 407(e)(4) of Regulation S-K (“Compensation Committee Interlocks and Insider Participation”).
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The number and identity of any other boards of directors of which the candidate is a member.
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Other professional and personal commitments that could affect the candidate’s ability to serve.
Stockholder Recommendations to the Governance Committee for Nomination of Directors. The Nominations Policy provides that the Governance Committee will consider recommendations for nominations submitted by stockholders of record or beneficial owners. In order to give the Governance Committee enough time to evaluate a recommended candidate, the recommendation must be received by our Secretary at our principal executive offices no later than the 120th day before the date that our proxy statement was released to stockholders in connection with the previous year’s annual meeting of stockholders. With respect to the 2022 annual meeting of stockholders, recommendations must be received on or before December 17, 2021. The stockholder’s recommendation must include all of the following:
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The stockholder’s name, address and telephone number.
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The recommended candidate’s name, address and telephone number.
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The written consent of the recommended candidate to be named in our proxy statement and to serve as a director if nominated, elected or appointed, and qualified to serve.
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A description of all arrangements or understandings in connection with such recommendation between the stockholder and the recommended candidate or between the stockholder and any other person or persons (including their names).
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A description of any business, familial or other financial or personal relationship between the stockholder and the recommended candidate.
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Information regarding the recommended candidate as to each of the criteria identified above for evaluating recommendations.
Evaluation of Candidates. All qualified candidates identified through the process outlined above, including incumbents, will be evaluated based on the same criteria. If, based on the initial evaluation, a new candidate continues to be of interest, the Chair of the Governance Committee will interview the candidate and communicate his or her evaluation to the other committee members and the Chairman of the Board. Other members of the Governance Committee and senior management will conduct subsequent interviews. Ultimately, background and reference checks will be conducted, and the Governance Committee will meet to finalize its list of recommended candidates for consideration by the full Board. If an incumbent is nominated, the interview process may be abbreviated at the discretion of the Chair of the Governance Committee. If the Chair of the Governance Committee is being considered for re-nomination, the other Governance Committee members may appoint another member of the Governance Committee to head the review process for the Chair’s reconsideration.
Future Revisions to the Nominations Policy. The Governance Committee’s Nominations Policy is intended to provide a flexible set of guidelines for the effective functioning of the director nominations process. The Governance Committee intends to review this policy and procedure at least annually and anticipates that modifications will be necessary from time to time as our needs and circumstances evolve, and to conform with changes in applicable legal or listing standards.
Series A Director. Please see “—Series A Director” below for information regarding the right of the initial holder of the Series A preferred stock to designate a director for election to the Board.
General Nomination Right of All Stockholders. Stockholders may nominate one or more persons for election as a director of the Company at an annual meeting of stockholders if the stockholder complies with the advance notice, information and consent provisions contained in our Bylaws. Stockholder nominations for the election of directors may be made only by a stockholder of record on both the date of giving notice and on the record date for such meeting by giving timely written notice to our Secretary at our principal executive offices. Such notice must be received by the Secretary no less than 90 days nor more than 120 days prior to the anniversary date of the immediately preceding annual meeting of stockholders. If notice or prior public disclosure of the date of the annual meeting is given or made to the stockholders for a meeting date that is not within 30 days before or after the anniversary of the immediately preceding annual meeting of stockholders, notice by the stockholder will be timely if received not later than the close of business on the tenth day following the day on which such notice was mailed or such public disclosure was made, whichever is first, or no less than 90 days nor more than 120 days prior to the annual meeting. For further information on the timely nomination of a person for election as a director of the Company at the 2022 annual meeting of stockholders, see “Stockholder Proposals for the 2022 Annual Meeting of Stockholders.”
In the event we increase the number of directors to be elected and we make no public announcement at least 100 days prior to the first anniversary of the preceding year’s annual meeting that names all of the nominees for director or specifies the size of the increased Board, a stockholder’s notice will be considered timely, but only with respect to nominees for any new positions created by the increase, if the notice is delivered to, or mailed and received at, our principal executive offices (addressed to our Secretary) not later than ten days following the day on which we make the public announcement. In the case of a special meeting of stockholders called for the purpose of electing directors, notice will be timely if the stockholder provides written notice to our Secretary not later than the close of business on the tenth day following the day on which notice of the date of the special meeting was mailed or such public disclosure of the meeting date was made, whichever first occurs, or no less than 90 or more than 120 days prior to the meeting. The stockholder’s notice must include all of the information required by our Bylaws. If the stockholder provides a statement that the stockholder intends to deliver a proxy statement and form of proxy, the nomination may not be brought before the meeting unless the stockholder has delivered a proxy statement and form of proxy to a sufficient number of holders of a percentage of our voting shares to elect the nominee or nominees proposed by the stockholder.
The foregoing summary is not a complete description of the provisions of our Bylaws pertaining to stockholder nominations and proxies. Stockholders may obtain, without charge, a copy of our Bylaws upon written request to our Secretary at our principal executive offices. Our Bylaws are also available on our website at investors.thecheesecakefactory.com, by clicking on the link for “Governance.”
Qualifications of Current Directors and Director Nominees. The Governance Committee of the Board evaluates the qualifications of our director nominees prior to each annual meeting of stockholders. As part of this evaluation process, the Governance Committee reviews the current composition of the Board and assesses whether the qualifications of each director continue to meet the Governance Committee’s requirements for Board service. The following is a description of the particular experience, qualifications, attributes and skills that led the Governance Committee to recommend, and the Board to nominate, each person listed below as a director of the Company.
Our Board of Director Nominees
The Governance Committee recommended, and our Board nominated, eight of our current directors for re-election at the Annual Meeting to serve a one-year term expiring at the 2022 annual meeting of
stockholders or until their respective successors shall be elected and qualified. At the Annual Meeting, proxies cannot be voted for a greater number of individuals than the eight nominees named in Proposal 1 to this Proxy Statement.
Paul D. Ginsberg is a current director who was designated by Roark pursuant to the Certificate of Designations for the Series A preferred stock. At the Annual Meeting, the holder of Series A preferred stock will vote separately, as a class, on the election of Mr. Ginsberg. The holders of common stock do not vote on the election of Mr. Ginsberg. If Mr. Ginsberg unexpectedly becomes unavailable before election, or we are notified that a substitute nominee has been selected, votes will be cast pursuant to the authority granted by the proxies from the holder of the Series A preferred stock for the person who may be designated as a substitute nominee. Please see “—Series A Director” below for more information.
David Overton
Director since 1992
David Overton, age 75, has served as our Chairman of the Board and Chief Executive Officer since our incorporation in 1992. He co-founded the Company with his parents, Evelyn and Oscar Overton. Mr. Overton created the namesake concept and opened the first The Cheesecake Factory restaurant in 1978 in Beverly Hills, California. He has grown The Cheesecake Factory® into an international brand and created three other concepts, Grand Lux Cafe®, RockSugar Southeast Asian Kitchen® and Social Monk®. Under Mr. Overton’s leadership, the Company recently acquired the North Italia brand and the balance of Fox Restaurant Concepts. Among Mr. Overton’s many professional honors, he has received the International Foodservice Manufacturers Association “Silver Plate Award,” recognizing the most outstanding and innovative talent in foodservice operations; the “Executive of the Year Award” from Restaurants & Institutions Magazine; the “MenuMasters Hall of Fame Award” and “Golden Chain Award” from Nation’s Restaurant News, for his outstanding contributions to menu design and foodservice research and development; the “Entrepreneur of the Year” in the Food Services category for the Los Angeles region by Ernst & Young, for his demonstrated excellence and extraordinary success in innovation, performance and personal commitment to The Cheesecake Factory and the communities our restaurants serve; and the “Leadership Roundtable-Industry Leadership Award.” Mr. Overton is also one of the founding members and directors of The Cheesecake Factory Oscar and Evelyn Overton Charitable Foundation (the “Foundation”), a 501(c)(3) qualified, non-profit charitable organization which raises funds for a variety of worthy causes and provides a means for our approximately 42,500 staff members to perform charitable work in their communities.
When evaluating Mr. Overton’s qualifications for continuation of his Board service, the Governance Committee and the Board considered Mr. Overton’s essential leadership role with us, his unique perspective and understanding of our mission, vision and values, the extent and depth of his knowledge and experience related to us and our concepts and the importance of Mr. Overton’s strategic vision.
Edie A. Ames
Director since 2016
Edie A. Ames, age 54, brings over 33 years of restaurant industry experience across the casual dining, fast-casual and fine dining segments. Ms. Ames currently serves as CEO of Tastes on the Fly Airport Restaurant Group, a San Francisco-based company. Previously, she held numerous leadership roles, including Chief Executive Officer of The Pie Hole, a Los Angeles based fast casual dining restaurant, President of The Counter and BUILT® Custom Burgers, Executive Vice President of Wolfgang Puck Catering, Chief Operating Officer of both Real Mex Restaurants and Del Frisco’s Restaurant Group, and President of Morton’s Restaurant Group. Earlier in her career she spent 11 years at California Pizza Kitchen, Inc. where she held positions of increasing responsibility.
When evaluating Ms. Ames’ qualifications for Board service, the Governance Committee and the Board considered Ms. Ames’ more than 33 years of restaurant industry experience, including operational experience, domestic and international licensing and franchise experience, numerous leadership roles with a variety of restaurant concepts across the casual dining, fast-casual and fine dining segments and her current status as an “independent director” under Nasdaq rules.
Alexander L. Cappello
Director since 2008
Alexander L. Cappello, age 65, has led several public and private companies over the past 46 years, including Cappello Global, LLC, a global investment bank, whose principals have transacted business in over 50 countries. He is also lead director of Virco Manufacturing Corporation (Nasdaq), Nano Financial Holdings, The Agnew Companies and Caldera Medical Corp, and an advisor to the board of Gusmer Enterprises. Mr. Cappello is a director of RAND Corporation’s Center for Middle East Public Policy, the Center for Global Risk and Security, and the RAND-Russia Forum. Mr. Cappello is a former Chairman of Intelligent Energy, PLC (London), Inter-Tel (Nasdaq), and Geothermal Resources Intl. (AMEX), and a former director of California Republic Bank.
When evaluating Mr. Cappello’s qualifications for continuation of his Board service, the Governance Committee and the Board considered Mr. Cappello’s extensive executive management and financial background, international business experience, international management and marketing experience, prior service as Lead Director of our Company, service as the Chair of our Compensation Committee and member of our Audit Committee, designation by our Board as an “audit committee financial expert,” former service on the boards of other public companies, including another restaurant company, corporate governance expertise and his current status as an “independent director” under Nasdaq rules.
Paul D. Ginsberg
Director since 2020
Paul D. Ginsberg, age 58, is the President of Roark Capital Group, having joined the firm in 2014. Prior to joining Roark, he was a partner, Co-Head of the Global Mergers & Acquisitions Group and a member of the Management Committee and Partnership Committee at Paul, Weiss, Rifkind, Wharton & Garrison LLP, an international law firm, which he joined in 1987 immediately upon graduating from law school. Mr. Ginsberg received his B.A., with honors in his major, magna cum laude, Phi Beta Kappa, from Union College and his J.D. from The University of Chicago Law School.
Mr. Ginsberg was appointed to the Board as the Series A Director (as defined below) pursuant to the Subscription Agreement described below. When evaluating Mr. Ginsberg’s qualifications for Board service, the Governance Committee and the Board considered his extensive legal and investment experience and his perspective as a significant investor in our Company.
Jerome L. Kransdorf
Director since 1997
Jerome I. Kransdorf, age 82, has more than 47 years of investment management experience. Mr. Kransdorf retired in 2014 as President of JaK Direct, a division of Muriel Siebert & Co., Inc. where he worked from 2001 to 2014. From 1997 to 2001, Mr. Kransdorf served as Senior Vice President of J. & W. Seligman & Co. Incorporated, an investment advisory firm. From 1959 to 1997, he was employed in investment and senior management positions at Wertheim & Co. and its successor companies. Mr. Kransdorf serves as our Lead Director.
When evaluating Mr. Kransdorf’s qualifications for continuation of his Board service, the Governance Committee and the Board considered Mr. Kransdorf’s more than 47 years’ of investment management experience, his depth of knowledge and experience specific to us, his current service as Lead Director, Chair of the Governance Committee and member of the Audit Committee and Compensation Committee and his current status as an “independent director” under Nasdaq rules.
Janice L. Meyer
Director since 2020
Janice L. Meyer, age 61, brings over 26 years of restaurant investment experience. She is currently Co-Founder and Managing Partner of Rellevant Partners, a private equity firm. Prior to founding Rellevant, Ms. Meyer was a Managing Director and Senior Restaurant Analyst in the Equity Research Department of Donaldson Lufkin & Jenrette, which was acquired by Credit Suisse Group AG (NYSE) in 2000. She was also
a Managing Director in the investment banking division of Morgan Stanley (NYSE). She was formerly a Director of Chopt Creative Salad Co. (now known as Founders Table Restaurant Group), a fast-casual restaurant group, and is currently a Director of Tillster, Inc., a food ordering and delivery technology company. She is also a trustee of the Windward School in New York.
When evaluating Ms. Meyer’s qualifications for Board service, the Governance Committee and the Board considered Ms. Meyer’s more than 26 years’ experience in the restaurant industry, extensive restaurant specific financial background, experience as a restaurant stock analyst and her current status as an “independent director” under Nasdaq rules.
Laurence B. Mindel
Director since 2012
Laurence B. Mindel, age 83, has more than 51 years of experience as a restaurant creator, developer and operator and is currently the Managing Partner of Poggio Trattoria, an award-winning Italian restaurant, and Copita Tequileria Y Comida, a “modern” Mexican restaurant, both located in Sausalito and Convivo, a “nomad Italian” restaurant in Santa Barbara, California. In 1970, he co-founded Spectrum Foods whose restaurant portfolio included, among others, California-based restaurants Ciao, Prego, MacArthur Park, Guaymas and Harry’s Bar. Following the acquisition of Spectrum Foods by Saga Corp. (NYSE) in 1984, Mr. Mindel served as President of Saga’s restaurant group where he directed the operations of more than 200 restaurants with combined revenue of over $375 million. When Saga was acquired in 1986, Mr. Mindel founded Il Fornaio, a restaurant and bakery company which became public in 1997 (Nasdaq) and was subsequently taken private in 2001. His professional honors include Nation’s Restaurant News “Golden Chain” award, International Foodservice Manufacturers Association “Gold Plate” award, Food Arts Magazine “Silver Spoon” award, Leadership Roundtable Conference award for Distinguished & Exemplary Leadership in the Food Service Industry and, in 1998, he was inducted into the California Restaurant Association’s Hall of Fame. In 1985, Mr. Mindel became the first American and the first person of non-Italian descent to be awarded the Caterina de Medici Medal from the Italian government, recognizing excellence in the preservation of Italian heritage outside of Italy.
When evaluating Mr. Mindel’s qualifications for continuation of his Board service, the Governance Committee and the Board considered Mr. Mindel’s more than 51 years’ experience in the restaurant industry, both as a concept creator and an operator, his experience guiding a publicly-traded restaurant company, his current service as a member of the Compensation Committee and Governance Committee, his prior service as a member of the Compensation Committee and his current status as an “independent director” under Nasdaq rules.
David B. Pittaway
Director since 2009
David B. Pittaway, age 69, is Vice Chairman, Senior Managing Director, Senior Vice President and Secretary of Castle Harlan, Inc., a private equity firm. He has been with Castle Harlan since 1987. Mr. Pittaway also has served as Vice Chairman and Senior Managing Director of Branford Castle, Inc., an investment company, since October 1986. From 1987 to 1998, Mr. Pittaway was Vice President, Chief Financial Officer and a director of Branford Chain, Inc., a marine wholesale company, where he is now a director and Vice Chairman. Previously, Mr. Pittaway was Vice President of Strategic Planning and Assistant to the President of Donaldson, Lufkin & Jenrette, Inc., an investment banking firm. Mr. Pittaway is a member of the boards of Shelf Drilling, Inc., and the Dystrophic Epidermolysis Bullosa Research Association of America. He was formerly a director of Bravo Brio Restaurant Group, Morton’s Restaurant Group, McCormick & Schmick’s Seafood Restaurants, and Dave & Busters, Inc. In addition, he is a director and co-founder of the Armed Forces Reserve Family Assistance Fund.
When evaluating Mr. Pittaway’s qualifications for continuation of his Board service, the Governance Committee and the Board considered his extensive financial and industry experience, including his service on audit committees of other public restaurant companies, his legal background and familiarity with SEC rules and regulations related to public companies, his service as a member (and now Chair) of our Audit Committee, his designation by our Board as an “audit committee financial expert” and his current status as an “independent director” under Nasdaq rules.
Herbert Simon
Director since 2011
Herbert Simon, age 86, is the Chairman Emeritus of the board of Indianapolis-based Simon Property Group, Inc., a member of the S&P 500 and the largest U.S.A. publicly-traded real estate investment trust. Mr. Simon has served on its board since 1993. Throughout his career, Mr. Simon has maintained a leadership position within the retail property industry by developing high profile retail facilities, including, but not limited to, The Forum Shops at Caesars, Roosevelt Field in Long Island, and The Fashion Centre at Pentagon City. Additional diversified business interests beyond real estate include ownership of a National Basketball Association’s franchise, the Indiana Pacers. Mr. Simon also served as the former Chairman of the National Basketball Association’s Board of Governors and continues to serve as a member of such board. Mr. Simon also is the owner of the Indiana Fever, a Women’s National Basketball Association franchise. He is also active in numerous community and civic organizations.
When evaluating Mr. Simon’s qualifications for continuation of his Board service, the Governance Committee and the Board considered Mr. Simon’s considerable domestic and international commercial real estate experience, including his tenure with Simon Property Group, Inc., a publicly-held real estate investment trust of which he is Chairman Emeritus and a member of the board of directors, his service as a member of the Compensation Committee and the Governance Committee, and his current status as an “independent director” under Nasdaq rules.
Except as set forth above, each nominee has been engaged in his or her principal occupation described above during the past five years. There are no family relationships between any of our directors or executive officers as defined under SEC rules.
Series A Director
As disclosed in our current report on Form 8-K filed with the SEC on April 20, 2020, on that date we entered into a Subscription Agreement (the “Subscription Agreement”) with RC Cake Holdings LLC (the “Roark”), an affiliate of Roark Capital Group, pursuant to which we sold 200,000 shares (the “Purchased Shares”) of Series A Convertible Preferred Stock, par value $0.01 per share (the “Series A preferred stock”), to Roark for an aggregate purchase price of $200 million.
In connection with this transaction, the Board increased the size of the Board to nine members and appointed Paul D. Ginsberg to the Board.
Pursuant to the terms of the Subscription Agreement, for so long as Roark has record and beneficial ownership of 25% of the Purchased Shares issued to it under the Subscription Agreement, Roark has the right to designate one member to the Board (the “Series A Director”). If Roark ceases to have such designation right, for so long as Roark has record and beneficial ownership of shares of our common stock issued upon conversion of the Purchased Shares (the “Conversion Shares”) that constitute at least 5% of the outstanding common stock, Roark will have the right to nominate one person for election to the Board. So long as Roark has the right to designate the Series A Director, the Series A Director will be designated by the holder of the Purchased Shares at each annual meeting of our stockholders, except that the initial Series A Director is Mr. Ginsberg.
Series A Director Compensation
As a non-employee director, Mr. Ginsberg participates in our non-employee director compensation program. Mr. Ginsberg is not subject to our stock ownership guidelines for directors.
Voting and Support Agreements
Under the Subscription Agreement, for so long as Roark has the right to designate or nominate one person for election to the Board, Roark has agreed to vote all of the Purchased Shares, the Conversion Shares or any other shares of common stock (i) in favor of each director nominated or recommended by the Board for election at any such meeting, and against the removal of any director who has been elected following nomination or recommendation by the Board, (ii) against any stockholder nomination for director that is not
approved and recommended by the Board for election at any such meeting, (iii) in favor of our “say-on-pay” proposal and any proposal by us relating to equity compensation that has been approved by the Board or the Compensation Committee of the Board (or any successor committee, however denominated) and (iv) in favor of our proposal for ratification of the appointment of our independent registered public accounting firm.
Under the Support Agreement with Roark, David Overton and his affiliated parties have agreed to vote all of their respective shares at the Annual Meeting to approve, among other things, the issuance of common stock in connection with Roark’s conversion of Series A preferred stock.
Director Independence
The Board has determined each of the following directors to be an “independent director” as defined under Nasdaq rules: Edie A. Ames; Alexander L. Cappello; Paul D. Ginsberg; Jerome I. Kransdorf; Janice L. Meyer; Laurence B. Mindel; David B. Pittaway; and Herbert Simon. In this Proxy Statement, each of these eight directors is referred to individually as an “Independent Director” and they are referred to collectively as the “Independent Directors.”
Board Leadership Structure and Lead Director
Our Chief Executive Officer, David Overton, also serves as Chairman of our Board. Mr. Overton, who founded the Company along with his parents, Oscar and Evelyn Overton, was the driving force behind the creation and opening of The Cheesecake Factory restaurant concept and has served in a combined role as Chief Executive Officer and Chairman since 1992. We believe this leadership structure enables Mr. Overton to function as the critical link between the Board and the operating organization. It also streamlines communications with and among the Board on key topics such as our strategic objectives, long-term planning and enterprise risk management.
In addition to Mr. Overton’s leadership on the Board, we determined that the appointment of an independent, lead director (“Lead Director”) would be appropriate in order to establish another layer of Board oversight, share certain responsibilities with, and facilitate communication between, our Chairman and our Independent Directors, and continue to follow best practices in corporate governance. To this end, the Board adopted a policy regarding the appointment of a Lead Director—one Independent Director who is selected annually by the Independent Directors. Mr. Kransdorf currently serves as Lead Director.
The Lead Director presides at executive sessions of the Independent Directors, serves as principal liaison between the Independent Directors and the Chairman, works with the Chairman to set and approve the schedule and agenda for meetings of our Board and its committees, directs the retention of advisors and consultants who report directly to the Board, serves as liaison for consultation and communication with stockholders, oversees the annual evaluation of our Board and its committees and evaluates, in cooperation with the Compensation Committee and all members of the Board, the Chief Executive Officer’s performance. For information on our Board leadership, including the role of our Chairman and Lead Director, please see the section below entitled “Corporate Governance Principles and Guidelines; Corporate Governance Materials Available on Our Website.”
Role of the Board in Risk Oversight
While the Audit Committee monitors risks related to our financial statements, the Board has determined that oversight of Company-wide risk should remain with the full Board due to the strategic nature of enterprise risk management and the Board’s desire to receive feedback from a broad spectrum of disciplines regarding management’s plans with respect thereto. The Board meets periodically with our management to review the effectiveness of processes for identifying and managing significant risks, including cyber security risk. The Board also reviews with management the strategic objectives that may be affected by identified risks, the level of appropriate risk tolerance, our plans for monitoring, mitigating and controlling risk, the effectiveness of such plans and our disclosure of risk.
Meeting Attendance
During fiscal 2020, the Board held 23 meetings and the Independent Directors held two executive sessions without management present. Meetings include both in-person and telephonic meetings. For information regarding committee composition and number of committee meetings held during fiscal 2020, please see the section below entitled “Committees of the Board of Directors.” All of our directors attended at least 90% of the aggregate number of meetings of the Board and the committees on which he or she served while they were on the Board in fiscal 2020.
Our Board members are encouraged to attend our annual meeting of stockholders and all of our directors were present virtually at the 2020 annual meeting.
Committees of the Board of Directors
The Board has three standing committees: the Audit Committee, the Compensation Committee and the Governance Committee. Committee membership as of the date of this Proxy Statement is as follows:
| | | Board Member | | | | Audit Committee | | | | Compensation
Committee | | | | Corporate
Governance and
Nominating
Committee | | | | | | David Overton, Chairman of the Board | | | | — | | | | — | | | | — | | | | | | Edie A. Ames | | | | — | | | | — | | | | Member | | | | | | Alexander L. Cappello | | | | Member* | | | | Chair | | | | — | | | | | | Paul D. Ginsberg | | | | — | | | | — | | | | — | | | | | | Jerome I. Kransdorf, Lead Director | | | | Member** | | | | Member | | | | Chair | | | | | | Janice L. Meyer | | | | Member | | | | — | | | | — | | | | | | Laurence B. Mindel | | | | — | | | | Member | | | | Member | | | | | | David B. Pittaway | | | | Chair* | | | | — | | | | — | | | | | | Herbert Simon | | | | — | | | | Member | | | | Member | | | | | | Number of Meetings in 2020 | | | | 13 | | | | 8 | | | | 5 | | |
*
Designated by the Board as an “audit committee financial expert.”
**
Mr. Kransdorf ceased being a member of the Audit Committee effective May 27, 2020.
The Board determined that each member of the committees of the Board in service for all of fiscal 2020 met the independence requirements applicable to those committees under SEC and Nasdaq rules. The Governance Committee recommends committee membership and chair assignments to the Board, which the Board considers when making committee membership and committee chair assignments at its meeting generally held in conjunction with each annual meeting of stockholders. Changes to committee assignments are also made from time to time during the course of the year, as deemed appropriate by the Board. The role of each committee is described below.
Audit Committee. The Audit Committee operates pursuant to a written charter and is primarily responsible for monitoring the quality and integrity of our financial statements and internal controls over
financial reporting; our compliance with legal and regulatory requirements; our independent registered accounting firm’s qualifications and independence; and the performance of our internal audit function and independent registered accounting firm. The Audit Committee provides an avenue of communication among our independent registered accounting firm, management, the internal audit function and the Board and issues the report of the Audit Committee required by the SEC to be included in this Proxy Statement. Our Vice President of Internal Audit reports directly to the Audit Committee and is responsible for conducting comprehensive audits of our internal financial controls and the operational effectiveness of related activities and systems.
The Audit Committee conducts an annual performance evaluation of its composition, compliance procedures, financial oversight responsibilities and other matters. The Audit Committee is directly responsible for the appointment, compensation, retention and oversight of the work of our independent registered accounting firm engaged to issue an audit report or perform other audit, review or attest services. The Audit Committee pre-approves the audit work, as well as all non-audit work, to be performed by our external auditors after considering its permissibility under SEC rules and its impact on our independent registered accounting firm’s independence. The Audit Committee also reviews material written communications our independent registered accounting firm may provide to management and discusses any concerns with the auditors and management.
Our Audit Committee also has oversight over the recoupment of any bonus awards paid to our executive officers if we were required by applicable law or applicable accounting or auditing principles to restate our financial statements to correct an accounting error in any interim or annual financial statement filed with the SEC as a result of material noncompliance with applicable financial reporting requirements and the bonus was directly based on such financial statements.
Pursuant to its charter, the Audit Committee reviews our policies and procedures relating to conflicts of interest and approves any proposed “related party transaction.” For this purpose, “related party transaction” means a transaction between the Company and a related person that is required to be disclosed pursuant to Item 404 of Regulation S-K adopted by the SEC. For a discussion of our policies with respect thereto, see “Policies Regarding Review, Approval or Ratification of Transactions with Related Persons” in this Proxy Statement. The Audit Committee conducts an annual evaluation of its charter.
Compensation Committee. The Compensation Committee operates pursuant to a written charter. The Compensation Committee is responsible for determining the compensation of our Chief Executive Officer and all of our other executive officers. The Compensation Committee reviews and approves all employment, retention and severance agreements for executive officers and causes to be prepared the report of the Compensation Committee required by the SEC to be included in this Proxy Statement. The Compensation Committee is directly responsible for the appointment, compensation and oversight of the work of any compensation advisor retained by the Compensation Committee. The Compensation Committee also makes recommendations to the Board concerning non-employee director compensation.
The Compensation Committee regularly reviews and discusses with management the Company’s compensation policies to assess any risks reasonably likely to have a material adverse effect on the Company. The Compensation Committee is also tasked with overseeing or making recommendations to the Board with respect to: (i) stock ownership guidelines for executive officers and monitoring compliance therewith; (ii) policies governing “insider” trading, hedging and pledging of Company stock and reviewing compliance therewith; and (iii) any clawback policies. The Compensation Committee also advises the Board on management proposals to stockholders on executive compensation matters, including advisory votes on executive compensation and frequency of such votes, and proposals received from stockholders on executive compensation matters. The Compensation Committee is charged with reviewing the results of such votes and considering any implications in connection with the Compensation Committee’s ongoing determinations and recommendations regarding the Company’s executive compensation policies and practice.
The Compensation Committee approves and administers our incentive compensation programs, including our long-term equity and short-term bonus incentive plans. The Compensation Committee makes recommendations to the Board with respect to incentive and equity compensation plan structure and periodically reviews and makes recommendations concerning existing or new executive compensation, performance incentives, employee benefits, stock plans and management perquisites. The Compensation
Committee authorizes and approves all grants of equity compensation to our employees under our equity compensation plan. See “Oversight of Named Executive Officer Compensation” for additional information regarding our process for determining executive compensation, including the role of Frederic W. Cook & Co., Inc., the Compensation Committee’s independent compensation consultant, and the Chief Executive Officer. The Compensation Committee conducts an annual evaluation of its charter.
Governance Committee. The Governance Committee operates pursuant to a written charter. The Governance Committee is responsible for evaluating issues and developments related to corporate governance and making recommendations to the Board with respect to corporate governance standards, corporate governance proposals from stockholders and the establishment and composition of committees of the Board. The Governance Committee is responsible for overseeing and recommending programs and activities for the continuing education of directors. The Governance Committee also identifies potential candidates for nomination or appointment as directors and makes recommendations to the Board concerning nominees to be presented for stockholder approval and to fill any vacancies. The Governance Committee assists the Chief Executive Officer in succession planning for key executive positions. The Governance Committee conducts an annual evaluation of its charter.
Committee Charters. All of our committee charters are available on our website. For information on where to access these documents, please see the section entitled “Corporate Governance Principles and Guidelines; Corporate Governance Materials Available on Our Website.”
Designation of Audit Committee Financial Experts
With the assistance of our outside legal counsel, the Board has determined that David B. Pittaway and Alexander L. Cappello are each an “audit committee financial expert” as such term is defined in Item 407(d)(5)(ii) of Regulation S-K adopted by the SEC.
Corporate Governance Principles and Guidelines; Corporate Governance Materials
Available on Our Website
Our Board is committed to ethical business practices and believes that good corporate governance is important to ensure that we are managed for the long-term benefit of our stockholders. In the spirit of this commitment, the Board has adopted a “Summary of Corporate Governance Principles and Guidelines” (“Corporate Governance Guidelines”) which includes, among other topics, the size and operations of our Board and its committees, independence of directors, selection and responsibilities of our Lead Director, Board membership criteria, service by our directors on boards of other publicly-traded companies, director and executive officer stock ownership guidelines and our policy on communicating concerns to our Board.
Our Corporate Governance Guidelines, as well as other corporate governance information listed below, are available on our website at investors.thecheesecakefactory.com, by clicking on the link for “Governance”:
•
Bylaws
•
Code of Ethics for Executive Officers, Senior Financial Officers and Directors
•
Code of Ethics and Code of Business Conduct
•
Committee Charters (Audit Committee, Compensation Committee and Governance Committee)
•
Policies and Procedures Regarding Board of Director Candidates
Throughout this Proxy Statement, we may refer to various documents that are available on our website. The contents posted on, or accessible through, our website are not incorporated by reference into this Proxy Statement or any of our filings with the SEC and may be revised by us (in whole or in part) at any time and from time to time.
Stockholder Engagement
We appreciate the relationships we have been able to foster with our stockholders and value their input. Members of our senior leadership team regularly engage in meaningful dialogue with our stockholders
throughout the year on topics including business initiatives and results, strategy and capital allocation; and environment, social and governance initiatives. On occasion, members of the Board participate in these engagements with stockholders. In addition, we have developed an ongoing practice of discussing important governance issues with our stockholders in an effort to continuously improve our governance processes and communication. These engagements routinely cover corporate governance, executive compensation, environmental and social programs and goals and other topics that may be important to us or our stockholders at the time. We generally hold these discussions during the fall but may request engagement at other times if warranted. We share feedback we receive with other members of our senior leadership team and board of directors for consideration and discussion.
Stockholder Communications with the Board
Our Corporate Governance Guidelines described above include the policy our Board has adopted for stockholders and employees who wish to communicate any concern directly to the Board. Please refer to Section VI of our Corporate Governance Guidelines at investors.thecheesecakefactory.com for a description of this process.
Corporate Social Responsibility
For us, the term “Corporate Social Responsibility” or “CSR” informs how we operate in relation to our people and communities, natural environment and our supply chain. We evaluate our business and how we operate our corporate-owned restaurants in an effort to identify, create and implement meaningful and sustained change and are pleased to share the progress we have made. However, the COVID-19 pandemic has had an unprecedented impact on our business and the restaurant industry as a whole, and the ongoing effects of this pandemic on our CSR initiatives are unknown at this time. While we continue to navigate the unprecedented challenges and impacts presented by the pandemic, we have not backed away from our CSR goals and we will continue to report on our progress and efforts as we emerge from this crisis.
In 2020 we released our inaugural CSR report which details programs and initiatives across our operations with respect to our staff, our sourcing, our environmental impact, our support for the communities where we operate, and our corporate governance. The report appendix contains both a corporate materiality assessment as well as matrixes for several leading environmental, social and governance frameworks. Our CSR report is available on our website at https://www.thecheesecakefactory.com/assets/pdf/2019-CSR-Report-The-Cheesecake-Factory.pdf. The contents posted on, or accessible through, our website are not incorporated by reference into this Proxy Statement or any of our filings with the SEC and may be revised by us (in whole or in part) at any time and from time to time. A selection of our CSR progress and highlights over the last year is provided below.
People and Communities
•
In recognition of the unprecedented harm caused by the COVID-19 pandemic on the lives of restaurant employees, in 2020 we and the Foundation made it a priority to assist restaurant employees most impacted by the pandemic. To this end, we created a Staff Member COVID-19 Assistance Fund from which our staff members who were most impacted by COVID-19 received one-time grants up to $500. We, the Foundation, our generous staff members and vendor partners contributed $2.6 million to this program. In addition, the Foundation contributed $50,000 to the Children of Restaurant Employees (CORE), a 501(c)(3) qualified, non-profit charitable organization dedicated to helping food and beverage service families impacted by crisis.
•
In appreciation for their essential role in responding to the pandemic, we donated more than 20,000 meals to hospitals, frontline healthcare workers and non-profit agencies in our community.
•
The Foundation’s signature program, “Give Back,” was temporarily halted in early Spring 2020 due to challenges related to the COVID-19 pandemic. This program encourages our staff to identify non-profit charitable organizations (excluding political or religious groups) that they find personally meaningful, and to organize team volunteer outings benefitting these organizations. The Foundation provides team shirts and a financial contribution to the benefiting organizations. The Foundation plans to resume this program when circumstances allow.
•
Each Thanksgiving Day, for 18 years, the Foundation has sponsored Thanksgiving Day Feasts across the country for the underprivileged. Typically, our staff and their friends and family who volunteer in support of this effort, prepare and serve freshly roasted turkey with all the trimmings and The Cheesecake Factory’s legendary pumpkin cheesecake to thousands of low-income adults and children at Salvation Army locations around the United States. Unfortunately, due to challenges related to the COVID-19 pandemic, the Foundation was unable to sponsor the typical event in 2020. The Foundation looks forward to recommencing this tradition when circumstances allow.
•
The Foundation’s June fundraiser, the Annual Invitational Charity Golf Tournament & Auction, did not take place in 2020 due to challenges related to the COVID-19 pandemic. Typically, this invitational event invites The Cheesecake Factory vendors, associates and corporate staff members to join together and raise much needed funds. Over the past 18 years this annual event has supported more than $3.7 million in contributions from the Foundation to the City of Hope Comprehensive Cancer Center, a leading bio-medical research and treatment center for cancer, diabetes and other life-threatening diseases located in Southern California. The Foundation looks forward to recommencing this tradition when circumstances allow.
•
Every September, which is nationally recognized as Hunger Action Month, we invite all staff to participate in our Peanut Butter Drive. Our staff members collect jars of peanut butter (a favorite staple of food banks) and monetary donations during the month to donate to their local Feeding America food banks. Nationwide in fiscal 2019, our staff members collected approximately 250,000 pounds of peanut butter for donation to Feeding America’s annual campaign. Due to challenges related to the COVID-19 pandemic, our efforts to collect peanut butter were significantly hampered in 2020. We look forward to again achieving our historic level of donation when circumstances allow.
•
In fiscal 2020, we donated over $480,000 to Feeding America through sales of our Pineapple Upside-Down Cheesecake and Chocolate Caramelicious Cheesecake Made with Snickers® as well as a special promotion on July 30, 2020, National Cheesecake Day, when we donated $1 from the sale of any flavor of cheesecake. In total, we have contributed over $5.3 million to Feeding America over the past twelve years.
•
The Cheesecake Factory and Grand Lux Cafe restaurants participate in a food donation program which redirects surplus food away from landfills to local food banks and non-profit organizations. Since the program’s inception in 2007, we have donated more than 5.8 million pounds of food, including approximately 620,000 pounds in fiscal 2020.
•
In fiscal 2020 our North Italia® brand committed to contribute 2% of all gift card sales from November 1, 2020 through October 31, 2021 to FoodCorps, a non-profit organization described in Section 501(c)(3) of the Internal Revenue Code whose charitable purpose is to connect kids to healthy food in school so they can lead healthier lives and reach their full potential, with a minimum guaranteed contribution of $100,000. In fiscal 2020 we contributed $50,000 toward this commitment.
•
Our restaurants participate in a gift card donation program, providing gift cards to local schools and charities for fundraisers and auctions. This program was suspended during 2020 due to challenges related to the COVID-19 pandemic.
Our Environment
•
Eight of our restaurants are LEED certified and our training facility located at our corporate headquarters in Calabasas, California, is LEED Platinum certified. LEED, or Leadership in Energy and Environmental Design, is the most widely used green building rating system in the world. LEED provides a framework that expresses how efficiently a building is designed and operated, evaluating water efficiency, energy and atmosphere, materials and resources, indoor environmental quality and sustainability. Platinum is the highest certification status offered by LEED.
•
We have implemented food waste and organic diversion programs in 65 of our restaurants, which, combined with our recycling and food donation programs, helped us divert approximately 18% of our waste stream away from landfills in 2020.
•
We mandate the use of 100% recycled material, including 20% post-consumer content, in our paper napkins and paper towels.
•
Our West Coast bakery maintains a recycling program, which includes scrap metals, organic waste and paper, plastic and corrugated cardboard waste.
Our Supply Chain. We are committed to promoting environmental and social responsibility in our supply chain. Our efforts and accomplishments in this regard, including what we are doing to improve animal welfare in our supply chain, our efforts to reduce the use of antibiotics in our supply chain and our expectations with respect to treatment of workers in our supply chain, are described in our CSR report.
Compensation Committee Interlocks and Insider Participation
During fiscal 2020, Messrs. Jerome I. Kransdorf, Laurence B. Mindel and Herbert Simon served on the Compensation Committee, with Mr. Alexander L. Cappello serving as its Chair. During fiscal 2020, no member of the Compensation Committee was an officer or employee of ours, a former officer of ours or of our subsidiaries or had a relationship requiring disclosure by us under Item 404 of Regulation S-K. None of our executive officers served on the board of directors or compensation committee of any other entity that has or has had one or more executive officers who served as a member of our Board or the Compensation Committee during fiscal 2020.
Director Compensation
The Compensation Committee is responsible for periodically reviewing compensation payable to its non-employee directors for service on the Board or its designated committees and making recommendations to the Board concerning such compensation. In doing so, the Compensation Committee considers recommendations by Frederic W. Cook & Co., Inc. (“FW Cook”), its independent compensation consultant, which were informed by competitive analysis conducted by them as well as other factors, including, without limitation, each director’s responsibilities. The analysis conducted by FW Cook considers non-employee director compensation practices at the same peer companies used for the Compensation Committee’s evaluation of executive compensation and addresses prevalent market practices for non-employee director compensation. The Compensation Committee intends to set director compensation levels at or near the market median relative to non-employee directors at companies of comparable size, industry and scope of operations in order to ensure directors are paid competitively for their time commitment and responsibilities. Providing a competitive compensation package is important because it enables us to attract and retain highly qualified non-employee directors who are critical to our long-term success. The Board reviews recommendations by the Compensation Committee and ultimately approves the non-employee director compensation program.
In response to the effects of the COVID-19 pandemic, effective April 1, 2020 through September 14, 2020, the Compensation Committee approved a 20% reduction in the annual cash retainer fees paid to non-employee directors for service on the Board. This reduction was made to align with a corresponding 20% reduction in the 2020 base salaries for Named Executive Officers and similar reductions in pay for other of our employees.
The FW Cook analysis conducted for fiscal 2020 affirmed that our director compensation program continues to be aligned with best practices as follows:
•
Annual fees. No separate meeting fees are provided for Board meeting attendance.
•
Deferred Compensation Plan. Board members are eligible to participate in our Executive Savings Plan, a nonqualified deferred compensation plan, by contributing all or a portion of their director fees and equity awards in the form of stock units to the plan. We do not match Board member contributions. See “Executive Compensation-Retirement Plans-Nonqualified Deferred Compensation” for more information.
•
Minimal Perquisites. Each Independent Director is entitled to reimbursement for reasonable out-of-pocket expenses incurred in connection with travel to and from, and attendance at, meetings of the Board or its committees and related activities, including director education courses and materials. Independent Directors also receive dining privileges at our restaurants.
•
Stock Ownership Guidelines. Pursuant to our stock ownership guidelines our Independent Directors (other than the Series A Director) are required to acquire (and thereafter maintain ownership of) a
minimum number of shares of our common stock with a fair market value equal to four times the then applicable annual base cash retainer ($360,000 as of the end of fiscal 2020). Existing directors have until the end of 2021 to meet the guideline, while newly appointed directors are required to meet the guideline within three years of being appointed. For purposes of this policy, ownership includes any shares owned by a director or his or her immediate family members or held by him or her as part of a tax or estate plan in which the director retains beneficial ownership and unvested restricted stock or restricted stock units. The value of shares held is calculated annually. In the event acquiring shares would result in a violation of our Special Trading Policy and Procedures, the director is required to comply with the guidelines as soon as reasonably feasible. In addition, the stock ownership guidelines require each director who acquires shares of our common stock through the exercise of a stock option to retain 33% of the shares so acquired (net of tax obligations resulting from such exercise) for at least nine months following such exercise, unless the individual ceases to be a member of our board of directors. The Series A Director is not subject to our stock ownership guidelines. All of our Independent Directors (other than the Series A Director) were either in compliance with the guidelines as of March 15, 2021 or have more time to achieve the required ownership level.
•
Prohibitions on Hedging and Pledging. Members of our Board and our officers and staff members are prohibited from trading in any interest or position relating to the future price of our securities, such as a put, call or short sale, or using our stock as collateral for margin loans.
The following table sets forth information regarding the non-employee director compensation program during fiscal 2020. Any member of the Board who is also an employee (for example, Mr. Overton) does not receive additional compensation for service on the Board or its committees.
| | | Board of Directors Fees(1) | | | | Fiscal 2020 | | | | | | Annual fee(2) | | | | | $ | 90,000 | | | | | | | Annual cash payment in lieu of equity grant in 2020(3) | | | | | $ | 115,000 | | | | | | | Lead Director annual fee | | | | | $ | 25,000 | | | | | | | Audit Committee Chair annual fee | | | | | $ | 15,000 | | | | | | | Compensation Committee Chair annual fee | | | | | $ | 12,500 | | | | | | | Governance Committee Chair annual fee | | | | | $ | 7,500 | | | |
(1)
All fees and cash payments are payable in equal monthly installments, as earned, following the end of each calendar month.
(2)
In response to the impacts of COVID-19 on our business the Board elected to take a 20% reduction in the annual fee effective April 1, 2020 to September 14, 2020.
(3)
The Board authorized an annual cash payment of $115,000, annually, to each Independent Director in lieu of a compensatory equity award. Our directors are subject to our stock ownership guidelines. See “Director Compensation—Stock Ownership Guidelines” above.
As of fiscal 2020, directors may take the annual cash payment in lieu of equity grant equal to $115,000 shown above in either cash or fully-vested common shares or stock units, at their election. Any Independent Director (other than the Series A Director) who has not acquired a sufficient number of shares of Company stock to satisfy the Company’s stock ownership guidelines by the end of 2021 (or in the case of a new director, within three years of their appointment) will no longer be eligible to receive the cash payment in lieu of equity and will receive their annual equity award in fully-vested common shares having a value equal to $115,000 until he or she satisfies such guidelines.
The following table sets forth certain information regarding the compensation earned by each non-employee who served on our Board in fiscal 2020. Mr. Overton, as our employee, is not a non-employee and is not paid additional compensation for his services on our Board.
| | | Name | | | | Fees earned or
paid in cash ($)(2) | | | | Stock
Awards ($)(3) | | | | Total ($)(2) | | | | | | Edie A. Ames(1) | | | | | $ | 196,800 | | | | | | | — | | | | | | $ | 196,800 | | | | | | | Alexander L. Cappello | | | | | $ | 209,300 | | | | | | | — | | | | | | $ | 209,300 | | | | | | | Paul Ginsberg (all paid to Roark) | | | | | $ | 196,800 | | | | | | | — | | | | | | $ | 196,800 | | | | | | | Jerome I. Kransdorf(1) | | | | | $ | 226,339 | | | | | | | — | | | | | | $ | 226,339 | | | | | | | Janice L. Meyer | | | | | $ | 81,800 | | | | | | $ | 115,000 | | | | | | $ | 196,800 | | | | | | | Laurence B. Mindel | | | | | $ | 196,800 | | | | | | | — | | | | | | $ | 196,800 | | | | | | | David B. Pittaway | | | | | $ | 210,433 | | | | | | | — | | | | | | $ | 210,433 | | | | | | | Herbert Simon | | | | | $ | 196,800 | | | | | | | — | | | | | | $ | 196,800 | | | |
(1)
All or a portion of these fees were paid into a nonqualified deferred compensation plan account administered under The Cheesecake Factory Incorporated Executive Savings Plan. See “Director Compensation-Deferred Compensation Plan” above.
(2)
Reflects a 20% reduction of the annual fee for the period of April 1, 2020 to September 14, 2020, which the Board elected to take in response to the impacts of the COVID-19 pandemic on our business.
(3)
Amounts reflect the full grant-date fair value of an award of 5,283 fully vested restricted share units granted to Ms. Meyer during 2020 computed in accordance with ASC Topic 718. See Note 18 of the Notes to Consolidated Financial Statements in our Annual Report for information regarding the valuation of equity awards.
Indemnification of Officers and Directors
As permitted by the Delaware General Corporation Law, our Certificate of Incorporation limits the personal liability of our directors for monetary damages for breach of fiduciary duty of care as a director. Liability is not eliminated for (a) any breach of the director’s duty of loyalty to us or our stockholders, (b) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) unlawful payment of dividends or stock purchases or redemptions pursuant to Section 174 of the Delaware General Corporation Law, and/or (d) any transaction from which the director derived an improper personal benefit. Our Certificate of Incorporation also provides that we shall indemnify and advance indemnification expenses on behalf of all directors and officers of ours to the fullest extent permitted by Delaware law. Article VIII of our Bylaws also requires us, subject to certain limitations, to indemnify directors and officers and advance expenses. The indemnification and advancement of expenses provisions of Article VIII are not exclusive of any other rights of indemnification or advancement of expenses.
We also entered into indemnification agreements with all of our directors and Named Executive Officers. Each indemnification agreement requires us to indemnify and hold harmless the director or Named Executive Officer to the fullest extent authorized by the laws of the State of Delaware. Each indemnification agreement also requires us, subject to specific terms and conditions, to advance expenses to the director or officer. Each indemnification agreement also sets forth various procedures and definitions with respect to indemnification and advancement of expenses. We also are obligated to maintain directors’ and officers’ liability insurance. With specified exceptions, we are not obligated to provide indemnification or advance expenses with respect to actions initiated by the director or officer or to indemnify the director or officer in connection with proceedings by us to enforce non-compete or non-disclosure agreements. To the extent the provisions of the indemnification agreements exceed the indemnification permitted by applicable law, such provisions may be unenforceable or may be limited to the extent they are found by a court of competent jurisdiction to be contrary to public policy.
Policies Regarding Review, Approval or Ratification of Transactions with Related
Persons
In accordance with its charter, our Audit Committee reviews and approves any proposed transactions with a “related person.” Any related person transaction will be disclosed in the applicable filing as required by
the rules promulgated by the SEC. For purposes of these procedures, “related person” and “transaction” have the meanings as defined in Item 404 of Regulation S-K.
As described above, on April 20, 2020, we entered into the Subscription Agreement with Roark pursuant to which we sold the Purchased Shares to Roark for $200 million, and Roark has the right to designate or nominate one director. In connection with this transaction, the Board appointed Paul D. Ginsberg to the Board. Mr. Ginsberg is the President of Roark Capital Group, an affiliate of Roark.
Pursuant to the Subscription Agreement, subject to certain customary exceptions, Roark is prohibited from, among other things, (i) acquiring securities, assets or indebtedness of the Company, (ii) effecting a tender offer, merger or acquisition of the Company and (iii) soliciting proxies or seeking a director/management change in the Company until the later of (x) three years after the date of the Subscription Agreement and (y) such time as Roark holds record and beneficial ownership of Conversion Shares that constitute less than 5% of the outstanding Common Stock.
Roark received certain information rights under the Subscription Agreement, including the right to receive audited and unaudited consolidated financial statements of the Company. For so long as Roark has record and beneficial ownership of Conversion Shares that constitute at least 5% of the outstanding Common Stock, Roark will also have the reasonable right to consult from time to time with the officers of the Company regarding operating and financial matters of the Company.
So long as Roark has the right to designate or nominate a director to the Board of Directors, Roark may not enter into any hedging transactions to the extent directors of the Company are prohibited from entering into such hedging transactions pursuant to a policy applicable to all directors of the Company.
In connection with the closing under the Subscription Agreement, the Company paid a commitment fee to Roark equal to 1% of the aggregate purchase price for the Purchased Shares.
On April 20, 2020, the Company and Roark also entered into a Registration Rights Agreement (the “Registration Rights Agreement”) pursuant to which, among other things, the Company granted Roark certain registration rights. Under the Registration Rights Agreement, the Company is required to use its reasonable best efforts to cause the registration of the Conversion Shares.
As described above, for so long as Roark has the right to designate or nominate one person for election to the Board, Roark has agreed to vote all of the Purchased Shares, Conversion Shares or any other shares of Common Stock as set forth in the Subscription Agreement.
We had no other reportable transactions with related persons required to be disclosed under Item 404 of Regulation S-K since the beginning of fiscal 2020.
Policies Regarding Hedging, Short Sales, Publicly Traded Derivatives, Margin Accounts
and Pledges.
The Board believes that ownership of the Company’s stock by the Company’s Board members, executive officers, and other staff members promotes alignment of interest with stockholders. The Board recognizes that transactions that are designed to hedge, establish downside price protection or otherwise offset declines in the market value of the Company’s stock owned by such persons can disrupt this alignment, undermine stock ownership guidelines and encourage imprudent risk-taking. The Board also recognizes that pledging the Company’s stock as collateral for indebtedness can be adverse to the interests of the Company’s stockholders because it creates the risk of unplanned and forced sales that could adversely impact the value of the Company’s stock. For these reasons, we have a policy prohibiting our Board members, executive officers and all other employees from engaging in short-term or speculative transactions in Company securities, including short sales and other forms of hedging (e.g., zero-cost collars and forward sale contracts), and trading in puts, calls or other derivative securities of the Company (other than stock purchases and sales in the listing market). In addition, no Board member or employee may hold the Company’s securities in a margin account or pledge such securities as collateral for a loan.
NON-GAAP FINANCIAL MEASURES
In addition to the results determined in accordance with generally accepted accounting principles (“GAAP”), this Proxy Statement includes certain non-GAAP financial measures that exclude the impact of items we do not consider indicative of our ongoing operations. We believe these adjusted measures provide additional information to facilitate the comparison of our past and present financial results. We utilize results that both include and exclude the identified items in evaluating business performance. Our inclusion of these adjusted measures should not be construed as an indication that our future results will be unaffected by unusual or infrequent items. In the future, we may incur expenses or generate income similar to the adjusted items. Non-GAAP financial measures should be considered in addition to, not as a substitute for, measures of performance prepared in accordance with GAAP. These non-GAAP financial measures may not be comparable to similarly titled measures used by other companies and should not be considered in isolation or as a substitute for measures of performance prepared in accordance with GAAP.
A reconciliation of the non-GAAP financial measures used in this Proxy Statement to the closest GAAP financial measure is included in Appendix A which is attached to this proxy statement.
EXECUTIVE COMPENSATION Compensation Discussion and Analysis This “Compensation Discussion and Analysis” explains our strategy, design, and decision-making related to our compensation programs and practices for our Named Executive Officers. This “Compensation Discussion and Analysis” also explains how the compensation of our Named Executive Officers aligns with the interests of our stockholders and is intended to provide perspective on the compensation information contained in the tables that follow this discussion. For fiscal 2020,2023, our Named Executive Officers were: •
David Overton, Chairman of the Board and Chief Executive Officer;Officer (“CEO”); •
David M. Gordon, President, The Cheesecake Factory Incorporated; •
Matthew E. Clark, Executive Vice President and Chief Financial Officer; •
Scarlett May, Executive Vice President, General Counsel and Secretary; and •
Keith T. Carango, President, The Cheesecake Factory Bakery Incorporated. While the principal purpose of this “Compensation Discussion and Analysis” is to review Named Executive Officer compensation, many of the programs discussed herein apply to other members of senior management who, combined with the Named Executive Officers, are collectively referred to herein as “executives.” Executive Summary FollowingFinancial Highlights. Fiscal 2023 was a strong start to fiscal 2020solid year for the company with positive comparable sales growth across our portfolio of 3% atconcepts and 18 new restaurant openings contributing to record annual revenue. Our revenue growth combined with expanded profit margins lead to strong earnings growth for the year.
As we look ahead, we remain intently focused on leveraging our competitive strengths, including our scale, differentiated concepts and best-in-class operators to drive profitable growth and meaningful shareholder value. Following are some of our financial achievements for fiscal 2023: •
Solid EPS Growth. Diluted EPS increased to $2.07 in fiscal 2023, up from $0.86 in Fiscal 2022. Fiscal 2023 adjusted diluted EPS of $2.69 increased by 78% over fiscal 2022 adjusted diluted EPS of $1.51.* •
Record Revenue. Fiscal 2023 revenue was $3.44 billion, a 6.7% increase over 2022 after excluding the impact of the additional week in fiscal 2022. •
Strong Restaurant Comparable Sales. The Cheesecake Factory restaurants through February, the onset of the COVID-19 pandemic caused significant disruption to our business as social distancingcomparable sales increased 3.0% and shelter-in-place orders led to the temporary closure of a number of restaurants across our portfolio while the remaining locations shifted to an off-premise operating modelNorth Italia comparable sales increased 8.0%, both versus prior year and on an interimoperating week basis. The Company and our Board of Directors implemented the following measures to preserve liquidity and enhance financial flexibility in response to the COVID-19 pandemic: •
Eliminated non-essential capital expenditures and expenses;
•
Suspended new unit development;Meaningful Shareholder Capital Return. In fiscal 2023, we returned over $99 million to shareholders via dividends and share repurchase programs.
•
*
Temporarily reduced board, executiveAdjusted diluted EPS is a non-GAAP measure and corporate support staff compensation;is defined and reconciled from GAAP in Appendix A of this proxy statement.
•
Strategic and Operational Highlights. Our significant strategic and operational achievements for fiscal 2023, which support our objectives for continued growth, opperational efficiency and more effective guest engagement, are highlighted below.
Engaged in discussions with•
Flower Child Growth. In 2023, we successfully completed our landlords regarding ongoing rent obligations, including the potential deferral, abatement and/or restructuring of rent otherwise payable during the periodintegration objectives and have positioned Flower Child for future national growth. Some of the COVID-19 pandemic related closure;integration objectives included: i) transitioning design and construction responsibilities for stand-alone Flower Child restaurants to our development group in Irvine; ii) transitioning leasing and site selection to the Calabasas office; and iii) completing our plan to deploy financial and operational dashboards.
•
Increased borrowings underTechnology Initiatives. In 2023, we completed our revolving credit facility;ERP implementation including launching the new platform at the start of the year, transitioning SEC reporting and SOX control reviews, and implementing the new ERP’s expense reporting module. We further enhanced our security posture by updating our endpoint antivirus software, updating our incident response planning and expanding training.
•
Raised additional equity capital;Rewards Program. We successfully launched our Cheesecake Rewards™ program nationwide in June of 2023 to greater demand than expected. The primary objective is to leverage data analytics and insights to engage more effectively with our guests and drive incremental sales while maintaining our restaurant level margins. We have started to analyze data on guest acquisition and engagement to inform targeted marketing campaigns to drive membership enrollment, engagement and frequency.
•
Suspended the dividend on our common stockNew Restaurant Growth. We opened a total of 16 company operated restaurants in fiscal 2023, including six The Cheesecake Factory restaurants, three North Italia restaurants, one Flower Child location and share repurchases.six other FRC restaurants. In addition, two The Cheesecake Factory restaurants opened internationally under licensing agreements.
We also took a number of steps to address the impacts of the pandemic on our staff and guests, which included:
•
Obtained adequate personal protective equipment for our staff and required the use of face masks by our restaurant teams regardless of jurisdictional requirements in an effort to keep our teams and customers safe;
•
Instituted a special paid time off program with the goal of ensuring that hourly staff and managers could afford to take adequate time off from work to care for their health;
•
Retained our restaurant management teams which we believe enabled us to adapt quickly to a mandated off-premise only operating model and reopen indoor dining rooms safely when permitted; and
•
When the closure of our dining rooms in March necessitated the furloughing of approximately 41,000 hourly staff members, the Company funded a variety of support programs in an effort to provide them with stability, including a complimentary daily meal, continuation of insurance benefits during the furlough and contributions to a COVID assistance fund that, together with donations from the Foundation, our generous staff members and vendor partners, provided $2.6 million in financial grants during fiscal 2020 to staff members in need.
In late April 2020, certain jurisdictions began allowing the reopening of restaurant dining rooms, and we began to reopen dining rooms across our concepts the second week of May. However, restrictions on the type of permitted operating model and occupancy capacity continued to change and increase throughout fiscal 2020, impacting many of our markets during the fourth quarter of fiscal 2020 with the surge in COVID-19 cases.
Revenues for fiscal 2020 decreased 20.1% to $1,983.2 million, primarily due to a decline in comparable restaurant sales, reflecting the impact of the COVID-19 pandemic, partially offset by additional revenue related to our acquisition of North Italia and FRC and new restaurant openings. The revenue decline and cost pressure associated with the COVID-19 pandemic impacted our cash flow generation and drove a net loss of $253.4 million, or $6.32 per diluted common share in fiscal 2020. Adjusted net loss for fiscal 2020 was $74.9 million, or $1.49 per share, and fiscal 2020 adjusted EBITDAR was $186.8 million. Our operational and financial decisions throughout the COVID-19 pandemic enabled us to return to positive operating cash flow in the second half of fiscal 2020 and exit the year in a solid financial position with total available liquidity of approximately $250 million, including a cash balance of approximately $154 million.
Financial and Operating Highlights. Despite the significant challenges we faced in 2020 as a result of the COVID-19 pandemic, we were able to accomplish a number significant financial and operational achievements, including:
•
Financial performance exceeded projections — In March and April of 2020 (after the COVID-19 pandemic was declared a National Public Health Emergency), we prepared updated financial projections (including sales, adjusted EBITDAR and ending cash balance) in connection with an amendment to the Company’s revolving credit facility and in connection with the Company entering into the Subscription Agreement with Roark. Our actual financial performance exceeded all three metrics under both sets of projections.
•
COVID-19 Response — We quickly adapted our business to cope with challenges related to the COVID-19 pandemic. This required us to restore liquidity, develop new operating models, implement new technologies and to take a number of other measures to optimize our business during the pandemic. These measures included: stabilized working capital, secured additional liquidity and developed appropriate support cost structure; right sized corporate general and administrative expenses to ensure positive cash flow while maintaining a sufficient workforce for appropriate restaurant and corporate support; completed review of all corporate/field projects and identified a
limited number of essential projects as appropriate for 2021 planning; developed and implemented multiple restaurant operating models including off-premise only to comply with capacity restrictions, reopened for full-service dining as state/local jurisdictions permitted and implemented appropriate safety guidelines for staff and guests; rolled out a number of restaurant technology solutions to support re-opening of restaurants and dining rooms including front desk remote greeter, text paging, contactless payment, interactive voice response and online reservations.
•
FRC and North Italia: Supported Growth, Ongoing Management and Optimization — Finalized new unit growth pipeline for 2020-2021; included North Italia in the quarterly reforecast process for financial planning; supported North Italia supply chain needs; transitioned FRC payroll and benefits to our corporate platforms.
•
Environmental, Social and Governance (“ESG”) — Determined the reporting framework to be used to report our ESG metrics; developed sustainability update; published ESG report.
20202023 Annual Incentive/2018-2020 Incentives/2021-2023 Long-Term Incentive Plan Outcomes. When evaluating Bonuses payable to our Named Executive Officers under our fiscal 2020 Performance Incentive Plan,Outcomes. Based on the Compensation Committee took into account the fact that the Company’s actual financial performance (with respect to sales, adjusted EBITDAR and ending cash balances) exceeded projections prepared in March and April of 2020 (after the COVID-19 pandemic was declared a National Public Health Emergency). These projections were prepared in connection with an amendment to the Company’s revolving credit facility and in connection with the Company entering into the Subscription Agreement with Roark. The Compensation Committee also considered the extraordinary efforts by management, including our Named Executive Officers, to support our business during the pandemic crisis, which included the following: stabilizing working capital, securing additional liquidity and developing appropriate support cost structure; developing and implementing multiple restaurant operating models including off-premise only to comply with capacity restrictions, and implemented appropriate safety guidelines for staff and guests; rolling out a number of restaurant technology solutions to support re-opening of restaurants and dining rooms including front desk remote greeter, text paging, contactless payment, interactive voice response and online reservations; and, transitioning FRC payroll and benefits to our corporate platforms. For all of these reasons, the Committee determined it would be appropriate to approve an upward adjustment pursuant to the terms of the fiscal 2020 Performance Incentive Plan for an additional 10% of the applicable target Bonus. Without this adjustment,outlined above, payouts under our incentive plans were as follows for 2020:2023:
![[MISSING IMAGE: tb_incentiveplan-bw.jpg]](https://capedge.com/proxy/PRE 14A/0001104659-24-041237/tb_incentiveplan-bw.jpg) (1)
The adjusted EBITDAR financial performance portion of the bonus was broken into two halves of the fiscal year and the percentage payout achieved for each period was weighted as 50% of the adjusted
(1)
As a resultEBITDAR financial performance goal. In the first half of fiscal 2023, we achieved 93.3% of the financial impact the COVID-19 pandemic had on our business, the Company did not achieve the applicablefirst-half adjusted EBITDAR objective ($474.7 million), orfinancial performance goal, resulting in an 88% payout. In the minimum requiredsecond half of fiscal 2023, we achieved 96.2% of the second-half adjusted EBITDAR level ($403.5 million)financial performance goal, resulting in a 94% payout for anythe second half of the fiscal year and an overall adjusted EBITDAR financial performance goal payout of the91%.
(2)
The Company strategic initiatives paid out at 100%. (3)
The bakery division adjusted EBITDARGross Contribution measures sales less ingredient, packaging, and direct labor costs. This adjusted Gross Contribution financial performance portion of the plan.
(2)
In consideration of the Company exceeding its post-pandemic financial projections, due to management’s extraordinary efforts and achievements in managing through the crisis, the Compensation Committee determined it would be appropriate to approve an upward adjustment pursuant to the termsbonus was broken into two halves of the fiscal 2020 Performance Incentive Planyear. The percentage payout achieved for each period was weighted as 50% of the bakery division adjusted Gross Contribution financial performance goal. The bakery division achieved 78.2% of the first-half fiscal 2023 adjusted Gross Contribution financial performance goal, resulting in a 37% payout. The bakery division achieved 90% of the second-half fiscal 2023 adjusted Gross Contribution financial performance goal, resulting in a 77% payout for the second half of the fiscal year and an additional 10% Bonus (which is in addition to theoverall bakery division adjusted Gross Contribution financial performance goal payout shown under “Results” above)of 57%. See “Executive Summary—2020 Annual Incentive/2018-2020 Long-Term Incentive Plan Outcomes” above.
2020(4)
The bakery division strategic initiatives paid out at 66%. (5)
The adjusted average annual sales per productive square foot goal and the adjusted annual controllable profit goal measured performance by Company owned and operated The Cheesecake Factory restaurants. 2023 Compensation Program Changes and Other Pay Actions. Our fiscal 2020 executive compensation program was approved priordesigned to the COVID-19 pandemic to reflectdrive strong results and was built upon our business strategy at that time. However, in light of the suddenperformance-driven culture and severe challenges we faced as a result of the COVID-19 pandemic, during fiscal 2020 we also made certain changes to ourlong-standing executive compensation program to better align management’s focus with the immediate needs of the business.philosophies and objectives.
| | | Pay Element | | | | 20202023 Program Changes and Rationale | | | | Individual Pay Adjustments | | | | | | Base Salary | | | | •
n/a | | | | •
Base salary increases ranged from 0%-4.9%3.9%-4.4% for the Named Executive Officers (other than the CEO who did not receive an increase). •
In response to the effects of the COVID-19 pandemic on our business, the base salaries of our Chief
| | |
| | Pay Element | | | | 2020 Program Changes and Rationale | | | | Individual Pay Adjustments | | | | | | | | | | | | | Executive Officer and other Named Executive Officers were reduced from April 1, 2020 through September 14, 2020 | | | | | | Performance Incentive Plan
Corporate:
—75% Adjusted EBIDTAR
EBITDAR
— 25% Strategic Goals
Bakery Division:
— 50% Adjusted EBITDAR
— 25% Bakery division adjusted Gross Contribution
— 25% Strategic Goals | | | | •
Revised strategic metricsTransitioned from using bakery division adjusted EBITDAR to reflect business strategy prior tousing bakery division adjusted Gross Contribution as the COVID-19 pandemic. In July 2020 the Committee approved revised strategic objectives to better align management’s focus with the needsbakery division financial performance condition. Bakery division adjusted Gross Contribution captures sales performance and nearly 75% of the business givenexpenses incurred by the suddenbakery division. This change creates more line of sight and severe challenges from the COVID-19 pandemic.less unexpected volatility in results for bakery division executives.
| | | | •
No changes toAll target bonus opportunities as percent of base salaryremained unchanged from 2022.
| | | | | | Long-Term Stock Incentive Plan
—50% performance shares tied to earnings per share (EPS),total annual revenue growth, adjusted average annual sales per productive square foot and adjusted annual controllable profit goals, weighted equally, over a three-year period
— 25% stock options
— 25% time-vested restricted stock, with50% Stock Options and/or Time-Based Restricted Stock, at the election to take in options, if desired | | | | • n/aof the executives | | | | •
There were no changes to the plan for fiscal 2023. | | | | •
Long-term grant value increases ranged from 2.2%-3.6%2.5% to 7.3% based on their individual performance and market competitiveness. | | |
Emphasis on Performance-Based Compensation and Pay Delivery. For fiscal 2020,2023, on average, 68%70% of the target direct compensation of our Named Executive Officers, other than our Chief Executive Officer,CEO, was performance-based. Mr. Overton continues to have a proportionately greater percentage (85%) of performance-based compensation (87%) as compared to other Named Executive Officers because we believe he has a greater ability to influence both short-term and long-term performance.
The following charts show each element of the target total direct compensation (comprised of base salary, target bonus and grant date fair value of equity awards) for our Chief Executive OfficerCEO and other Named Executive Officers (on average) for fiscal 20202023 (equity awards are depicted at grant date fair value). Alignment of Company Performance and Pay Delivery Consistent with our pay-for-performance philosophy, 85%87% of our CEO’sCEO target total direct compensation is at-risk and aligned with our actual performance. The table below demonstrates such alignment, showing
that “actual” pay for the CEO in each of the past three years has been lower than the “targeted” amounts, which is consistent with our total stockholder return performance over the same period. “Target” pay consists of annual salary, target bonus and grant date value of equity awards granted during fiscal 2020. “Actual” pay is calculated by annual salary, actual bonus paid for fiscal 2020 performance and equity value granted during fiscal 2020 based on our stock price as of 12/31/2020.2023. (1)
Actual pay for 2023 includes base salary, actual bonus paid for performance during the year shown, the intrinsic value of stock options and RSUs as of 12/31/20,January 2, 2024, the intrinsic value of earned performance shares as of 12/31/20January 2, 2024 for 20182021 grants (which was $0)106% of target), and the intrinsic value of target performance shares as of 12/31/20January 2, 2024 for 20192022 and 20202023 grants.
2023 “Say-on-Pay” Advisory Vote on Executive Compensation. We provide stockholders a “say-on-pay” advisory vote regarding our Named Executive Officers’ compensation on an annual basis. At our 20202023 annual meeting of stockholders, our stockholders approved, by a vote of approximately 95%98% of shares represented in person or by proxy, the say-on-pay proposal regarding the compensation of our Named Executive Officers as presented in the 20202023 proxy statement. We believe this level of approval indicates that stockholders strongly support our executive compensation programs and policies. The Compensation Committee will consider the results of this year’s say-on-pay proposal, as well as feedback from our stockholders, when making future executive compensation decisions. Alignment with Stockholder Interests. Our executive compensation program is aligned with stockholder interests, as described in the summary below: | | | What We Do | | | | What We Don’t Do | | | | | | Pay for Performance—A significant portion of executive compensation is performance-based, tied to pre-established performance goals aligned with our short- and long-term objectives and stockholder value creation | | | | No Payment of Dividends on Unvested Awards—Any dividends or dividend equivalents related to equity awards are subject to the same vesting restrictions as the underlying awards | | | | | | Focus on Retention and Long-Term Value Creation —Creation—We use longer equity vesting periods than our peers (generally ratably over five years for stock options and over three to five years for restricted stock/units, versus three to four years for our peer group) | | | | No Single Trigger Benefits—Except where awards are not assumed by the surviving or acquiring entity, any payments or benefits in the event of a change in control require a qualifying termination of employment (“double trigger”) | | |
| | | What We Do | | | | What We Don’t Do | | | | | Stock Ownership Guidelines—We maintain stock ownership guidelines to encourage executives to think like our long-term stockholders | | | | No Automatic Retirement Payments—Acceleration of Equity Awards—We do not provide automatic acceleration of equity awards upon retirement | | | | | | Compensation Recoupment Policy—We maintain a Clawback Policy in compliance with SEC guidance that applies when inaccurate financial statements have resulted in incentive payments and/or equity awards to our executives | | | | No Excessive Perquisites—We generally only provide perquisites to Named Executive Officers that are available to other members of senior management | | | | | | Effectively Manage Dilution—We neutralize the impact of dilution from employee equity grants with a share repurchase program | | | | No Tax Gross-Ups Upon Change in Control—We do not gross-up executive perquisite taxes or excise taxes in connection with a change in control | | | | | | Regularly Consider Stockholder Feedback—We conduct an annual stockholder say-on-pay vote and we engage with interested stockholders and receive their feedback on our executive compensation program | | | | No Hedging and Pledging—We prohibit all employees and directors from engaging in hedging, pledging and speculative transactions in derivatives of Company securities | | | | | | Assess and Mitigate Risk—We conduct an annual risk assessment to identify any significant risks in our incentive compensation programs | | | | No “Repricing”—We prohibit repricing of stock options without stockholder approval | | | | | | Independent Compensation Consultant—Our Compensation Committee engages an independent consultant for objective advice regarding executive pay | | | | No Multi-Year Guarantees—We do not provide multi-year guarantees for salary increases, bonus or equity compensation | | |
Overview of Compensation Program Compensation Philosophy. In order to maintain a leadership position in our industry and to continue growing our concepts, both domestically and internationally, we need to attract and retain highly motivated executives who bring experience, innovation and operational excellence to us. With this in mind, we strive to: •
Attract and retain industry-leading executives by paying competitive compensation relative to other companies within the restaurant industry and other industries with which we compete for talent; •
Drive high performance by connecting compensation to our financial, operating, and strategic goals and results and by appropriately rewarding high performance; •
Tie executive pay to Company performance goals that drive stock price performance; and •
Align the interests of our executives with those of our stockholders by tying a portion of our executive compensation to long-term equity incentives and requiring stock ownership for our Named Executive Officers. Elements of Compensation Program. Our 20202023 executive compensation program consisted of the following:
FISCAL 20202023 PRINCIPAL ELEMENTS OF EXECUTIVE COMPENSATION | | | Element | | | | Description | | | | Performance Considerations | | | | Primary Objectives | | | | | | Base Salary | | | | •
Fixed cash payment | | | | •
Based on level of responsibility, experience, tenure in role, individual performance and expected future value/contribution | | | | •
Attract and retain talent •
Provide competitive compensation •
Recognize career experience •
Reward individual performance | | | | | Performance Incentive Plan | | | | •
Variable performance-based annual cash incentive, tied to achieving pre-established financial and strategic goals
| | | | •
Target bonus is a percentage of base salary, based on management position
•
Bonus based 75% on achievement of adjusted EBITDAR and 25% on achievement of strategic goals
•
Adjusted EBITDAR portion can pay out from 30%—200% of target; strategic portion capped at 100% of target
•
The actual amount of the bonus payable will be determined by the Compensation Committee
| | | | •
Promote and reward high performance
•
Motivate achievement of Company, divisional and/or individual financial and/or strategic objectives over the year
| | |
| | | Element | | | | Description | | | | Performance Considerations | | | | Primary Objectives | | | | | | Performance Incentive Plan | | | | •
Variable performance-based annual cash incentive, tied to achieving pre-established financial and strategic goals | | | | •
Target bonus is a percentage of base salary, based on management position •
Bonus based 75% on achievement of adjusted EBITDAR (and adjusted Gross Contribution for the bakery division only), and 25% on achievement of strategic goals •
Adjusted EBITDAR portion (and adjusted Gross Contribution for the bakery division only) can pay out from 25%-150% of target based on two sixth-month performance periods; strategic portion capped at 100% of target based on annual goals •
The actual amount of the bonus payable will be determined by the Compensation Committee and paid after the end of the fiscal year | | | | •
Promote and reward high performance •
Motivate achievement of Company, divisional and/or individual financial and/or strategic objectives over the year | | | | | | Long-term Stock Incentive Plan | | | | •
Stock options generally vest ratably over five years
•
Performance-based restricted stock generally eligible to vest from year-three to year-fiveis earned based on a three-year performance period, and vests 60% after year three, 20% after year four, and 20% after year five if performance goals are achieved •
Time-based restricted stock vests 60% after year three, 20% after year four and 20% after year five •
Stock options vest 20% per year over five years | | | | •
Value of awardall awards are directly linked to long-term stock price and options only have value if stock price increases •
Performance restricted stock earned awards based on total annual revenue growth, adjusted EPS,average annual sales per productive square foot and adjusted annual controllable profit goals; 60% of any shares earned at end ofperformance conditions over a three-year performance period are vested and the remaining shares vest 20% on each of the fourth and fifth anniversaries of grant
•
60% of the time-based restricted stock vests on the third anniversary of grant, and the remaining shares vest 20% on each of the fourth and fifth anniversaries of grant
| | | | •
Build executive equity ownership to increase alignment of executive and stockholder interests •
Attract and retain talent •
Correlate our financial performance and stock price andperformance with executive compensation | | |
| | | Element | | | | Description | | | | Performance Considerations | | | | Primary Objectives | | | | | | Retirement and Welfare Benefits | | | | •
Medical, dental, vision, life and long-term disability insurance •
NonqualifiedNon-qualified deferred compensation plan
•
Defined benefit retirement agreement (for Chief Executive OfficerCEO only) | | | | •
Not applicablen/a
| | | | •
Attract and retain talent •
Provide competitive compensation •
Provide reasonable security to allow executives to perform at their best level | | | | | | Executive Perquisites | | | | •
Company-leased vehicle or car allowance •
BiennialAnnual health physical for executives at Senior Vice President level and above
•
Relocation benefits on a case-by-case basis •
Sabbatical leave program (currently suspended due to the COVID-19 pandemic) | | | | •
Not applicablen/a
| | | | •
Attract and retain talent •
Provide competitive benefits •
Promote health and wellbeing of senior executives | | |
Factors Considered in Making Compensation Decisions. Our compensation strategy enables us to appropriately differentiate and reward executives by taking into account: •
Our financial and operational performance;
•
The executive’s individual performance, experience and qualifications; •
The scope of the executive’s role; •
The level of total compensation for our other executives; and •
Competitive market data, which helps us evaluate how our executive pay levels compare to others in our industry and within the markets in which we compete for talent. All of the factors set forth above are considered by the Compensation Committee in establishing Named Executive Officer compensation, in a subjective manner, without any specific formula. Market Positioning Our Compensation Committee, in collaboration with our CEO and Chief ExecutivePeople Officer, and Senior Vice President of Human Resources, reviews market data related to pay practices among comparable companies but does not target specific market positioning of pay when determining compensation for individual Named Executive Officers. Rather, the Compensation Committee uses comparative market data as one of several factors when making individual compensation decisions. As part of its compensation review process for fiscal 2020,2023, the Compensation Committee reviewed an analysis prepared by its independent compensation consultant of market pay practices for positions similar to the positions of our Named Executive Officers, adjusted to take into account differences if any, between the scope of our Named Executives Officers’ responsibilities compared to their counterparts in positions with similar titles in comparable companies. This analysis used pay comparisons from comparable companies in the restaurant and hotel industry as compiled from their proxy disclosures and other SEC filings as well as a recognized marketthird-party survey source, the Mercer Executive Remuneration Suite Survey.data. For the Chief Executive Officer,CEO, the President of The Cheesecake Factory Incorporated and the Chief Financial Officer, publicly available data from the comparable companies listed below was used in such
analysis. For the General Counsel and President of our bakery division, publicly available data was weighted at 50% and the survey data was weighted at 50% for purposes of determining market pay positions in such analysis. 20202023 Executive Compensation Peer Group. When we compare ourselves to other companies, we must account for differences between us and others in terms of ownership structure, dining industry segment, size and complexity of operations, sourcing pool for executive talent, and other differentiators. We use the “Executive Compensation Peer Group” for executive compensation comparisons and compensation program design comparisons, as we believe this group reflects companies most similar to us in terms of size and complexity of operations and with which we compete for executive talent. The Executive Compensation Peer Group approved by the Compensation Committee for 20202023 consisted of publicly-traded companies in the restaurant and hotel/hospitality industries with revenue generally between $500 million and $6 billion (approximately 0.2 timesone-third to 2.5three times our revenue),revenue, and in the aggregate, had an overall median revenue of $2.4$2.8 billion, which was comparable to our revenue of $3.4 billion, as of fiscal 2019, which was slightly lower than our revenue, as follows:
| | | BJ’s Restaurants, Inc. | | | | Dave & Buster’s Entertainment, Inc. | | | | Red Robin Gourmet Burgers,Jack in the Box Inc. | | | | | | Bloomin’ Brands, Inc. | | | | Denny’s Corporation | | | | Texas Roadhouse,Red Robin Gourmet Burgers, Inc. | | | | | | Brinker International, Inc. | | | | Dine Brands Global, Inc. | | | | The Wendy’s CompanyTexas Roadhouse, Inc. | | | | | | Chipotle Mexican Grill, Inc. | | | | Domino’s Pizza, Inc. | | | | Wyndham Hotels & Resorts, Inc.The Wendy’s Company | | | | | | Cracker Barrel Old Country Store, Inc. | | | | Hyatt Hotels Corporation | | | | Wyndham Hotels & Resorts, Inc. | | | | | | Darden Restaurants, Inc.(1) | | | | | Jack in the Box Inc. | | | | | |
(1)
Included in our comparison group because of its importance as an industry leader in casual dining, even though its revenues are greater than the $6 billion upper range limit.
For the 20202023 Executive Compensation Peer Group, the Compensation Committee made no changes from the prior year. While this comparison group provides the Compensation Committee with an important general frame of reference, as described above, the Compensation Committee does not target our Named Executive Officers’ compensation at any specific percentile or within a specific range of the Executive Compensation Peer Group’s pay levels.
Principal Elements of Compensation Base Salary. In accordance with our compensation objectives, base salaries for our Named Executive Officers are determined by the Compensation Committee and administered to reflect the individual executive’s career experience, contribution to our performance, overall Company performance, as well as the market data as compared to the Executive Compensation Peer Group. During its annual review of base salaries, the Compensation Committee also considers the recommendations of our Chief Executive OfficerCEO (except with respect to his own compensation). The following chart shows the annualized base salaries for our Named Executive Officers for fiscal year 20202023 and the percentage changechanges as compared to the prior year, which the Compensation Committee determined were reasonable and appropriate based on the factors described above. | | | | | | | FY20 Base Salary | | | | % Change | | | | | | | | FY23 Base Salary | | | | % Change | | | | | | David Overton, Chairman of the Board and Chief Executive Officer | | | | | $ | 995,000 | | | | | | | 0% | | | | | David Overton, Chairman of the Board and CEO | | | | | $ | 995,000 | | | | | | | 0% | | | | | | | David M. Gordon, President, The Cheesecake Factory Incorporated | | | | | $ | 675,000 | | | | | | | 3.8% | | | | | David M. Gordon, President, The Cheesecake Factory Incorporated | | | | | $ | 750,000 | | | | | | | 4.2% | | | | | | | Matthew E. Clark, Executive Vice President and Chief Financial Officer | | | | | $ | 535,000 | | | | | | | 4.9% | | | | | Matthew E. Clark, Executive Vice President and Chief Financial Officer | | | | | $ | 595,000 | | | | | | | 4.4% | | | | | | | Scarlett May, Executive Vice President, General Counsel and Secretary | | | | | $ | 510,000 | | | | | | | 4.1% | | | | | Scarlett May, Executive Vice President, General Counsel and Secretary | | | | | $ | 567,500 | | | | | | | 4.1% | | | | | | | Keith T. Carango, President, The Cheesecake Factory Bakery Incorporated | | | | | $ | 415,000 | | | | | | | 3.0% | | | | | Keith T. Carango, President, The Cheesecake Factory Bakery Incorporated | | | | | $ | 462,500 | | | | | | | 3.9% | | | |
In response to the impacts of COVID-19 on our business our Chief Executive Officer and each of our other Named Executive Officers elected to reduce their 2020 base salaries by 20% effective April 1, 2020 through and including September 14, 2020.
Annual Cash Performance Incentive Compensation. Executives and a significant number of other employees that are essential to the success of our business are eligible to receive an annual cash performance
incentive bonus (“Bonus”) under the Performance Incentive Plan (“Bonus”) based on our performance against specific financial and strategic objectives. In addition, we use quarterly cash performance incentive compensation for all of our management positions in our restaurants. At the beginning of each fiscal year, the Compensation Committee establishes both the performance objectives and the formula for determining potential Bonus payments. Beginning in 2021, given the uncertainty regarding the ongoing impacts of the COVID-19 pandemic, the Compensation Committee established two separate performance periods for the adjusted EBITDAR performance goal. Given the continued uncertain business environment, the Compensation Committee decided, with the assistance of its independent compensation consultant, to continue to utilize two separate performance periods for the adjusted EBITDAR financial performance goal for fiscal 2023 and to use two separate performance periods for the adjusted Gross Contribution goal for the bakery division only. The first performance period covered the first half of fiscal 2023 beginning on January 4, 2023 and ending on July 4, 2023, and the second performance period covered the second half of fiscal 2023 beginning on July 5, 2023 and ending on January 2, 2024. Bonuses are payable, if at all, in the first quarter of the fiscal year following the year in which such Bonuses were earned, after the Compensation Committee certifies performance relative to the pre-established objectives. Under the terms of our Performance Incentive Plan, the amount of any individual Bonus in any fiscal year may not exceed $2.5 million. Fiscal 20202023 Performance Incentive Plan Design. Bonus opportunities (as a percentage of base salary) by position for our Named Executive Officers are set forth below and were unchanged from 2019.below. Actual payouts depend upon performance results with ranges as follows: | | | | | | | Performance Incentive Plan Bonus as % of Salary(1) | | | | | | | | Performance Incentive Plan Bonus as % of Salary(1) | | | | | | | | | | Threshold (2) | | | | Target (3) | | | | Maximum (4) | | | | | | | | Threshold(2) | | | | Target(3) | | | | Maximum(4) | | | | | | David Overton | | | | | | 24.8% | | | | | | | 110% | | | | | | | 192.5% | | | | | David Overton | | | | | | 20.6% | | | | | | | 110.0% | | | | | | | 151.3% | | | | | | | David M. Gordon | | | | | | 18.0% | | | | | | | 80% | | | | | | | 140.0% | | | | | David M. Gordon | | | | | | 15.0% | | | | | | | 80.0% | | | | | | | 110.0% | | | | | | | Matthew E. Clark | | | | | | 15.8% | | | | | | | 70% | | | | | | | 122.5% | | | | | Matthew E. Clark | | | | | | 14.1% | | | | | | | 75.0% | | | | | | | 103.1% | | | | | | | Scarlett May | | | | | | 14.6% | | | | | | | 65% | | | | | | | 113.8% | | | | | Scarlett May | | | | | | 12.2% | | | | | | | 65.0% | | | | | | | 89.4% | | | | | | | Keith T. Carango | | | | | | 14.6% | | | | | | | 65% | | | | | | | 113.8% | | | | | Keith T. Carango | | | | | | 12.2% | | | | | | | 65.0% | | | | | | | 89.4% | | | |
(1)
Awards are based on salaries in effect on February 26, 2020.March 1, 2023. (2)
The threshold award assumes the average achievement of 85%75% of the Company-wide adjusted EBITDAR objective(and, with respect to Mr. Carango, additionally bakery division adjusted Gross Contribution) objectives for the full fiscal year and none of the strategic objectives. (3)
The target award assumes the average achievement of 100% of the Company-wide adjusted EBITDAR objective(and, with respect to Mr. Carango, additionally the bakery division adjusted Gross Contribution) objectives for of the full fiscal year and 100% of the strategic objectives. (4)
The maximum award assumes the average achievement of 115% or more of the Company-wide adjusted EBITDAR objective(and, with respect to Mr. Carango, additionally bakery division adjusted Gross Contribution) objectives for the full fiscal year and 100% of the strategic objectives.
Payouts under the fiscal 20202023 Performance Incentive Plan are based 75% on the Company’s level of achievement of a financial performance objectiveobjectives (or, with respect to Mr. Carango, 50% on the Company’s level of achievement of financial performance objectives and 25% on bakery division’s level of achievement of financial performance objectives), and 25% on the Company’s level of achievement of certain strategic objectives. For corporate executives (including each of our Named Executive Officers other than Mr. Carango), the financial objective is company-wide adjusted EBITDAR, and the strategic objectives relate to company-wide initiatives. For bakery executives (including Mr. Carango),Carango, the payout is based 50% on a company-widefinancial objectives are adjusted EBITDAR objective, 25% on a bakery-divisionand bakery division adjusted EBITDAR objective,Gross Contributions, and 25% onthe strategic objectives specificrelate to the bakery division.division-specific initiatives. The financial objective component can be earned from 0-200%0-150% of target based on level of achievement, and the strategic objective can be earned from 0-100% of target based on level of achievement, resulting in a total bonus opportunity from 0-175%0-137.5% of target. ![[MISSING IMAGE: tm212345d1-fc_corporatebw.jpg]](https://capedge.com/proxy/PRE 14A/0001104659-21-042479/tm212345d1-fc_corporatebw.jpg)
![[MISSING IMAGE: fc_company-bw.jpg]](https://capedge.com/proxy/PRE 14A/0001104659-24-041237/fc_company-bw.jpg) The Compensation Committee selected adjusted earnings before interest, taxes, depreciation, amortization and rent (EBITDAR)EBITDAR as the most heavily weighted performance target in our annual plan for fiscal 2020. Like earnings before interest, taxes, depreciation and amortization (EBITDA),2023. Adjusted EBITDAR is a key driver of stockholder value in that it (i) affects not only earnings per share but also overall cash flow from operations, (ii) supports return on invested capital percentage rates and (iii) is a key driver of a publicly-traded restaurant company’s stock multiple. The Compensation Committee selected EBITDAR over EBITDA because EBITDAR removes the impact of lease accounting rules, to focus more specifically on our operating priorities for the year. Taking into consideration the projected operating environment for casual dining and specific Company objectives for fiscal 2020 (prior to the onset of the COVID-19 pandemic),2023, the Compensation Committee established adjusted EBITDAR goals that were consistent with our annual operating plan approved by the Board for fiscal 2020.2023. For purposes of the bonus plans, adjusted EBITDAR excludes the effects of items we do not consider indicative of our ongoing operations such as impairment charges, acquisitions and the effect of health and welfare plan related costs. Adjusted EBITDAR is a non-GAAP measure and is defined and reconciled from GAAP in Appendix A of this proxy statement. AtThe Compensation Committee selected adjusted Gross Contribution as the beginningbakery division financial performance objective to create more line of fiscal 2020, priorsight and less unexpected volatility in results for bakery division executives.
For the adjusted EBITDAR and bakery division adjusted Gross Contribution objective, a threshold award of 25% of target would pay out upon 75% performance achievement, and a maximum award of 150% of target would pay out upon 115% performance achievement. The strategic goals objectives pay out in proportion to the COVID-19 pandemic, the Compensation Committee established strategic objectives under the fiscal 2020 Performance Incentive Plan. In July 2020 the Committee approved revising the strategic objectives in order to better align management’s focus with the needspercentage of the business in light of the suddenobjective achieved and severe challenges faced by the Company as a result of the COVID-19 pandemic. The following chart table shows strategic objectives under the fiscal 2020 Performance Incentive Plan before and after these changes were made.do not pay out more than 100%.
| | Strategic Goals Specific to Company-Wide Objectives | | | | | Pre-Pandemic Goals | | | | Pandemic-Adjusted Goals | | | | | 1.
North Italia—Transition from Integration to Supporting Growth: Support planned growth; open new locations; include North Italia in financial planning and guidance; satisfy supply chain needs.
2.
FRC—Initiate Ongoing Management and Optimization: Develop 5-year plan for achieving growth and return on investment objective.
3.
Environmental, Social and Governance (ESG): Publish ESG report.
| | | | 1.
COVID-19 Response: Relaunch Full-Service Operations, Restore Liquidity, Right-Size Business: Reopen for full-service dining as state/local jurisdictions permit; right size corporate general and administrative expenses; reevaluate and reprioritize corporate projects.
2.
FRC and North Italia—Supporting Growth, Ongoing Management and Optimization: Support planned growth; open new North Italia locations; include North Italia in financial planning; satisfy North Italia supply chain needs; develop short- and long-term roadmap for FRC transition.
3.
ESG: Publish ESG report.
| | |
| | Strategic Goals Specific to Bakery Division Objectives | | | | | Pre-Pandemic Goals | | | | Pandemic-Adjusted Goals | | | | | 1.
Margin Expansion: Achieve identified margin improvement.
2.
Capacity Plan Actions: Improve overall equipment effectiveness (OEE) and total equipment effectiveness (TEEP); expand capacities.
3.
ESG: Reduce attrition levels by pre-determined levels; reduce water consumption and waste water treatment costs while maintaining or improving sanitary conditions.
| | | | 1.
COVID-19 Response: Achieve specified productivity and output objectives; implement a third shift and achieve staffing requirements.
2.
Capacity Plan Actions: Achieve specified capacity requirements.
3.
ESG: Reduce water consumption and waste water treatment costs while maintaining or improving sanitary conditions.
4.
Enterprise Resource Planning (ERP): Perform initial evaluation of potential ERP solutions; request RFPs from identified ERP solutions; review demos and evaluate; provide recommended solutions and prepare project plan.
| | |
Fiscal 20202023 Performance Achievement.Achievement. In February 2021,2024, the Compensation Committee reviewed our performance against the Company’s objectives for fiscal 2020. As a result of2023. Following this review, the financial impact ofCommittee certified that we achieved the COVID-19 pandemic on our business, the Company did not achieve the applicable adjusted EBITDAR objective ($474.7 million), or the minimum required adjusted EBITDAR level ($403.5 million) for any payout of the EBITDAR portion of the plan.following results: | | | | | | | Threshold/TargetTarget/Maximum | | | | Actual | | | | Performance vs. Target | | | | | | Company-wide adjustedAdjusted EBITDAR target (75%target—First half of year (37.5% of award) | | | | $403.5M/206.6M/$474.7M275.5M/$316.8M | | | | $186.8M257.0M | | | | Did not meet thresholdBelow Target
88% Payout | | | | | | Adjusted EBITDAR target—Second half of year (37.5% of award) | | | | $187.7M/$250.2M/$287.7M | | | | $240.6M | | | | Below Target
94% Payout | | | | | | Strategic initiatives (25% of award) ** Pandemic-Adjusted Goals ** | | | | | | •
Flower Child Growth | | | | Identify HR/Finance growth functions; identify and plan deployment of a new financial/operational dashboard; manage construction of all stand-alone Flower Child locations | | | | | | | | 100% Completed
100% Payout | | | | | | •
ERP System & Technology Initiatives | | | | Transition certain functions to new ERP system;
Strengthen technology security through specified initiatives and training | | | | | | | | 100% Completed
100% Payout | | | | | | •
Rewards Program | | | | Launch rewards program nationwide including media campaign and begin data analysis on acquisition and engagement for targeted marketing | | | | | | | | 100% Completed
100% Payout | | |
The Compensation Committee also reviewed our bakery division’s performance against its objectives for fiscal 2023 and certified that the bakery division achieved the following results: | | | | | | | Threshold/TargetTarget/Maximum | | | | Actual | | | | Performance vs. Target | | | | | | Adjusted EBITDAR target—First half of year (25% of award) | | | | $206.6M/$275.5M/$316.8M | | | | $257.0M | | | | Below Target
88% Payout | | | | | | Adjusted EBITDAR target—Second half of year (25% of award) | | | | $187.7M/$250.2M/$287.7M | | | | $240.6M | | | | Below Target
94% Payout | | | | | | Bakery division adjusted Gross Contribution target—First half of the year (12.5% of award) | | | | $15.1M/$20.1M/$23.1M | | | | $15.7M | | | | Below Target
37% Payout | | | | | | Bakery division adjusted Gross Contribution target—Second half of the year (12.5% of award) | | | | $14.4M/$19.2M/$22.1M | | | | $17.3M | | | | Below Target
77% Payout | | | | | | Bakery division strategic objectives (25% of award) | | | | | | •
COVID-19 Response: Relaunch Full-Service Operations, Restore Liquidity, Right-Size BusinessIncrease Production and Equipment Effectiveness
| | | | ReopenImprove full year overall equipment effectiveness at each bakery facility by predetermined percentage, maximize daily scheduled productive time, review and approve process parameters where possible for full-service dining as state/local jurisdictions permit; right size corporate general and administrative expenses; reevaluate and reprioritize corporate projects.all products | | | | | | | | 100%50% Completed
50% Payout | | | | | | •
FRC and North Italia—Supporting Growth, Ongoing Management and OptimizationBakery division-specific IT Benchmarks
| | | | Support planned growth; openGather ERP requirements, launch new North Italia locations; include North Italia in financial planning; satisfy North Italia supply chain needs; develop short-manufacturing execution system at both bakeries, and long-term roadmap for FRC transition.fully implement customer relationship management software and methodology | | | | | | | | 100%67% Completed
67% Payout | | | | | | •
ESGMidwest Bakery Strategic Actions
| | | | Publish ESG report.Identify third bakery site location; take preestablished steps to determine site timing and approval | | | | | | | | 100%66% Completed | | |
The Compensation Committee also reviewed our bakery division’s performance against its objectives for fiscal 2020 and certified that the bakery division achieved the following results:
| | | | | | Threshold/Target | | | | Actual | | | | Performance vs. Target | | | | | Company-wide adjusted EBITDAR target (50% of award) | | | | $403.5M/$474.7M | | | | $186.8M | | | | Did not meet threshold | | | | | Bakery adjusted EBITDAR target (25% of award) | | | | $13.7M/$16.1M | | | | $14.9M | | | | 92.8% | | | | | Bakery strategic objectives (25% of award)**Pandemic-Adjusted Goals** | | | | | | | | | | | | | | | | | •
COVID-19 Response
| | | | Achieve specified productivity and output objectives; implement a third shift and achieve staffing requirements. | | | | | | | | 100% Completed | | | | | •
Capacity Plan Actions for 2020
| | | | Achieve specified capacity requirements. | | | | | | | | 60% Completed | | | | | •
ESG
| | | | Reduce water consumption and waste water treatment costs while maintaining or improving sanitary conditions. | | | | | | | | 65% Completed | | | | | •
ERP
| | | | Perform initial evaluation of potential ERP solutions; submit requests for proposals to identified ERP providers; review responses, request demos and evaluate ERP providers; identify and engage appropriate solution; prepare project plan. | | | | | | | | 100% Completed
66% Payout | | |
As a result of our 20202023 performance, our Named Executive Officers would have received Bonuses under our fiscal 2020 Performance Incentive Plan, as follows: | | | | | | | Target Award | | | | 2020 Unadjusted
Bonus Payout | | | | Unadjusted Payout
Compared to Target | | | | | | David Overton | | | | | $ | 1,094,500 | | | | | | $ | 273,625 | | | | | | | 25% | | | | | | | David Gordon | | | | | $ | 540,000 | | | | | | $ | 135,000 | | | | | | | 25% | | | | | | | Matthew E. Clark | | | | | $ | 374,500 | | | | | | $ | 93,626 | | | | | | | 25% | | | | | | | Scarlett May | | | | | $ | 331,500 | | | | | | $ | 82,875 | | | | | | | 25% | | | | | | | Keith T. Carango | | | | | $ | 269,750 | | | | | | $ | 101,156 | | | | | | | 37.5% | | | |
When evaluating Bonuses payable to our Named Executive Officers under our fiscal 2020 Performance Incentive Plan, the Compensation Committee took into account the fact that the Company’s actual financial performance (with respect to sales, adjusted EBITDAR and ending cash balances) exceeded projections prepared in March and April of 2020 (after the COVID-19 pandemic was declared a National Public Health Emergency), which were prepared in connection with an amendment to the Company’s revolving credit facility and in connection with the Company entering into the Subscription Agreement with Roark. The Compensation Committee also considered the extraordinary efforts by management, including our Named Executive Officers, to support our business during the pandemic crisis. See “Executive Summary—2020 Annual Incentive/2018-2020 Long-Term Incentive Plan Outcomes” above. For all of these reasons, the Committee determined it would be appropriate to exercise its discretion under the fiscal 2020 Performance Incentive Plan and approve an adjustment to the final Bonus payments for an additional 10% of the target amount. As such, our Named Executive Officers received Bonuses under our fiscal 20202023 Performance Incentive Plan, as follows:
| | | | | | | Target Award | | | | 2020 Actual Bonus Payout | | | | Actual Payout Compared to Target | | | | | | | | Target Award | | | | 2023 Actual Bonus Payout | | | | Actual Payout Compared to Target | | | | | | David Overton | | | | | $ | 1,094,500 | | | | | | $ | 383,075 | | | | | | | 35% | | | | | David Overton | | | | | $ | 1,094,500 | | | | | | $ | 1,020,621 | | | | | | | 93.25% | | | | | | | David Gordon | | | | | $ | 540,000 | | | | | | $ | 189,000 | | | | | | | 35% | | | | | David M. Gordon | | | | | $ | 600,000 | | | | | | $ | 559,500 | | | | | | | 93.25% | | | | | | | Matthew E. Clark | | | | | $ | 374,500 | | | | | | $ | 131,075 | | | | | | | 35% | | | | | Matthew E. Clark | | | | | $ | 446,250 | | | | | | $ | 416,128 | | | | | | | 93.25% | | | | | | | Scarlett May | | | | | $ | 331,500 | | | | | | $ | 116,025 | | | | | | | 35% | | | | | Scarlett May | | | | | $ | 368,875 | | | | | | $ | 343,976 | | | | | | | 93.25% | | | | | | | Keith T. Carango | | | | | $ | 269,750 | | | | | | $ | 128,131 | | | | | | | 47.5% | | | | | Keith T. Carango | | | | | $ | 300,625 | | | | | | $ | 223,890 | | | | | | | 74.48% | | | |
20212024 Performance Incentive Plan. Given the extreme uncertainty regarding the ongoing impacts of the COVID-19 pandemic on our business in For fiscal 2021,2024 the Compensation Committee, decided, with the assistance of its independent compensation consultant, to establish two separate performance periods for the adjusted EBITDAR financial performance goal. The first performance period will cover the first half of fiscal 2021 beginningand based on December 30, 2020continued challenges and ending on June 29, 2021,uncertainty facing our business and the second performance period will coverindustry overall from supply chain volatility and inflation, decided to maintain the second half of fiscal 2021 beginning on June 30, 2021 and ending on December 28, 2021. In February 2021 the Compensation Committee established target adjusted EBITDAR for the first performance period. The Compensation Committee will establish target adjusted EBITDAR for the second performance period in July 2021. Additionally, the payout scale for the adjusted EBITDAR financial performance goals for fiscal 2021 was changed to allow threshold payout of 25% of target at 75% of adjusted EBITDAR attainment (at correspondingly reduced payout), which expands the performance goal range in recognition of continued COVID-19 uncertainty. Maximum payouts for the EBITDAR component were also reduced from 200% of target to 150% of target, in recognition of continued operation of our restaurants below full capacity. Thesame general structure of the strategic objectives component of the Performance Incentive Plan in effect for fiscal 2021 will not change.2023.
Long-Term Equity-Based Compensation We believe that equity-based compensation should be a significant component of total executive compensation to align executive compensation with our long-term performance and to encourage executives to make value-enhancing decisions for the benefit of our stockholders. Each of our Named Executive Officers
is eligible to receive equity compensation, which canmay consist of a mix of stock options, restricted stock, and restricted stock units, to encourage a focus on long-term stockholder value and to foster long-term retention. We approach equity compensation grants by considering the overall value of the grant (as opposed to the number of shares granted). In addition, the use of full value awards, such as restricted stock awards, reduces our total share usage versus granting only stock options. Equity grants to all staff members, including Named Executive Officers and other executives require approval from the Compensation Committee and, in considering whether to approve such equity grants, the Compensation Committee considers past grants, corporate and individual performance, the valuation of grants, and recommendations of our Chief Executive OfficerCEO and the Compensation Committee’s compensation consultant. The Compensation Committee has not established formal guidelines for the size of individual equity grants for our Named Executive Officers, but considers the factors listed above as well as market data in making such decisions. See “Market Positioning” above. Optimizing Share Usage. The exercise price of our stock options is the closing price of our stock on the grant date, which is also used to calculate the grant date fair value of other awards. We do not time our release of material non-public information for the purpose of affecting the value of our executives’ compensation, nor do we time our grants of equity-based compensation to take advantage of material non-public information. Our Compensation Committee generally makes grants to our corporate executives, including our Named Executive Officers, on an annual basis, except in the case of newly hired executives, promotions or other extraordinary events. Our equity grant procedures are available on our website at investors.thecheesecakefactory.com, by clicking on the link for “Governance.”
Equity Grants in 2020.2023. For fiscal 2020,2023, the Compensation Committee determined, with the assistance of its independent compensation consultant, that Named Executive Officers should continue to receive a designated value of equity comprised of a mix of 50% performance-based restricted stock subject to achievement of three equally weighted performance conditions (EPS;(total annual revenue growth; adjusted average annual sales per productive square foot; and adjusted annual controllable profit goals, as described in further detail below)below, in each case, over a three-year performance period), and 50%, based upon each executive’s designated preference, of any proportion ofall stock options (minimum 25%) (with the number of options to be granted determined based on a Black Scholes valuation) and/, an equal mix between stock options, time-based restricted stock, or time-basedall restricted stock (see table below for actual equity awards granted based on each executive’s election). The Compensation Committee believes that regardless of the choice elected by each executive, the resulting mix would strongly align the interests of our executives with those of our stockholders and our long-term performance. In the future, this allocation may vary, new performance targets may be chosen, and other forms of equity may be used. NonqualifiedNon-qualified Stock Options. The Compensation Committee believes that stock options are an appropriate vehicle for a portion of long-term equity compensation because they provide value only if our stock price increases over time, which aligns our executives’ interests with those of our stockholders. The Named Executive Officers’ 2020 stock options were granted at an exercise price of $40.16 per share, which wasour stock options is the closing price per share of our common stock on February 18, 2020, the date of grant and incrementallydate. Generally, our stock options vest as to 20% of the shares on each of the first five anniversaries of the grant date subject to continued employment through the applicable vesting date.
Time-Based Restricted Stock Awards. The time-based restricted stock granted to our Named Executive Officers during 20202023 vest as to 60% of the shares on the third anniversary of the grant date, and 20% on each of the fourth and fifth anniversaries of the grant date, and are subject to continued employment through the applicable vesting date. We also granted an award in February, 2020 of 2,490 shares of time-based restricted stock to Mr. Clark in recognition of his efforts to facilitate the Company’s acquisition of North Italia and the remaining business of Fox Restaurant Concepts LLC which will vest in full on the third anniversary of the grant date, subject to Mr. Clark’s continued employment through the vesting date. Performance-Based Restricted Stock. As described above, the performance-based restricted stock awards granted to the Named Executive Officers in 20202023 are subject to the achievement of three equally weighted performance conditions.conditions, which are described below. The total annual revenue growth, adjusted EPS,average annual sales per productive square foot and adjusted annual controllable profit goals are collectively referred to as the “Performance Conditions” and are subject to threshold and maximum potential payouts. Performance achievement is measured at the end of each fiscal year against pre-determined performance goals for each year of the three-year performance period, which are set for the full three-year period on the grant date. The number of shares earned at the end of the three-year performance period (if any) will be determined by averaging performance achievement for each of the three individual years. After the conclusion of the performance period, any earned shares are then subject to time-based vesting at the rate of 60% of the shares on February 18, 202316, 2026 and 20% of the shares on each of February 18, 202416, 2027 and February 18, 2025, subject to continued employment through each vesting date.16, 2028. If the threshold goal is
achieved, between 60-150% of the target shares will be eligible to vest, based on level of achievement. If the threshold goal is not achieved, the target shares are forfeited. We are not disclosing threshold goals at this time due to the sensitivity of these forecasts and correlation between our projected performance vis-à-vis the Performance Conditions and our stock price. The threshold goals will be disclosed at the end of the performance period along with the achievement levels and corresponding vesting of the performance-based restricted stock awards, if any. •
The EPS goal“Total Annual Revenue Growth Goal” is based upon the Company’s averagetotal annual fully-diluted adjusted EPSrevenue growth for fiscal years 2020, 20212023, 2024, and 2022.2025. This metric was selected as it is believed to be the most significant part of our business strategy that has a high correlation with stockholder returns.support strategic growth objectives.
•
The sales per square foot goal“Adjusted Average Annual Sales Per Productive Square Foot Goal” is based upon The Cheesecake Factory Restaurants’restaurants’ adjusted average annual sales per productive square foot over Fiscal Years 2020, 2021,for restaurants open for the full year for fiscal years 2023, 2024, and 2022.2025. Sales per productive square foot was selected as it is a stated goal of the company and a strong driver of long-term financial performance. In response to the COVID-19 pandemic, occupancy restrictions were enacted in many jurisdictions where we operate, affecting our ability to utilize all square footage that otherwise would have been available for dine-in guests. As a result, achievementAchievement of this goal will be determined based upon average annual sales per productive square foot available for use during the applicable measurement period.
•
The profit goal“Adjusted Annual Controllable Profit Goal” is based upon The Cheesecake Factory Restaurants’ averagerestaurants’ adjusted annual adjusted controllable profit over Fiscal Years 2020, 2021,for fiscal years 2023, 2024, and 2022.2025. “Controllable profit” only includes expenses over which restaurant management has direct control (e.g. ingredient, food and beverage costs, labor, dining room expenses, etc.). This metric was selected as it is the key profit metric managed at the restaurant level and aligns with our stated priorities.
In February 2020,2023, the following grants were made to our Named Executive Officers under The Cheesecake Factory Stock Incentive Plan, as amended (the “Stock Plan”) in recognition of their performance during fiscal 2019 and expected future contributions, to target competitive compensation levels appropriate to the executive’s tenure in his or her role, and to align their interests with the long-term interests of our stockholders: | | | Name | | | | Number of
Shares Subject to
Nonqualified
Stock Options(1) | | | | Number of
Restricted Stock
Awards-Performance
Targets(2) | | | | Number of
Restricted Stock
Awards-Time
Based Vesting(3) | | | | Value of
Combined Grants
(thousands) | | | | Name | | | | Number of
Shares Subject
to Non-qualified
Stock Options | | | | Number of
Restricted Stock
Awards-Performance
Targets(1) | | | | Number of
Restricted Stock
Awards-Time
Based Vesting(2) | | | | Value of
Combined Grants
(thousands) | | | | | | David Overton | | | | | | 336,900 | | | | | | | 56,050 | | | | | | | — | | | | | | $ | 4,497 | | | | | David Overton | | | | | | — | | | | | | | 69,280 | | | | | | | 69,280 | | | | | | $ | 5,600,595 | | | | | | | David M. Gordon | | | | | | 76,300 | | | | | | | 12,730 | | | | | | | — | | | | | | $ | 1,020 | | | | | David M. Gordon | | | | | | — | | | | | | | 17,320 | | | | | | | 17,320 | | | | | | $ | 1,400,149 | | | | | | | Matthew E. Clark | | | | | | 68,900 | | | | | | | 11,460 | | | | | | | 2,490(4) | | | | | | $ | 1,020 | | | | | Matthew E. Clark | | | | | | 39,720 | | | | | | | 15,480 | | | | | | | — | | | | | | $ | 1,250,715 | | | | | | | Scarlett May | | | | | | 18,800 | | | | | | | 6,230 | | | | | | | 3,100 | | | | | | $ | 500 | | | | | Scarlett May | | | | | | — | | | | | | | 7,740 | | | | | | | 7,740 | | | | | | $ | 625,702 | | | | | | | Keith T. Carango | | | | | | 30,000 | | | | | | | 5,100 | | | | | | | — | | | | | | $ | 405 | | | | | Keith T. Carango | | | | | | — | | | | | | | 6,380 | | | | | | | 6,380 | | | | | | $ | 515,759 | | | |
(1)
See “Long-Term Equity-Based Compensation — NonqualifiedCompensation—Performance-Based Restricted Stock Options” above for a description of exercise price andperformance-based vesting conditions. (2)
See “Long-Term Equity-Based Compensation — Performance-BasedCompensation—Time-Based Restricted Stock Awards” above for a description of performance -basedtime-based vesting conditions. (3)
See “Long-Term Equity-Based Compensation — Time-Based Restricted Stock” above for a description of time -based vesting conditions.
(4)
Includes an award granted in February, 2020 of 2,490 restricted shares in recognition of Mr. Clark’s efforts to facilitate the Company’s acquisition of North Italia and the remaining business of Fox Restaurant Concepts LLC which will vest in full on the third anniversary of the grant date, subject to Mr. Clark’s continued employment through the vesting date.
Attainment of 2018 Grant Performance Condition. In 2018, as part of our annual long long-term incentive program, our Named Executive Officers at that time were granted performance-based restricted shares (“RSAs”) subject to specific EPS goals. The EPS RSAs were subject to achievement of a cumulative fully diluted EPS target of $9.56 for a three-year performance period (2018—2020) (the “EPS Target”), were eligible to be earned from 60% for threshold achievement of EPS target to 150% for maximum achievement of EPS target (linear interpolation is applied for achievement between threshold and maximum), and would be forfeited if the Company failed to achieve a threshold goal of $8.44. The Company’s cumulative adjusted fully diluted EPS for fiscal years 2018 through 2020 was $3.63 or 38% of target, which was below the required threshold for payout. Despite the significant impact of the COVID-19 pandemic on our business, which
significantly impairedAttainment of 2021 Grant Performance Condition. In 2021, as part of our annual long-term incentive program, certain of our Named Executive Officers were granted performance-based restricted shares (the “2021-2023 RSAs”), which were eligible to be earned based on achievement of three equally weighted performance goals during a performance period beginning December 30, 2020 and ending January 2, 2024 (the “2021-2023 Performance Period”). The three performance goals were total annual consolidated revenue growth, adjusted average sales per productive square foot from Company owned and operated The Cheesecake Factory restaurants as reported in the Company’s abilityForm 10-K, and adjusted average annual controllable profit margins for Company owned and operated The Cheesecake Factory restaurants (“2021-2023 Controllable Profit”). During the 2021-2023 Performance Period, the Company’s total annual revenue growth was 65% resulting in 103% of the target number of 2021-2023 RSAs subject to achievethis metric being earned, the EPS TargetCompany’s adjusted sales per productive square foot amount was $1,147 resulting in 150% of the Compensation Committee remains committedtarget number of the 2021-2023 RSAs subject to paying for performancethis metric being earned, and electedthe Company’s adjusted average annual 2021-2023 Controllable Profit amount was 27.7% resulting in 65% of the target number of 2021-2023 RSAs subject to not adjust this metric.metric being earned. Accordingly, thesean aggregate of 106% of the 2021-2023 RSAs were not earned based on achievement of the three performance goals. The earned 2021-2023 RSAs are subject to service-based vesting at a rate of 60% of the award vesting on the third anniversary of the grant date and have been forfeited.20% of the award vesting on each of the fourth and fifth anniversaries of the grant date.
Retirement Plans NonqualifiedNon-qualified Deferred Compensation Plan. The Cheesecake Factory Executive Savings Plan (“Executive Savings Plan”) is a nonqualifiednon-qualified deferred compensation plan that provides a tax-deferred savings vehicle for our “highly compensated” executives (as defined in the Executive Savings Plan), as well as our non-employee directors. At the end of fiscal 2020,2023, approximately 340430 staff members, all of our Independent Directors, and all of our Named Executive Officers were eligible to participate. Approximately 510465 current and former staff members and twoone Independent DirectorsDirector maintained account balances. Additional information regarding this plan appears in this Proxy Statement in the section below entitled “Compensation of Named Executive Officers-NonqualifiedOfficers-Non-qualified Deferred Compensation.”
The Executive Savings Plan permits us to match a portion of participants’ contributions with Company contributions, on a pre-tax basis to participants (other than Independent Directors). Since inception, we made a partial matching contribution to the Executive Savings Plan each year, except during the period of May 2009 through October 2011, when the Company match was suspended. We currently match 25% of the first 4% of salary and/or Bonus deferred. One hundred percent of a participant’s Bonus, if any, and up to 50% salary may be deferred. Pension Benefits.Benefits. We do not maintain a pension plan for executives or staff members. However, in order to continue to retain Mr. Overton’s services as our Chief Executive OfficerCEO and in recognition of his unique contributions as our founder, Mr. Overton’s employment agreementEmployment Agreement (defined below) provides for a “Founder’s Retirement Benefit” pursuant to which Mr. Overton (or his beneficiary or estate, if he is deceased) is entitled to fixed annual payments of $650,000 for a period of ten years following his separation from service for any reason, payable in equal monthly installments, as further described in his employment agreement.Mr. Overton’s Employment Agreement. Our obligation with respect to the Founder’s Retirement Benefit is unfunded and unsecured, and is payable from our general, unrestricted assets. For additional information concerning Mr. Overton’s employment agreement,Employment Agreement, see the section in this Proxy Statement entitled “Compensation of Named Executive Officers-Employment Agreements.” Other Benefits and Perquisites All of our executives, including our Named Executive Officers, are eligible to participate in our broad-based benefit programs, which include medical, dental, vision, life insurance and long-term disability programs, as well as paid vacation and a sabbatical leave program. Our sabbatical leave program has been suspended in response to challenges related to the COVID-19 pandemic. We look forward to recommencing this benefit when circumstances allow. We also provide group term life insurance to our executives, including each of our Named Executive Officers, as well as all other salaried staff members, at the lesser of one-times base salary or $750,000. The life insurance benefit is reduced to 65% of base salary at age 65 and 50% of base salary at age 70. The IRS requires that the portion of the value of such policy exceeding $50,000 be deemed imputed income to the staff member and provides a formula by which the imputed income is calculated.
We also provide the following limited perquisites to our executives, including Named Executive Officers, that vary based on the executive’s level: •
The choice of a company-leased vehicle or automobile allowance. This program also is offered to certain other executives and selected additional management positions. Each individual participating in our leased car program is assigned imputed income, according to IRS regulations, for his or her personal use of the automobile or is provided with an automobile allowance, which is subject to taxation at the individual’s tax rate. The typeselection of vehiclevehicles and amount of the allowance varies with the executive’s level. •
A company-paid executive physical every two years.year. This program is offered to staff members at the level of Senior Vice President and above, including our Named Executive Officers. •
Relocation expenses. Relocation expenses are reimbursed in accordance with the terms of any employment agreement or as determined on a case-by-case basis.
We believe that these benefits enhance our ability to attract and retain high-quality talent at a modest cost and help to elevate our Company as an employer of choice among our competitors, including continuing to be recognized by FORTUNE® Magazine as one of the “100 Best Companies to Work For®” for seven consecutive years (due to delays related to the COVID-19 pandemic, Fortune® Magazine has not yet released its “100 Best Companies to Work For®” for 2021).competitors. The amounts we paid related to perquisites provided to our Named Executive Officers in fiscal 20202023 are disclosed in the section entitled “Compensation of Named Executive Officers—Summary Compensation Table.” Potential Benefits Upon Termination and Change in Control The Compensation Committee recognizes that the possibility of the termination of an executive officer’s employment, and the uncertainty it creates, may result in the loss or distraction of the executive officer, and present challenges in recruiting potential executive officers, all to the detriment of the Company and its stockholders. To help ensure that the Company has the continued attention and dedication of these executives and the availability of their continued service, and to focus executive officers on stockholder interests when considering strategic alternatives, the Named Executive Officers are eligible for certain payments and benefits upon a qualifying termination of employment that are consistent with the Company’s overall philosophy and market practices. These potential severance payments are provided under the terms of our existing employment agreements with our Named Executive Officers. For more information, see “Compensation of Named Executive Officers-Potential Payments upon Termination or Change in Control” in this Proxy Statement. Furthermore, we do not provide for any automatic “single trigger” equity vesting or other payments upon a change in control and we do not provide for any tax gross-up payments that could be related to change in control excise taxes. Our Stock Plan provides for a “double trigger,” such that equity awards will automatically accelerate if a participant incurs a qualifying termination of employment (without cause or for good reason) within a specified time period following a change in control of the Company. In addition, in the event of a change in control of the Company, if outstanding awards issued under the Stock Plan are not continued, converted, assumed or replaced by the surviving or acquiring entity, then such outstanding awards will fully vest as of immediately prior to such change in control. Oversight of Named Executive Officer Compensation Compensation Committee. Our Compensation Committee determines the compensation of our Named Executive Officers, including their base salaries, bonus, and equity-based compensation, and is supported in that process by an independent compensation consultant and members of senior management, including our CEO, Chief ExecutivePeople Officer Senior Vice President of Human Resources and Vice President of Compensation and Benefits.Total Rewards. The Compensation Committee regularly evaluates our compensation programs to ensure they support our business objectives. The Compensation Committee’s charter is available on our website at investors.thecheesecakefactory.com, by clicking on the link for “Governance.” Role of Outside Consultants. For fiscal 2020,2023, the Compensation Committee engaged FW Cook to serve as its independent compensation consultant. Our independent compensation consultant provides detailed evaluation and recommendations regarding our executive and Board compensation programs and advises the Compensation Committee with respect to structuring our compensation plans to achieve our business
objectives. FW Cook was retained by and reports directly to the Compensation Committee and does not provide any other services to the Company. The Compensation Committee assessed the independence of its compensation consultants and analyzed whether the work of FW Cook raised any conflict of interest, pursuant to the rules of the SEC and Nasdaq. The Compensation Committee determined, basedBased on this review, thatthe Compensation Committee did not identify any conflict of interest or concerns as to whether FW Cook is independent with respect to the work of FW Cook as compensation consultant to the Compensation Committee does not create any conflict of interest and that FW Cook is independent.Committee. Role of Chief Executive OfficerCEO in Compensation Decisions. Our Chief Executive OfficerCEO provides the Compensation Committee with his assessment of the performance of each Named Executive Officer (other than himself) and his perspective on the factors described above under “Overview of Compensation Program-Factors Considered in Making Compensation Decisions” when developing his recommendations for each Named Executive Officer’s compensation (other than his own). Our Senior Vice President of Human
ResourcesChief People Officer and our Vice President of Compensation and BenefitsTotal Rewards work with our Chief Executive OfficerCEO during this process by reviewing market data and other performance factors. The Compensation Committee discusses our Chief Executive Officer’sCEO’s recommendations, consults with its outside compensation consultant, and then approves or modifies the recommendations in collaboration with the Chief Executive Officer.CEO.
Compensation of our Chief Executive Officer.CEO. The Compensation Committee determines the compensation of our Chief Executive OfficerCEO (including the terms of his employment agreement), following the same principles as are applied to compensation determinations for the other Named Executive Officers. The Compensation Committee solicits our Chief Executive Officer’sCEO’s perspective on his own compensation but makes determinations regarding his compensation independently and without him or other Named Executive Officers present. Governance Considerations Risk Considerations. The Compensation Committee reviews our employee compensation policies and practices, including those for non-executive officers, on an annual basis to assess how those policies and practices may affect risk-taking by employees. During its review in fiscal 2020,2023, the Compensation Committee determined that our compensation programs are appropriately weighted toward long-term incentives and include policies designed to deter undue risk-taking by employees. These policies include the Clawback Policy, stock retention and ownership policies, and policies against short sales and hedging (see “Policies Regarding Hedging, Short Sales, Publicly Traded Derivatives, Margin Accounts and Pledges”). Based on this assessment, we determined that our compensation policies and practices are not reasonably likely to have a material adverse effect on the Company. Clawback Policy; Forfeitures. We maintain a comprehensive clawback policy (our Policy on Reimbursement of Incentive Payments and Equity Awards, or the “Clawback Policy”), which applies to bonus payments and equity awards (the “Clawback Policy”).awards. In 2023, the Company revised this policy to align with the new Nasdaq regulatory requirements. Our Clawback Policy, requiresas revised, provides that the Company must reasonably promptly recover from certain of our executives to agree in writing to repay allcurrent or aformer executive officers the portion of any Bonus payments and/or equity award(s), toincentive-based compensation that is erroneously awarded in the extent permitted by law and deemed appropriate byevent the Audit Committee, when we areCompany is required by applicable law or applicable accounting or auditing principles to restate our financial statementsprepare an accounting restatement to correct an accounting error in any interim or annual financial statement filed with the SEC as a result ofCompany’s material noncompliance with applicableany financial reporting requirements andrequirement under securities laws, including restatements that correct an error in previously issued financial statements that is material to the previously issued financial statements or that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period, regardless of fault or conduct of the executive (subject to certain limited exceptions under the Nasdaq rules). Additionally, in the case of a restatement, our Clawback Policy provides the Compensation Committee with discretion to recoup bonus and/or equity award(s) were directly based on those financial statements. Additionally,awards, including, but not limited to, incentive-based compensation, paid or granted to a covered current or former executive officer during the Compensation Committee may (i) causeprior three-year period who engaged in fraud or intentional misconduct contributing to the cancellation of any award of any Option, SAR, Restricted Stock Grant or Stock Unit under the Stock Plan (“Award”), (ii) require reimbursement of any Award byneed for such a participant under the Stock Plan and (iii) effect any other right of recoupment of equity or other compensation provided under the Stock Plan or otherwiserestatement in accordance with Company policies (including without limitation the Company’s Clawback Policy) and/or applicable law. If the service of a Stock Plan participant is terminated for Cause (as defined under the Stock Plan), then all Options, SARs, unvested portions of Stock Units and unvested portions of Restricted Stock Grants terminate and are forfeited immediately without consideration as of the termination date.Policy.
Stock Ownership Requirements. Stock ownership guidelines applicable to certain of our executive officers, including all current Named Executive Officers, provide that certain executives are required to acquire (and thereafter maintain ownership of)own a minimum number of shares of our common stock with a value equal to the multiple of such executive’s annual base salary, as follows: | | | Position with Company | | | | Multiple of Salary | | | | | | Chief Executive OfficerCEO of the Company | | | | | | 6x | | | | | | | President of the Company or of our wholly owned subsidiaries, The Cheesecake Factory Restaurants, Inc. or The Cheesecake Factory Bakery Incorporated | | | | | | 2x | | | | | | | Executive Vice President of the Company | | | | | | 2x | | | |
A newly appointed covered officer (other than a newly appointed Chief Executive Officer)CEO) has five years to comply with the guidelines. A newly-appointed Chief Executive OfficerCEO has seven years to comply with these guidelines. For purposes of this policy, stock ownership includes (i) any shares owned by an executive or his or her immediate family members or held by him or her as part of a tax or estate plan in which the
executive retains beneficial ownership, and (ii) unvested restricted stock or restricted stock units. Compliance is calculated annually, on the first day of the fiscal year. For purposes of determining compliance with the policy, “value” means an assumed per-share value based on the average of the closing price of our common stock on the last day of each of the previous four fiscal quarters. An exception to the policy exists if acquisition of shares would result in a violation of our Special Trading Policy and Procedures. Certain hardship exceptions are also available at the discretion of the Compensation Committee. Due to a sudden and significant decrease to the value of our stock caused by the COVID-19 crisis, not allAll of our Named Executive Officers met applicableare in compliance with our executive stock ownership guidelinespolicy as of March 15, 2021.the last day of 2023. Other Considerations Impact of Accounting and Tax Treatments on Compensation. Accounting and tax considerations play a role in the design of our executive compensation program. Accounting rules, such as Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”)FASB ASC Topic 718, require us to expense the estimated fair market value of our stock-based compensation, which reduces the amount of our reported profits. The Compensation Committee considers the amount of this expense and the financial impact to us in determining the amount of equity compensation awards to grant to executives. Section 162(m) of the Internal Revenue Code (“Code”) and the regulations promulgated thereunder limit to no more than $1 million per taxable year, the allowable Company deduction for compensation paid to certain current and former executive officers of the Company (although there historically was an exception to this $1 million annual limitation for certain performance-based compensation).Company. As a result, we expect that compensation paid per year to our Named Executive Officers and certain other current and former executive officers in excess of $1 million generally will not be deductible, subject to limited exceptions.deductible. The Compensation Committee generally seeks to preserve tax deductions for executive compensation where available but may make compensation decisions based on other factors when it believes doing so is in the best interest of the Company and its stockholders. Further, the Compensation Committee also reserves the right to make changes or amendments to existing compensation programs and arrangements, including changes or amendments that may result in the loss of tax deductions, if the Compensation Committee believes it is in the best interests of the Company and its stockholders to do so. Code Section 409A limits flexibility with respect to the time and form of payment of nonqualifiednon-qualified deferred compensation. If a payment or award is subject to Code Section 409A but does not meet the requirements that exempt such amounts from taxation under that section, the recipient is subject to (i) income tax at the time the payment or award is not subject to a substantial risk of forfeiture, (ii) an additional 20% federal tax at that time, (iii) possible interest and penalties, and (iv) possible additional state taxes. While Code Section 409A is also very complex and we cannot guarantee compliance with all of its requirements, we have made modifications to our plans and arrangements such that payments or awards under those arrangements either are intended not to constitute “deferred compensation” for Code Section 409A purposes (and will thereby be exempt from the requirements of Code Section 409A) or, if they constitute “deferred compensation,” are intended to comply with the Code Section 409A statutory provisions and final regulations.
The NEO Employment Agreements provide that, if a Named Executive Officer (other than our Chief Executive Officer)CEO) is subject to additional taxes imposed by Code Section 409A which relate solely to the timing of payment for the severance benefits under his or her prior employment agreement (if any), then within 60 days after the determination that such Code Section 409A taxes are due, we would pay the executive a cash payment so that the Named Executive Officer would be in the same position on an after-tax basis that the executive would have been in if no Code Section 409A taxes and related interest and/or penalties had been imposed.
COMPENSATION COMMITTEE REPORT The following Compensation Committee report does not constitute soliciting material and is not deemed filed or incorporated by reference into any other Company filing under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, except to the extent we specifically incorporate this Compensation Committee report by reference thereto. The Compensation Committee has reviewed the Compensation Discussion and Analysis and has discussed its content with management. Based on this review and our discussions with management, the Compensation Committee recommended to our Board that the Compensation Discussion and Analysis be included in this Proxy Statement and be incorporated by reference in the Company’s Annual Report on Form 10-K. | | Dated: , 20212024 | | | Respectfully submitted, | | | | | | | Alexander L. Cappello, Chairman
Edie A. Ames
Adam S. Gordon
Jerome I. Kransdorf
Laurence B. Mindel
Herbert Simon | |
COMPENSATION OF NAMED EXECUTIVE OFFICERS The following table sets forth summary compensation information with respect to our Named Executive Officers for the fiscal years ended January 2, 2024, January 3, 2023, and December 29, 2020, December 31, 2019 and January 1, 2019.28, 2021. Summary Compensation Table | | Name and
Principal Position | | | | Fiscal
Year | | | | Salary
($) | | | | | | | Name and
Principal Position | | | | Fiscal
Year | | | | Salary
($)(1) | | | | Bonus
($) | | | | Stock
Awards
($) | | | | Option
Awards
($)(2) | | | | Non-Equity
Incentive Plan
Compensation
($) | | | | Change in
Pension
Value and
non-qualified
Deferred
Compensation
Earnings
($)(3) | | | | All Other
Compensation
($)(4) | | | | Total
($) | | | | | | David Overton
Chairman of the Board and CEO | | | | | | 2023 | | | | | | | 995,000 | | | | | - | | | | | | 5,600,595 | | | | | - | | | | | | 1,020,621 | | | | | - | | | | | | 42,703 | | | | | | | 7,658,919 | | | | | | | | 2022 | | | | | | | 1,014,135 | | | | | - | | | | | | 5,301,316 | | | | | - | | | | | | 835,377 | | | | | - | | | | | | 30,916 | | | | | | | 7,181,744 | | | | | | | | 2021 | | | | | | | 1,010,308 | | | | | - | | | | | | 5,099,931 | | | | | - | | | | | | 1,234,049 | | | | | - | | | | | | 30,916 | | | | | | | 7,375,204 | | | | | | | David M. Gordon
President, The Cheesecake Factory Incorporated | | | | | | 2023 | | | | | | | 746,539 | | | | | - | | | | | | 1,400,149 | | | | | - | | | | | | 559,500 | | | | | - | | | | | | 34,554 | | | | | | | 2,740,742 | | | | | | | | 2022 | | | | | | | 758,538 | | | | | - | | | | | | 1,323,342 | | | | | - | | | | | | 439,632 | | | | | - | | | | | | 32,973 | | | | | | | 2,554,485 | | | | | | | | 2021 | | | | | | | 698,942 | | | | | - | | | | | | 1,276,357 | | | | | - | | | | | | 626,890 | | | | | - | | | | | | 33,349 | | | | | | | 2,635,538 | | | | | | | Matthew E. Clark
Executive Vice President and Chief Financial Officer | | | | | | 2023 | | | | | | | 601,154 | | | | | - | | | | | | 625,702 | | | | | | | 625,013 | | | | | | | 416,128 | | | | | - | | | | | | 17,034 | | | | | | | 2,285,031 | | | | | | | | 2022 | | | | | | | 576,942 | | | | | - | | | | | | 1,200,148 | | | | | - | | | | | | 326,289 | | | | | - | | | | | | 11,583 | | | | | | | 2,114,962 | | | | | | | | 2021 | | | | | | | 564,692 | | | | | - | | | | | | 1,158,788 | | | | | - | | | | | | 465,939 | | | | | - | | | | | | 10,348 | | | | | | | 2,199,767 | | | | | | | Scarlett May
Executive Vice
President, General
Counsel and Secretary | | | | | | 2023 | | | | | | | 562,740 | | | | | - | | | | | | 625,702 | | | | | - | | | | | | 343,976 | | | | | - | | | | | | 23,896 | | | | | | | 1,556,314 | | | | | | | | 2022 | | | | | | | 540,796 | | | | | - | | | | | | 611,996 | | | | | - | | | | | | 270,381 | | | | | - | | | | | | 16,939 | | | | | | | 1,440,112 | | | | | | | | 2021 | | | | | | | 522,115 | | | | | - | | | | | | 573,897 | | | | | - | | | | | | 384,759 | | | | | - | | | | | | 16,666 | | | | | | | 1,497,437 | | | | | | | Keith T. Carango
President, The Cheesecake Factory Bakery Incorporated | | | | | | 2023 | | | | | | | 458,798 | | | | | - | | | | | | 515,759 | | | | | - | | | | | | 223,890 | | | | | - | | | | | | 34,887 | | | | | | | 1,233,334 | | | | | | | | 2022 | | | | | | | 441,827 | | | | | - | | | | | | 480,854 | | | | | - | | | | | | 163,065 | | | | | - | | | | | | 16,210 | | | | | | | 1,101,956 | | | | | | | | 2021 | | | | | | | 427,115 | | | | | - | | | | | | 467,322 | | | | | - | | | | | | 265,888 | | | | | - | | | | | | 17,291 | | | | | | | 1,177,616 | | | |
Bonus
($)(1)
| | | | Restricted
Stock/Units
Awards
($)(2)
| | | | Option
Awards
($)(2)
| | | | Non-Equity
Incentive Plan
Compensation
($) | | | | All Other
Compensation
($)(3)
| | | | Total
($) | | | | | David Overton
Chairman of the Board and
Chief Executive Officer
| | | | |
| 2020
2019
2018 | | | | | |
| 914,635
995,000
995,000 | | | | | |
| 109,450
-
- | | | | | |
| 2,250,968
3,272,733
2,098,876 | | | | | |
| 2,245,964
1,090,506
2,095,964 | | | | | |
| 273,625
1,094,500
930,325 | | | | | |
| 119,395
263,150
146,986 | | | | | |
| 5,914,037
6,715,889
6,267,151 | | | | | | David M. Gordon
President,
The Cheesecake Factory
Incorporated
| | | | |
| 2020
2019
2018 | | | | | |
| 615,673
646,154
621,154 | | | | | |
| 54,000
-
- | | | | | |
| 511,237
741,083
489,424
| | | | | |
| 508,659
245,364
485,123 | | | | | |
| 135,000
516,923
422,385 | | | | | |
| 49,518
91,029
58,230 | | | | | |
| 1,874,087
2,240,553
2,076,316 | | | | | | Matthew E. Clark
Executive Vice President
and
Chief Financial Officer
| | | | |
| 2020
2019
2018 | | | | | |
| 486,981
506,923
483,846 | | | | | |
| 37,450
-
- | | | | | |
| 560,232
451,094
447,070 | | | | | |
| 459,326
449,834
444,209 | | | | | |
| 93,625
354,846
287,888 | | | | | |
| 29,939
53,693
31,153 | | | | | |
| 1,667,553
1,816,390
1,694,166 | | | | | | Scarlett May
Executive Vice President,
General Counsel and
Secretary
| | | | |
| 2020
2019
2018 | | | | | |
| 464,961
487,692
304,052 | | | | | |
| 33,150
-
- | | | | | |
| 374,693
363,637
359,766 | | | | | |
| 125,331
121,633
119,155 | | | | | |
| 82,875
317,000
167,989 | | | | | |
| 34,467
44,159
227,804 | | | | | |
| 1,115,477
1,334,121
1,178,766 | | | | | | Keith T. Carango
President,
The Cheesecake Factory
Bakery Incorporated
| | | | |
| 2020
2019
2018 | | | | | |
| 379,173
401,000
386,250 | | | | | |
| 26,975
-
- | | | | | |
| 204,816
294,592
255,502 | | | | | |
| 199,997
96,468
135,581 | | | | | |
| 101,156
254,134
92,925 | | | | | |
| 23,962
35,267
21,295 | | | | | |
| 936,079
1,081,461
891,553 | | | |
(1)
Amounts represent a Bonus payments of 10% of the target amount(1)
Unused vacation time cashed-out under the fiscal 2020 Performance Incentive Plan approved as a resultCompany’s vacation cash-out policy is included under Salary. In 2023 the following amounts of the Compensation Committee’s exercise of discretion in recognition of the fact that the Company’s financial performance exceeded internal projections (with respect to sales, adjusted EBITDARvacation were cashed out: for Mr. Gordon, $2,885; and ending cash balances) as well as the extraordinary efforts by management to support our business during the pandemic crisis. See “Executive Summary—2020 Annual Incentive/2018-2020 Long-Term Incentive Plan Outcomes” above.for Mr. Clark, $11,442. Mr. Overton, Ms. May and Mr. Carango did not cash-out any unused vacation. (2)
The value of performance-vesting restricted stock and restricted stock units is computed assuming achievement of performance goals at target level.level based on probable outcomes of such performance goals under ASC Topic 718. Amounts shown do not reflect compensation actually received or that may be realized in the future by the Named Executive Officer. In accordance with SEC regulations, these amounts reflect the aggregate grant date fair value computed in accordance with FASB ASC Topic 718 for stock and option awards made in the referenced fiscal year. Assuming attainment at maximum performance, the fair value of the 20202023 performance-vesting restricted stock is: (i) for Mr. Overton, $3,376,452;$4,200,446; (ii) for Mr. Gordon, $766,855;$1,050,112; (iii) for Mr. Clark, $690,350;$938,552; (iv) for Ms. May, $375,295;$469,276; and (v) for Mr. Carango, $307,224.$386,819. Performance stock awards are subject to performance and service-vesting requirements. See Note 1815 of the Notes to Consolidated Financial Statements in our Annual Report for information, including assumptions made, regarding the valuation of equity awards. (3)
Mr. Overton’s “Founder’s Retirement Benefit” had a loss of $197,000, $650,000, and $213,000 in 2023, 2022, and 2021 respectively.
(3)
(4)
“All other compensation” for fiscal 20202023 includes the following: | Name | | Automobile
Program
($)(a) | | ESP
Company
Match
($)(b) | | Dividends
Paid or
Accrued on
Unvested
Restricted
Stock
($)(c) | | Life
Insurance
($)(d) | | Executive
Physical
Exam
($)(e) | | Total
($) | | | Automobile
Program
($)(a) | | ESP
Company
Match
($)(b) | | Life
Insurance
($)(c) | | Executive
Physical
Exam
($)(d) | | Total
($) | | | Mr. Overton | | | | 22,882 | | | | | — | | | | | 88,479 | | | | | 8,034 | | | | | — | | | | | 119,395 | | | | | | 34,669 | | | | | — | | | | | 8,034 | | | | | — | | | | | 42,703 | | | | Mr. Gordon | | | | 20,035 | | | | | 6,157 | | | | | 20,230 | | | | | 3,096 | | | | | — | | | | | 49,518 | | | | | | 30,543 | | | | | 554 | | | | | 3,457 | | | | | — | | | | | 34,554 | | | | Mr. Clark | | | | 11,000 | | | | | — | | | | | 17,669 | | | | | 1,270 | | | | | — | | | | | 29,939 | | | | | | 13,399 | | | | | — | | | | | 1,435 | | | | | 2,200 | | | | | 17,034 | | | | Ms. May | | | | 13,538 | | | | | 4,650 | | | | | 11,590 | | | | | 1,214 | | | | | 3,475 | | | | | 34,467 | | | | | | 13,934 | | | | | 5,208 | | | | | 2,554 | | | | | 2,200 | | | | | 23,896 | | | | Mr. Carango | | | | 14,400 | | | | | — | | | | | 7,740 | | | | | 1,822 | | | | | — | | | | | 23,962 | | | | | | 31,759 | | | | | — | | | | | 3,128 | | | | | — | | | | | 34,887 | | |
(a)
Automobile Program: Each Named Executive Officer has the choice of a company-leased vehicle or automobile allowance. We assign imputed income, according to IRS regulations, for personal use of a Company-leased vehicle. (b)
Executive Savings Plan Matching Contributions: Each of our Named Executive Officers is eligible to participate in our Executive Savings Plan, a nonqualifiednon-qualified deferred compensation plan. Additional information regarding this plan appears in this Proxy Statement in the section entitled “NonqualifiedNon-qualified Deferred Compensation.” (c)
Dividends on Unvested Restricted Stock: Under the terms of our Stock Incentive Plan, holders of unvested restricted stock have rights to dividend, provided, that any dividends received on shares of unvested restricted stock granted under the Stock Incentive Plan are subject to the same vesting conditions and restrictions as the underlying shares with respect to which the dividends relate. The amounts shown in this column reflect our accrual of dividends with respect to unvested shares of restricted stock granted under the Stock Incentive Plan.
(d)
Life Insurance: We provide group term life insurance to each of our Named Executive Officers on the same terms as all other salaried employees. (e)
(d)
Executive Physical Exam: Each of our Named Executive Officers is eligible for a Company-paid executive physical examination every two years.year.
Grants of Plan-Based Awards in Fiscal 20202023 The following table shows all restricted shares and stock options granted to Named Executive Officers under the Stock Plan during fiscal 2020,2023, as well as the range of potential Bonuses that were achievable in fiscal 20202023 under our Performance Incentive Plan. | | | | | | | | | | | | | | Estimated Future Payouts Under
Non-Equity Incentive Plan
Awards(1) | | | | Estimated Future Payouts Under
Equity Incentive Plan
Awards(4) | | | | All Other
Stock
Awards:
Number of
Shares of
Stock or
Units
(#)(5) | | | | All Other
Option
Awards:
Number of
Securities
Underlying
Options
(#)(6) | | | | Exercise or
Base Price
of Option
Awards
($/Sh) | | | | Grant Date
Fair Value
of Stock
and Option
Awards
($)(7) | | | | Name | | | | Grant
Date | | | | Estimated Future Payouts Under
Non-Equity Incentive Plan
Awards(1) | | | | Estimated Future Payouts
Under Equity Incentive
Plan Awards(3) | | | | All Other
Stock
Awards:
Number
of
Shares of
Stock or
Units
(#)(4) | | | | All Other
Option
Awards:
Number
of
Securities
Underlying
Options
(#)(5) | | | | Exercise
or Base
Price of
Option
Awards
($/Sh) | | | | Grant Date
Fair Value
of Stock
Awards ($)(6) | | | | | | Name | | | | Grant
Date | | | | Threshold
($)(2) | | | | Target
($)(3) | | | | Maximum
($) | | | | Threshold
(#) | | | | Target
(#) | | | | Maximum
(#) | | | | Threshold
($) | | | | Target
($)(2) | | | | Maximum
($) | | | | Threshold
(#) | | | | Target
(#) | | | | Maximum
(#) | | | | | | David Overton | | | | | | n/a | | | | | | $ | 246,760 | | | | | | $ | 1,094,500 | | | | | | $ | 1,915,375 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | David Overton | | | | | | n/a | | | | | | $ | 205,219 | | | | | | $ | 1,094,500 | | | | | | $ | 1,504,938 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 2/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 336,900 | | | | | | $ | 40.16 | | | | | | $ | 2,245,964 | | | | | | | 2/16/23 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 69,280 | | | | | | | | | | | | | | | | | | | | $ | 2,800,298 | | | | | | | | 2/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 33,630 | | | | | | | 56,050 | | | | | | | 84,075 | | | | | | | | | | | | | | | | | | | | $ | 2,250,968 | | | | | | | 2/16/23 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 41,568 | | | | | | | 69,280 | | | | | | | 103,920 | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 2,800,298 | | | | | | | David M. Gordon | | | | | | n/a | | | | | | $ | 121,500 | | | | | | $ | 540,000 | | | | | | $ | 945,000 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | David M. Gordon | | | | | | n/a | | | | | | $ | 112,500 | | | | | | $ | 600,000 | | | | | | $ | 825,000 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 2/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 76,300 | | | | | | $ | 40.16 | | | | | | $ | 508,659 | | | | | | | 2/16/23 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 17,320 | | | | | | | | | | | | | | | | | | | | $ | 700,074 | | | | | | | | 2/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 7,638 | | | | | | | 12,730 | | | | | | | 19,095 | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 511,237 | | | | | | | 2/16/23 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 10,392 | | | | | | | 17,320 | | | | | | | 25,980 | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 700,074 | | | | | | | Matthew E. Clark | | | | | | n/a | | | | | | $ | 84,530 | | | | | | $ | 374,500 | | | | | | $ | 655,375 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Matthew E. Clark | | | | | | n/a | | | | | | $ | 83,672 | | | | | | $ | 446,250 | | | | | | $ | 613,594 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 2/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 68,900 | | | | | | $ | 40.16 | | | | | | $ | 459,326 | | | | | | | 2/16/23 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 39,720 | | | | | | $ | 40.42 | | | | | | $ | 625,013 | | | | | | | | 2/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 2,490 | | | | | | | | | | | | | | | | | | | | $ | 99,998 | | | | | | | 2/16/23 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 9,288 | | | | | | | 15,480 | | | | | | | 23,220 | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 625,702 | | | | | | | | 2/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 6,876 | | | | | | | 11,460 | | | | | | | 17,190 | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 460,234 | | | | | Scarlett May | | | | | | n/a | | | | | | $ | 69,164 | | | | | | $ | 368,875 | | | | | | $ | 507,203 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Scarlett May | | | | | | n/a | | | | | | $ | 74,460 | | | | | | $ | 331,500 | | | | | | $ | 580,125 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 2/16/23 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 7,740 | | | | | | | | | | | | | | | | | | | | $ | 312,851 | | | | | | | | 2/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 18,800 | | | | | | $ | 40.16 | | | | | | $ | 125,331 | | | | | | | 2/16/23 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 4,644 | | | | | | | 7,740 | | | | | | | 11,610 | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 312,851 | | | | | | | | 2/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 3,100 | | | | | | | | | | | | | | | | | | | | $ | 124,496 | | | | | Keith T. Carango | | | | | | n/a | | | | | | $ | 56,367 | | | | | | $ | 300,625 | | | | | | $ | 413,359 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 2/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 3,738 | | | | | | | 6,230 | | | | | | | 9,345 | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 250,197 | | | | | | | 2/16/23 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 6,380 | | | | | | | | | | | | | | | | | | | | $ | 257,880 | | | | | | | Keith T. Carango | | | | | | n/a | | | | | | $ | 60,590 | | | | | | $ | 269,750 | | | | | | $ | 472,063 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 2/16/23 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 3,828 | | | | | | | 6,380 | | | | | | | 9,570 | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 257,880 | | | | | | | | 2/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 30,000 | | | | | | $ | 40.16 | | | | | | $ | 199,997 | | | | | | | | | 2/18/2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | 3,060 | | | | | | | 5,100 | | | | | | | 7,650 | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 204,816 | | | | |
(1)
The threshold Bonus amounts assume achievement of 85%75% of the Company-wide adjusted EBITDAR target(and, with respect to Mr. Carango, additionally 75% of the bakery division adjusted Gross Contribution) objective and none of the strategic objectives. Target Bonus amounts assume achievement of 100% of the Company-wide adjusted EBITDAR target(and, with respect to Mr. Carango, additionally 100% of the bakery division adjusted Gross Contribution) objective and 100% of the strategic objectives. Maximum Bonus amounts assume achievement of 115% or more of the Company-wide adjusted EBITDAR target(and, with respect to Mr. Carango, additionally 115% of the bakery division adjusted Gross Contribution) objective and 100% of the strategic objectives.objective. For actual amounts paid under the Performance Incentive Plan for fiscal 2020,2023, see the column entitled “Non-Equity Incentive Plan Compensation”Compensation” in the “Summary Compensation Table”Table” included in this Proxy Statement. For more information on our annual performance bonus program under the Performance Incentive Plan for fiscal 2020,2023, see “Compensation“Compensation Discussion and Analysis-PrincipleAnalysis-Principal Elements of Compensation-Annual Cash Performance Incentive Compensation.Compensation.” (2)
Based on minimum achievement of the Company adjusted EBITDAR objective only. For information regarding this performance objective, see “Compensation Discussion and Analysis-Principle Elements of Compensation-Annual Cash Performance Incentive Compensation.”
(3)
Target awards are a percentage of base salary for fiscal 2020,2023, as follows: 110% for Mr. Overton; 80% for Mr. Gordon; 70%75% for Mr. Clark,Clark; and 65% for each of the other Named Executive Officers. (4)
(3)
The restricted stock awards are subject to achievement of a targeted cumulativetotal annual revenue growth, adjusted EPS, Sales Per Square Footaverage annual sales per productive square foot and adjusted Controllable Profitannual controllable profit performance conditions for fiscal years 2020, 2021,2023, 2024, and 2022,2025, measured once at the end of the 20222025 fiscal year. This award is eligible to be earned from 60%-150%60-150% of target and will be forfeited if we do not achieve our threshold goal. Any awards remaining outstanding after achievement (if any) of the total annual revenue growth, adjusted EPS, Sales Per Productive Square Footaverage annual sales per productive square foot and adjusted Controllable Profitannual controllable profit performance conditions isare determined to be achieved (if at all) shall be subject to service-based vesting at a rate of 60% of the award vesting from three calendar years fromon the third anniversary of the grant date and 20% of the award vesting on each of the fourth and fifth anniversaries of the grant date. (5)
(4)
The restricted stock vests in full60% on the third anniversary of the grant date, and 20% on each of the fourth and fifth anniversaries of the grant date subject to continued service with the Company.
(5)
The stock options vest 20% on each anniversary of the grant date subject to continued service with the Company and the exercise prices reflect the closing price per share of our common stock on the respective grant dates.
(7)
(6)
The grant date fair value was computed in accordance with the provisions of FASB ASC Topic 718, excluding the effect of estimated forfeitures. Amounts shown do not reflect compensation actually received or that may be realized in the future by the NEO.Named Executive Officer. See Note 1815 of the Notes to Consolidated Financial Statements in our Annual Report for information, including assumption used, regarding the valuation of equity awards.
Outstanding Equity Awards At Fiscal Year End The following table shows all outstanding stock options, restricted shares and restricted stock units held by the Named Executive Officers as of December 29, 2020,January 2, 2024, the last day of fiscal 2020.2023. The vesting schedules set forth in the footnotes are subject to continued service with the Company. | | | | | | | Option Awards | | | | Stock Awards | | | | | | | | | | | | | | | Option Awards | | | | Stock Awards | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | | PSU/PSA Awards | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | | PSU/PSA Awards | | | | | | Name | | | | Number of
Securities
Underlying
Unexercised
Options
(#)
Exercisable | | | | Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable(1) | | | | Option
Exercise
Price
($) | | | | Option
Expiration
Date | | | | Number of
Shares or
Units of
Stock That
Have Not
Vested
(#)(2) | | | | Market
Value of
Shares or
Units of
Stock That
have Not
Vested
($)(3) | | | | Number of
Unearned
Shares,
Units or
Other
Rights That
Have Not
Vested
(#)(2) | | | | Market or
Payout
Value of
Unearned
Shares,
Units or
Other
Rights That
Have Not
Vested
($)(3) | | | | Name | | | | Grant Date | | | | Number of
Securities
Underlying
Unexercised
Options
(#)
Exercisable | | | | Number of
Securities
Exercised
Options (#)
Unexercisable(1) | | | | Option
Exercise
Price
($) | | | | Option
Expiration
Date | | | | Number of
Shares or
Units of
Stock That
Have Not
Vested
(#)(2) | | | | Market
Value of
Shares or
Units of
Stock That
Have Not
Vested
($)(3) | | | | Number of
Unearned
Shares,
Units or
Other
Rights That
Have Not
Vested
(#)(2) | | | | Market or
Payout
Value of
Unearned
Shares,
Units or
Other
Rights That
Have Not
Vested
($)(3) | | | | | | David Overton(4) | | | | | | 175,000 | | | | | | | — | | | | | | | 35.62 | | | | | | | 3/7/21 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | David Overton | | | | | | 03/03/2016 | | | | | | | 82,000 | | | | | | | — | | | | | | | 50.26 | | | | | | | 03/03/2024 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 145,000 | | | | | | | — | | | | | | | 48.19 | | | | | | | 3/6/22 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 03/02/2017 | | | | | | | 73,500 | | | | | | | — | | | | | | | 61.59 | | | | | | | 03/02/2025 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 135,000 | | | | | | | — | | | | | | | 48.01 | | | | | | | 3/5/23 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/15/2018 | | | | | | | 179,300 | | | | | | | — | | | | | | | 47.06 | | | | | | | 02/15/2026 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 65,600 | | | | | | | 16,400(4a) | | | | | | | 50.26 | | | | | | | 3/3/24 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | 83,200 | | | | | | | 20,800 | | | | | | | 46.03 | | | | | | | 02/13/2027 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 44,100 | | | | | | | 29,400(4b) | | | | | | | 61.59 | | | | | | | 3/2/25 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/18/2020 | | | | | | | 202,140 | | | | | | | 134,760 | | | | | | | 40.16 | | | | | | | 02/18/2030 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 71,720 | | | | | | | 107,580(4c) | | | | | | | 47.06 | | | | | | | 2/15/26 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 9,480 | | | | | | $ | 325,733 | | | | | | | — | | | | | | | — | | | | | | | | 20,800 | | | | | | | 83,200(4d) | | | | | | | 46.03 | | | | | | | 2/13/27 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/18/2020 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 22,420 | | | | | | $ | 770,351 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | 336,900(4e) | | | | | | | 40.16 | | | | | | | 2/18/30 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 04/01/2021 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 43,150 | | | | | | $ | 1,482,634 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 5,000(9a) | | | | | | $ | 184,900 | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 4,740 | | | | | | $ | 162,866 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 23,700(9b) | | | | | | $ | 876,426 | | | | | | | 47,400(9b) | | | | | | $ | 1,752,852 | | | | | | | 02/10/2021 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 50,150 | | | | | | $ | 1,723,154 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 3,750(9c) | | | | | | $ | 138,675 | | | | | | | — | | | | | | | — | | | | | | | 02/10/2022 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 66,700 | | | | | | $ | 2,291,812 | | | | | | | 66,700 | | | | | | $ | 2,291,812 | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 56,050(9d) | | | | | | $ | 2,072,729 | | | | | | | 02/16/2023 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 69,280 | | | | | | $ | 2,380,461 | | | | | | | 69,280 | | | | | | $ | 2,380,461 | | | | | | | David M. Gordon(5) | | | | | | 25,000 | | | | | | | — | | | | | | | 35.62 | | | | | | | 3/7/21 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | David M. Gordon | | | | | | 03/03/2016 | | | | | | | 19,300 | | | | | | | — | | | | | | | 50.26 | | | | | | | 03/03/2024 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 25,000 | | | | | | | — | | | | | | | 48.19 | | | | | | | 3/6/22 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 03/02/2017 | | | | | | | 16,650 | | | | | | | — | | | | | | | 61.59 | | | | | | | 03/02/2025 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 25,500 | | | | | | | — | | | | | | | 48.01 | | | | | | | 3/5/23 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/15/2018 | | | | | | | 16,600 | | | | | | | — | | | | | | | 47.06 | | | | | | | 02/15/2026 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 15,440 | | | | | | | 3,860(5a) | | | | | | | 50.26 | | | | | | | 3/3/24 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | 18,720 | | | | | | | 4,680 | | | | | | | 46.03 | | | | | | | 02/13/2027 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 9,990 | | | | | | | 6,660(5b) | | | | | | | 61.59 | | | | | | | 3/2/25 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/18/2020 | | | | | | | 30,520 | | | | | | | 30,520 | | | | | | | 40.16 | | | | | | | 02/18/2030 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 16,600 | | | | | | | 24,900(5c) | | | | | | | 47.06 | | | | | | | 2/15/26 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 2,160 | | | | | | $ | 74,218 | | | | | | | — | | | | | | | — | | | | | | | | 4,680 | | | | | | | 18,720(5d) | | | | | | | 46.03 | | | | | | | 2/13/27 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/18/2020 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 5,092 | | | | | | $ | 174,961 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | 76,300(5e) | | | | | | | 40.16 | | | | | | | 2/18/30 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 04/01/2021 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 10,800 | | | | | | $ | 371,088 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 1,150(10a) | | | | | | $ | 42,527 | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 1,060 | | | | | | $ | 36,422 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 5,300(10b) | | | | | | $ | 195,994 | | | | | | | 10,800(10b) | | | | | | $ | 399,384 | | | | | | | 02/10/2021 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 12,550 | | | | | | $ | 431,218 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 863(10c) | | | | | | $ | 31,914 | | | | | | | | | | | | | | — | | | | | | | 02/10/2022 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 16,650 | | | | | | $ | 572,094 | | | | | | | 16,650 | | | | | | $ | 572,094 | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 12,730(10d) | | | | | | $ | 470,755 | | | | | | | 02/16/2023 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 17,320 | | | | | | $ | 595,115 | | | | | | | 17,320 | | | | | | $ | 595,115 | | | | | | | Matthew E. Clark(6) | | | | | | 5,200 | | | | | | | — | | | | | | | 35.62 | | | | | | | 3/7/21 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | Matthew E. Clark | | | | | | 03/03/2016 | | | | | | | 9,600 | | | | | | | — | | | | | | | 50.26 | | | | | | | 03/03/2024 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 11,500 | | | | | | | — | | | | | | | 48.19 | | | | | | | 3/6/22 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 03/02/2017 | | | | | | | 8,000 | | | | | | | — | | | | | | | 61.59 | | | | | | | 03/02/2025 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 10,000 | | | | | | | — | | | | | | | 48.01 | | | | | | | 3/5/23 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 06/07/2017 | | | | | | | 4,820 | | | | | | | — | | | | | | | 57.30 | | | | | | | 06/07/2025 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 7,680 | | | | | | | 1,920(6a) | | | | | | | 50.26 | | | | | | | 3/3/24 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/15/2018 | | | | | | | 38,000 | | | | | | | — | | | | | | | 47.06 | | | | | | | 02/15/2026 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 4,800 | | | | | | | 3,200(6b) | | | | | | | 61.59 | | | | | | | 3/2/25 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | 34,320 | | | | | | | 8,580 | | | | | | | 46.03 | | | | | | | 02/13/2027 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 2,892 | | | | | | | 1,928(6c) | | | | | | | 57.30 | | | | | | | 6/7/25 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/18/2020 | | | | | | | 41,340 | | | | | | | 27,560 | | | | | | | 40.16 | | | | | | | 02/18/2030 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 15,200 | | | | | | | 22,800(6d) | | | | | | | 47.06 | | | | | | | 2/15/26 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/16/2023 | | | | | | | — | | | | | | | 39,720 | | | | | | | 40.42 | | | | | | | 02/16/2033 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 8,580 | | | | | | | 34,320(6e) | | | | | | | 46.03 | | | | | | | 2/13/27 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 1,960 | | | | | | $ | 67,346 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | 68,900(6f) | | | | | | | 40.16 | | | | | | | 2/18/30 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/18/2020 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 4,584 | | | | | | $ | 157,506 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 1,060(11a) | | | | | | $ | 39,199 | | | | | | | — | | | | | | | — | | | | | | | 04/01/2021 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 9,800 | | | | | | $ | 336,728 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 1,780(11b) | | | | | | $ | 65,824 | | | | | | | — | | | | | | | — | | | | | | | 02/10/2021 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 11,400 | | | | | | $ | 391,704 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 9,800(11c) | | | | | | $ | 362,404 | | | | | | | 02/10/2022 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 15,100 | | | | | | $ | 518,836 | | | | | | | 15,100 | | | | | | $ | 518,836 | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 2,490(11d) | | | | | | $ | 92,080 | | | | | | | 11,460(11d) | | | | | | $ | 423,791 | | | | | | | 02/16/2023 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 15,480 | | | | | | $ | 531,893 | | | |
| | | | | | | Option Awards | | | | Stock Awards | | | | | | | | | | | | | | | Option Awards | | | | Stock Awards | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | | PSU/PSA Awards | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Restricted Stock | | | | PSU/PSA Awards | | | | | | Name | | | | Number of
Securities
Underlying
Unexercised
Options
(#)
Exercisable | | | | Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable(1) | | | | Option
Exercise
Price
($) | | | | Option
Expiration
Date | | | | Number of
Shares or
Units of
Stock That
Have Not
Vested
(#)(2) | | | | Market
Value of
Shares or
Units of
Stock That
have Not
Vested
($)(3) | | | | Number of
Unearned
Shares,
Units or
Other
Rights That
Have Not
Vested
(#)(2) | | | | Market or
Payout
Value of
Unearned
Shares,
Units or
Other
Rights That
Have Not
Vested
($)(3) | | | | Name | | | | Grant Date | | | | Number of
Securities
Underlying
Unexercised
Options
(#)
Exercisable | | | | Number of
Securities
Exercised
Options (#)
Unexercisable(1) | | | | Option
Exercise
Price
($) | | | | Option
Expiration
Date | | | | Number of
Shares or
Units of
Stock That
Have Not
Vested
(#)(2) | | | | Market
Value of
Shares or
Units of
Stock That
Have Not
Vested
($)(3) | | | | Number of
Unearned
Shares,
Units or
Other
Rights That
Have Not
Vested
(#)(2) | | | | Market or
Payout
Value of
Unearned
Shares,
Units or
Other
Rights That
Have Not
Vested
($)(3) | | | | | | Scarlett May(7) | | | | | | 3,680 | | | | | | | 5,520(7a) | | | | | | | 52.14 | | | | | | | 5/30/26 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | Scarlett May | | | | | | 05/30/2018 | | | | | | | 9,200 | | | | | | | — | | | | | | | 52.14 | | | | | | | 05/30/2026 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 2,320 | | | | | | | 9,280(7b) | | | | | | | 46.03 | | | | | | | 2/13/27 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | 9,280 | | | | | | | 2,320 | | | | | | | 46.03 | | | | | | | 02/13/2027 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | 18,800(7c) | | | | | | | 40.16 | | | | | | | 2/18/30 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/18/2020 | | | | | | | 11,280 | | | | | | | 7,520 | | | | | | | 40.16 | | | | | | | 02/18/2030 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 2,300(12a) | | | | | | $ | 85,054 | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 1,060 | | | | | | $ | 36,422 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 2,600(12b) | | | | | | $ | 96,148 | | | | | | | 5,300(12b) | | | | | | $ | 195,994 | | | | | | | 02/18/2020 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 2,492 | | | | | | $ | 85,625 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 3,100(12c) | | | | | | $ | 114,638 | | | | | | | 6,230(12c) | | | | | | $ | 230,385 | | | | | | | 04/01/2021 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 4,850 | | | | | | $ | 166,646 | | | | | | | — | | | | | | | — | | | | | | | Keith T. Carango(8) | | | | | | 2,000 | | | | | | | — | | | | | | | 35.62 | | | | | | | 3/7/21 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 520 | | | | | | $ | 17,867 | | | | | | | — | | | | | | | — | | | | | | | | 3,200 | | | | | | | — | | | | | | | 48.19 | | | | | | | 3/6/22 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/18/2020 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 1,240 | | | | | | $ | 42,606 | | | | | | | — | | | | | | | — | | | | | | | | 4,200 | | | | | | | — | | | | | | | 48.01 | | | | | | | 3/5/23 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/10/2021 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 5,650 | | | | | | $ | 194,134 | | | | | | | — | | | | | | | — | | | | | | | | 3,780 | | | | | | | 1,260(8a) | | | | | | | 50.26 | | | | | | | 3/3/24 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/10/2022 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 7,700 | | | | | | $ | 264,572 | | | | | | | 7,700 | | | | | | $ | 264,572 | | | | | | | | 3,120 | | | | | | | 2,080(8b) | | | | | | | 61.59 | | | | | | | 3/2/25 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 02/16/2023 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 7,740 | | | | | | $ | 265,946 | | | | | | | 7,740 | | | | | | $ | 265,946 | | | | | | | | 3,320 | | | | | | | 4,980(8c) | | | | | | | 47.06 | | | | | | | 2/15/26 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | Keith T. Carango | | | | | | 03/03/2016 | | | | | | | 5,040 | | | | | | | — | | | | | | | 50.26 | | | | | | | 03/03/2024 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 1,200 | | | | | | | 1,800(8d) | | | | | | | 51.74 | | | | | | | 4/5/26 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 03/02/2017 | | | | | | | 5,200 | | | | | | | — | | | | | | | 61.59 | | | | | | | 03/02/2025 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | 1,840 | | | | | | | 7,360(8e) | | | | | | | 46.03 | | | | | | | 2/13/27 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 02/15/2018 | | | | | | | 8,300 | | | | | | | — | | | | | | | 47.06 | | | | | | | 02/15/2026 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | 30,000(8f) | | | | | | | 40.16 | | | | | | | 2/18/30 | | | | | | | | | | | | | | | | | | | | | — | | | | | | | — | | | | | | | 04/05/2018 | | | | | | | 3,000 | | | | | | | — | | | | | | | 51.74 | | | | | | | 04/05/2026 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 700(13a) | | | | | | $ | 25,886 | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | 7,360 | | | | | | | 1,840 | | | | | | | 46.03 | | | | | | | 02/13/2027 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 1,180(13b) | | | | | | $ | 43,636 | | | | | | | — | | | | | | | — | | | | | | | 02/18/2020 | | | | | | | 18,000 | | | | | | | 12,000 | | | | | | | 40.16 | | | | | | | 02/18/2030 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 4,000(13c) | | | | | | $ | 147,920 | | | | | | | — | | | | | | | — | | | | | | | 02/13/2019 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 860 | | | | | | $ | 29,550 | | | | | | | — | | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 1,300(13d) | | | | | | $ | 48,074 | | | | | | | — | | | | | | | — | | | | | | | 02/18/2020 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 2,040 | | | | | | $ | 70,094 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 2,100(13e) | | | | | | $ | 77,658 | | | | | | | 4,300(13e) | | | | | | $ | 159,014 | | | | | | | 04/01/2021 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 3,950 | | | | | | $ | 135,722 | | | | | | | — | | | | | | | — | | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 5,100(13f) | | | | | | $ | 188,598 | | | | | | | 02/13/2019 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 420 | | | | | | $ | 14,431 | | | | | | | — | | | | | | | — | | | | | | | | | | 02/10/2021 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 4,600 | | | | | | $ | 158,056 | | | | | | | — | | | | | | | — | | | | | | | | 02/10/2022 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 6,050 | | | | | | $ | 207,878 | | | | | | | 6,050 | | | | | | $ | 207,878 | | | | | | | | 02/16/2023 | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | 6,380 | | | | | | $ | 219,217 | | | | | | | 6,380 | | | | | | $ | 219,217 | | | |
(1)
All options listed vest at a rate of 20% per year.year on each annual anniversary of the grant date. (2)
Unless otherwise noted, restricted shares and PSU/PSA awards listed vest 60% on the third anniversary of the date of grant, subject to continued service and in the case of the PSAs, attainment of three equally weighted performance goals (total annual revenue growth; adjusted average annual sales per productive square foot; and adjusted annual controllable profit goals), and 20% on each of the fourth and fifth anniversaries of the date of grant. Performance for the 2018 PSU/PSA awards grantedgrant, subject to each of Mr. Overton, Mr. Gordon, Mr. Clark and Ms. May was below threshold and therefore the applicable PSU/PSA awards were forfeited and are not included in the table.continued service. (3)
The market value of outstanding stock awards is based on a per share (or unit) value of $36.98,$34.36, the closing market price of our common shares on December 29, 2020,January 2, 2024, the last day of fiscal 2020.2023. Per SEC rules, amounts shown reflect the target number of performance vesting awards that may be earned based on the results of the previous year’s performance at threshold levels. (4)
The vesting dates of options held by Mr. Overton that were not exercisable as of our fiscal 2020 year-end are as follows: (a) 16,400 options vested on 3/3/21; (b) 14,700 options vested on 3/2/21 and 14,700 options will vest on 3/2/22; (c) 35,860 options vested on 2/15/21 and 35,860 options will vest on each of 2/15/22 and 2/15/23; (d) 20,800 options vested on 2/13/21 and 20,800 options will vest on each of 2/13/22, 2/13/23 and 2/13/24; (e) 67,380 options vested on 2/18/21 and 67,380 options will vest on each of 2/18/22, 2/18/23, 2/18/24 and 2/18/25.
(5)
The vesting dates of options held by Mr. Gordon that were not exercisable as of our fiscal 2020 year-end are as follows: (a) 3,860 options vested on 3/3/21; (b) 3,330 options vested on 3/2/21 and 3,330 options will vest on 3/2/22; (c) 8,300 options vested on 2/15/21 and 8,300 options will vest on each of 2/15/22 and 2/15/23; (d) 4,680 vested on 2/13/21 and 4,680 options will vest on each of 2/13/22, 2/13/23 and 2/13/24; (e) 15,260 options vested on 2/18/21 and 15,260 options will vest on each of 2/18/22, 2/18/23, 2/18/24 and 2/18/25.
(6)
The vesting dates of options held by Mr. Clark that were not exercisable as of our fiscal 2020 year-end are as follows: (a) 1,920 options vested on 3/3/21; (b) 1,600 options vested on 3/2/21 and 1,600 options will vest on 3/2/22; (c) 964 options will vest on each of 7/7/21 and 7/7/22; (d) 7,600 options vested on 2/15/21 and 7,600 options will vest on each of 2/15/22 and 2/15/23; (d) 8,580 options vested on 2/13/21 and 8,580 options will vest on each of 2/13/22, 2/13/23 and 2/13/24; (e) 13,780 options vested on 2/18/21 and 13,780 options will vest on each of 2/18/22, 2/18/23, 2/18/24 and 2/18/25.
(7)
The vesting dates of options held by Ms. May that were not exercisable as of our fiscal 2020 year-end are as follows: (a) 1,840 options will vest on each of 5/14/21, 5/14/22 and 5/14/23; (b) 2,320 options vested on 2/13/21 and 2,320 options will vest on each of 2/13/22, 2/13/23 and 2/13/24; (c) 3,760 options vested on 2/18/21 and 3,760 options will vest on each of 2/18/22, 2/18/23, 2/18/24 and 2/18/25.
(8)
The vesting dates of options held by Mr. Carango that were not exercisable as of our fiscal 2020 year-end are as follows: (a) 1,260 options vested on 3/3/21; (b) 1,040 options vested on 3/2/21 and 1,040 options will vest on 3/2/22; (c) 1,660 options vested on 2/15/21 and 1,660 options will vest on each of 2/15/22 and 2/15/23; (d) 600 options will vest on each of 4/5/21, 4/5/22 and 4/5/23; (e) 1,840 options vested on 2/13/21 and 1,840 options will vest on each of 2/13/22, 2/13/23 and 2/13/24; (f) 6,000 options vested on 2/18/21 and 6,000 options will vest on each of 2/18/22, 2/18/23, 2/18/24 and 2/18/25.
(9)
The grant dates of restricted shares and PSU/PSA awards held by Mr. Overton that were not vested as of our fiscal 2020 year-end are as follows: (a) 3/03/16; (b) 2/13/19; (c) 3/3/16; (d) 2/18/20.
(10)
The grant dates of restricted shares and PSU/PSA awards held by Mr. Gordon that were not vested as of our fiscal 2020 year-end are as follows: (a) 3/3/16; (b) 2/13/19; (c) 3/3/16; (d) 2/18/20.
(11)
The grant dates of restricted shares and PSU/PSA awards held by Mr. Clark that were not vested as of our fiscal 2020 year-end are as follows: (a) 3/3/16; (b) 3/2/17; (c) 2/13/19; (d) 2/18/20. The restricted shares granted on 2/18/20 vest in full on the third anniversary of the grant date, subject to Mr. Clark’s continued employment through the vesting date.
(12)
The grant dates of restricted shares and PSU/PSA awards held by Ms. May that were not vested as of our fiscal 2020 year-end are as follows: (a) 5/30/18; (b) 2/13/19; (c) 2/18/20.
(13)
The grant dates of restricted shares and PSU/PSA awards held by Mr. Carango that were not vested as of our fiscal 2020 year-end are as follows: (a) 3/3/16; (b) 3/2/17; (c) 2/15/18; (d) 4/15/18; (e) 2/13/19; (f) 2/18/20.
Option Exercises and Stock Vested The following table shows, for fiscal 2020,2023, all stock options exercised by Named Executive Officers and shares of their restricted stock that vested: | | | | | | | Nonqualified Stock
Option Awards | | | | Restricted
Stock Awards | | | | | | | | Non-qualified Stock
Option Awards | | | | Restricted
Stock Awards | | | | | | Name | | | | Number of
Shares
Acquired on
Exercise
(#) | | | | Value
Realized
Upon Exercise
($)(1) | | | | Number of
Shares
Acquired on
Vesting
(#) | | | | Value
Realized
on Vesting
($)(2) | | | | Name | | | | Number of
Shares
Acquired on
Exercise
(#)(1) | | | | Value
Realized
Upon Exercise
($)(1) | | | | Number of
Shares
Acquired on
Vesting
(#) | | | | Value
Realized
on Vesting
($)(2) | | | | | | David Overton | | | | | | — | | | | | | | — | | | | | | | 15,750 | | | | | | $ | 523,828 | | | | | David Overton | | | | | | — | | | | | | | — | | | | | | | 47,850 | | | | | | $ | 1,896,886 | | | | | | | David M. Gordon | | | | | | — | | | | | | | — | | | | | | | 3,553 | | | | | | $ | 118,291 | | | | | David M. Gordon | | | | | | — | | | | | | | — | | | | | | | 10,858 | | | | | | $ | 430,447 | | | | | | | Matthew E. Clark | | | | | | — | | | | | | | — | | | | | | | 4,830 | | | | | | $ | 167,628 | | | | | Matthew E. Clark | | | | | | — | | | | | | | — | | | | | | | 11,326 | | | | | | $ | 451,154 | | | | | | | Scarlett May | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | Scarlett May | | | | | | — | | | | | | | — | | | | | | | 7,638 | | | | | | $ | 299,747 | | | | | | | Keith T. Carango | | | | | | — | | | | | | | — | | | | | | | 3,170 | | | | | | $ | 110,110 | | | | | Keith T. Carango | | | | | | — | | | | | | | — | | | | | | | 5,400 | | | | | | $ | 211,798 | | | |
(1)
(1)
No stock options were exercised in 2023. The value realized upon exercise iswould be equal to the difference between the market price of our common stock at the time of exercise and the exercise price of the options. (2)
The value realized upon vesting is equal to the fair market value of the shares on the vesting date. Pension Benefits The following table shows the lump sum present value of the accumulated pension benefits of Mr. Overton, the only named executive officer entitled to pension benefits, as of December 29, 2020,January 2, 2024, the last day of fiscal 2020.2023. | | | Name | | | | Plan Name | | | | Number of
years
of
Credited
Service (#) | | | | Present
Value of
Accumulated
Benefit ($) | | | | Payments
During Last
Fiscal Year ($) | | | | | | David Overton | | | | Founder’s Retirement Benefit(1) | | | | | | — | | | | | | $ | 6,115,0005,055,000(2) | | | | | | | — | | | |
(1)
Pursuant to Mr. Overton’s employment agreement,Employment Agreement, Mr. Overton is entitled to a “Founder’s Retirement Benefit” pursuant to which Mr. Overton (or his beneficiary or estate, if he is deceased) is entitled to fixed annual payments of $650,000 for a period of ten years following his separation from service for any reason, payable in equal monthly installments. Our obligation with respect to the Founder’s Retirement Benefit is unfunded and unsecured, and is payable from our general, unrestricted assets. For additional information concerning Mr. Overton’s employment agreement,Employment Agreement, see the sections in this Proxy Statement entitled “Retirement Plans” and “Compensation of Named Executive Officers-Employment Agreements.” (2)
The present value of Mr. Overton’s accumulated benefit was calculated assuming an initial annual payment in October of 2021,2024, the first payment date after the earliest possible date on which Mr. Overton could retire and obtain full benefits assuming a separation from service on the last day of the term of his 2023-2024 employment agreement and a discount rate of 0.94%3.95% based on the 10 Year Treasury Yield Rate in effect as of December 29, 2020.January 2, 2024. NonqualifiedNon-qualified Deferred Compensation
We adopted The Cheesecake Factory Incorporatedthe Executive Savings Plan (the “Executive Savings Plan”) in order to provide a tax-deferred savings vehicle to help us attract, retain and motivate executives with the essential qualifications to manage our Company successfully. The Executive Savings Plan is a nonqualifiednon-qualified deferred compensation plan for our Independent Directors and for our highly compensated executives (as defined in the Executive Savings Plan) who are otherwise ineligible to participate in our qualified defined contribution savings plan under Section 401(k) of the Code. The Executive Savings Plan allows our employee-participants to defer the receipt of up to 50% of their base
salaries and up to 100% of their Bonus and beginning in 2020, allows our non-employee directors to defer up to 100% of their director fees and stock units.
Under the Executive Savings Plan, we currently provide a matching contribution at a rate of 25% of the first 4% of salary and/or Bonus deferred under the plan. We do not provide a match for deferrals by non-employee directors. Our matching contributions vest 25% per year after the staff member’s second year of participation in the Executive Savings Plan, such that staff members with five years of service with us would be 100% vested in our matching contributions. All of our Named Executive Officers other than Scarlett May, who was hired by the Company and appointed Executive Vice President, General Counsel and Secretary on May 14, 2018, are currently 100% vested in our matching contributions. Staff member deferrals and our matching contribution, if any, are deposited into a “rabbi” trust established by us, and the funds are generally invested in individual variable life insurance contracts owned by us, which are specifically designed to informally fund savings plans of this nature. Earnings accumulate on account balances based on individual investment choices. Upon a participant’s termination from employment, he or she will receive a distribution of his or her account balance, including earnings and vested Company contributions, in accordance with his or her distribution election and the terms of the Executive Savings Plan. For any plan year, a participant may elect, in accordance with the terms of the Executive Savings Plan, to have a portion of his or her account paid on a scheduled in-service distribution date; provided, such a distribution may not occur earlier than the second plan year after the plan year to which such an election applies. The following table shows the compensation (including Bonus) earned for fiscal 20202023 that was deferred into the Executive Savings Plan by each Named Executive Officer during fiscal 2020:2023: | | | Name | | | | Executive
Contributions
in Fiscal 2020
$(1) | | | | Company
Contributions
in Fiscal 2020
$(2) | | | | Aggregate
Earnings/(Losses)
in Fiscal 2020
$ | | | | Aggregate
Withdrawals or
Distributions
in Fiscal 2020
$ | | | | Aggregate
Balance at
December 31,
2020
$(3) | | | | | | David Overton | | | | | | — | | | | | | | — | | | | | | | 39,911 | | | | | | | — | | | | | | | 289,628 | | | | | | | David M. Gordon | | | | | | 45,527 | | | | | | | 6,192 | | | | | | | 124,531 | | | | | | | — | | | | | | | 1,362,492 | | | | | | | Matthew E. Clark | | | | | | — | | | | | | | — | | | | | | | 7 | | | | | | | — | | | | | | | 2,671 | | | | | | | Scarlett May | | | | | | 19,414 | | | | | | | 4,657 | | | | | | | 6,516 | | | | | | | 10,592 | | | | | | | 57,278 | | | | | | | Keith T. Carango | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | |
NON-QUALIFIED DEFERRED COMPENSATION | | | Name | | | | Executive
Contributions
in Fiscal 2023
$(1) | | | | Company
Contributions
in Fiscal 2023
$(2) | | | | Aggregate
Earnings/(Losses)
in Fiscal 2023
$ | | | | Aggregate
Withdrawals or
Distributions
in Fiscal 2023
$ | | | | Aggregate
Balance at
December 31,
2023
$(3) | | | | | | David Overton | | | | | | — | | | | | | | — | | | | | | $ | 63,770 | | | | | | | — | | | | | | $ | 356,716 | | | | | | | David M. Gordon | | | | | $ | 5,538 | | | | | | $ | 554 | | | | | | $ | 203,760 | | | | | | | — | | | | | | $ | 1,673,737 | | | | | | | Matthew E. Clark | | | | | | — | | | | | | | — | | | | | | $ | 85 | | | | | | | — | | | | | | $ | 2,792 | | | | | | | Scarlett May | | | | | $ | 20,833 | | | | | | $ | 5,208 | | | | | | $ | 2,465 | | | | | | | — | | | | | | $ | 37,804 | | | | | | | Keith T. Carango | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | |
(1)
These amounts are reported as compensation earned by the Named Executive Officers in the “Summary Compensation Table.” The “Executive Contributions” total is included in the “Salary” or “Non-Equity Incentive Plan Compensation” column of the “Summary Compensation Table,” depending on the source of the deferral for each executive. (2)
These amounts are reported as “other” compensation“other compensation” earned by the Named Executive Officers. Please see footnote 34 to the “Summary Compensation Table.” (3)
For Mr. Overton, $3,043 of the aggregate balance was reported in the “Summary Compensation Table” in previous years. For Mr. Gordon, $79,869$100,104 of the aggregate balance was reported in the “Summary Compensation Table” in previous years. For Mr. Clark, $4,962 of the aggregate balance was reported in the “Summary Compensation Table” in previous years. For Ms. May, $7,252$12,105 of the aggregate balance was reported in the “Summary Compensation Table” in previous years, and for Mr. Carango, none of the aggregate balance was reported in the “Summary Compensation Table” in previous years.
Pay Ratio
We believe that executive pay should align with the value and contributions that our executives bring to the business, while ensuring that we are paying competitively across our different markets and job levels.
As required by Section 953(b) of the Dodd Frank Wall Street Reform and Consumer Protection Act, and Regulation 402(u) of Regulation S-K, we are providing the following information about the relationship of the annual total compensation of our employees and the total annual compensation of Mr. David Overton, our Chief Executive Officer. The pay ratio included in this information is a reasonable estimate calculated in a manner consistent with Item 402(u) of Regulation S-K.
For fiscal 2020:
•
the median of the annual total compensation of all employees of our Company (other than our Chief Executive Officer) was $21,656 and represents the total compensation of a part-time staff member who worked 1,319 hours (approximately 25.4 hours per week); and
•
the annual total compensation of our Chief Executive Officer, as reported in the “Summary Compensation Table,” was $5,914,037.
Based on this information, for fiscal 2020, our Chief Executive Officer’s annual total compensation was 273 times that of the median of the annual compensation of all employees.
To identify the median of the annual total compensation of all employees, as well as to determine the annual total compensation of our median employee and our Chief Executive Officer, we took the following steps:
1.
We determined that as of December 31, 2020, our employee population consisted of 40,568 individuals. This population consisted of both full-time and part-time employees. As part of our methodology, and in reliance with the “de minimis” exemption under Item 402(u) of Regulation S-K, we excluded all employees in Canada totaling 290 or approximately 0.7% of our total workforce.
2.
To identify the median employee from our employee population, we compared the amount of total wages (including reported tips) of our employees as reflected in our payroll records as reported to the Internal Revenue Service on Form W-2 for 2020. Given our workforce with similar high turnover rates inherent in the restaurant industry, our methodology included annualizing the compensation for permanent employees who did not work a full calendar year to properly reflect their compensation levels. However, even with this annualizing, many employees had very low hours and had not reached a stabilized work schedule. We did not perform any full-time equivalency adjustments. We believe the use of total wages for all employees is a consistently applied compensation measure.
3.
We identified our median employee by using this compensation measure, which we consistently applied to all our employees included in the calculation. We did not make any cost-of-living adjustments in identifying the median employee. Again, the median of the annual total compensation of all employees of our company (other than our Chief Executive Officer) represents a part-time staff member who worked 1,319 hours (approximately 25.4 hours per week) and was $21,656.
4.
Once we identified our median employee, we combined all of the elements of such employee’s compensation for 2020 in accordance with the requirements of Item 402(c)(2)(x) of Regulation S-K, resulting in annual total compensation of $21,656.
5.
With respect to the annual total compensation of our Chief Executive Officer, we used the amount reported in the “Total” column in the “Summary Compensation Table,” above.
Employment Agreements Our employment agreements with our Named Executive Officers are summarized below. David Overton. We entered into an employment agreement with David Overton effective April 1, 2017, as amended February 15, 2018. On April 5, 2023, we entered into an amended and restated employment agreement with David Overton, effective immediately upon entry (“Mr. Overton’s Employment Agreement”).
Mr. Overton’s employment agreement, as amended, hadEmployment Agreement has a one-year term, which initially expiredexpires on April 1, 2019,2024 but provides for automatic additional one-year terms on each anniversary date unless either of the parties gives notice of intent not to extend at least 90 days prior to the then current expiration date. Pursuant to his employment agreement,Mr. Overton’s Employment Agreement, Mr. Overton is entitled to an annual base salary of $995,000, subject to increase at the discretion of the Compensation Committee. Mr. Overton is eligible to participate in our annual bonus plan for executive officers, to receive equity grants and other long-term incentive compensation at the
discretion of the Compensation Committee, and to participate equitably with other executive officers in all of our other health and welfare, retirement, fringe and other benefit plans, including reimbursement of his reasonable business expenses. If Mr. Overton’s employment with us is terminated by us for any reason other than forwithout Cause death or Permanent Disability (as defined in Mr. Overton’s employment agreement)Employment Agreement), or if Mr. Overton voluntarily resigns his employment with us due to a Constructive Termination, then provided he timely executes a general release of claims and continues to comply with restrictive covenants, we will provide him with certain payments and/or benefits described under “Potential Payments upon Termination or Change in Control” below. For the purposes of Mr. Overton’s employment agreement:Employment Agreement: •
“Cause” generally means a finding by the majority of the Board that Mr. Overton engaged in any of the following: (i) a willful failure to substantially perform his duties with the Company (other than any such failure resulting from his incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to him by the Board; (ii) willful misconduct that is demonstrably and materially injurious to the Company; or (iii) the commission of such acts of dishonesty, fraud, misrepresentation or other acts of moral turpitude as would prevent the effective performance of his duties. •
“Constructive Termination” generally means (without Mr. Overton’s consent): (i) a relocation of more than 50 miles of Mr. Overton’s principal business office; (ii) a material diminution in Mr. Overton’s title, authority, duties or responsibilities; (iii) a decrease in Mr. Overton’s annual base salary or a material diminution in and/or discontinuation of any benefit plan or program or level of participation, which decrease or discontinuation does not apply to all executive officers of the Company, or a failure to include Mr. Overton in any new benefit plan or program offered to all other executive officers of the Company; or (iv) upon a Change in Control (as defined in his employment agreement), if any of Mr. Overton’s equity awards are not assumed by the surviving entity and also not accelerated. Should Mr. Overton be subject to any excise tax in connection with the “excess parachute payment” provisions of Section 280G of the Code, Mr. Overton would not be entitled to receive an additional “gross-up” payment from us. Instead, Mr. Overton’s employment agreement contains a “best net” provision; any punitive parachute payments will be reduced to an amount such that there would be no excise taxes if such reduction would cause Mr. Overton to receive a greater amount as measured on an after-tax basis. In recognition of Mr. Overton’s unique contributions as our founder, Mr. Overton’s employment agreementEmployment Agreement provides for a “Founder’s Retirement Benefit,” pursuant to which he will receive, during his lifetime or in the event of his death to his designated beneficiary, an annual payment in the amount of $650,000 for ten years, payable in equal monthly installments, as further described in his employment agreement.Mr. Overton’s Employment Agreement. Following Mr. Overton’s separation from service with us, he is entitled to retain the title of “Founder” of the Company for the remainder of his lifetime. His other lifetime benefits are retaining the title of “Chairman Emeritus” and dining privileges at our restaurants, in each case provided he wasn’t terminated for Cause (as defined in his employment agreement). For ten years following separation (or until subsequently employed if earlier), Mr. Overton will have an office and secretary, provided he is not in competition with us, and further provided that he promotes our brand, business and reputation. David M. Gordon, Matthew E. Clark, Scarlett May and Keith T. Carango. We maintain employment agreements with our other Named Executive Officers which are all substantially similar to one another (the “NEO Employment Agreements”). Each of the NEO Employment Agreements has an initial term of approximately one year and will extend automatically for additional one-year terms on each anniversary date unless either of the parties gives notice
of intent not to extend at least 90 days prior to the then current expiration date. The Compensation Committee determines any future adjustments to base salary of each executive, but none of such executives’ annual salary may be decreased without his or her consent unless the annual salaries of all other executive officers are proportionately decreased. In addition, the NEO Employment Agreements respectively provide for certain benefits upon termination of the executive’s employment under certain circumstances, including death or Permanent Disability (as defined in the NEO Employment Agreements), a termination by us other than a Termination With Cause, or a Constructive Termination, including a Constructive Termination within
18 months of a change in control. See “Potential Payments upon Termination or Change in Control” below for more information on the potential payments. For the purposes of the NEO Employment Agreements: •
“Constructive Termination” generally means (without the applicable executive’s consent): (i) a relocation of more than 45 miles of the executive’s principal business office; (ii) a material diminution in the executive’s title, authority, duties or responsibilities; (iii) a decrease in the executive’s annual base salary or a material diminution in and/or discontinuation of any benefit plan or program, or level of participation which decrease or discontinuation does not apply to all executive officers of the Company, or a failure to include the executive in any new benefit plan or program offered to all other executive officers of the Company; or (iv) upon a Change in Control (as defined in the NEO Employment Agreements), if any of the executive’s equity awards are not assumed by the surviving entity and also not accelerated. •
“Termination With Cause” generally means a termination by the Company upon the executive’s: (i) failure to substantially perform his or her duties with the Company (other than any such failure resulting from the executive’s incapacity due to physical or mental illness), after delivery of a written notice identifying such failure from the Company, which, if such failure is not material, continues for 30 days following the delivery of such notice; (ii) incompetence or gross negligence in the discharge of his or her duties; (iii) commission of any dishonesty, act of theft, embezzlement, or fraud; (iv) breach of confidentiality in violation of law or of the Company’s policies and procedures; (v) unauthorized disclosure or use of inside or proprietary information in violation of law or of the Company’s policies and procedures; (vi) willful or material violation of any law, rule or regulation of any governing authority; (vii) willful or material violation of the Company’s policies and procedures; (viii) intentional conduct that is injurious to the reputation, business or assets of the Company; or (ix) except as expressly permitted by the NEO Employment Agreements, solicitation of the Company’s consultants or employees to work for any business other than the Company or its affiliates during the term of the applicable NEO Employment Agreement without the knowledge and consent of the Chief Executive OfficerCEO of the Company. The NEO Employment Agreements each provide that the executive is eligible to participate with other executive officers in any of our bonus, equity, health and welfare, and fringe benefit plans, to the extent eligible by virtue of his or her position, tenure and salary. The NEO Employment Agreements also provide each executive with the option to participate in our leased car program or, in lieu thereof, to receive a car allowance. In addition, in connection with her entry into her NEO Employment Agreement, we agreed to reimburse Ms. May for certain relocation expenses and provided her with a one-time reimbursement in the amount of $211,000 as compensation for losses incurred in connection with her relocation subject to forfeiture in the event Ms. May voluntarily resigns her employment, other than due to a Constructive Termination, prior to May 13, 2021. The NEO Employment Agreements contain the same Code Section 280G “best net” provision as described above for Mr. Overton. In addition, the NEO Employment Agreements provide that if an executive is subject to additional taxes imposed by Code Section 409A which relate solely to the timing of payment for the severance benefits under the executive’s prior employment agreement, then within 60 days after the determination that such Code Section 409A taxes are due, we will pay him or her a cash payment so that he or she will be in the same position on an after-tax basis that he or she would have been in if no Code Section 409A taxes and related interest and/or penalties had been imposed. Mr. Overton’s employment agreement and the NEO Employment Agreements (i) contain confidentiality, noncompete and nonsolicitnon solicit restrictive covenants; and (ii) expressly authorize each executive to report to appropriate authorities outside of the Company possible violations of law or regulations and to make other disclosures that are protected under so called “whistleblower” provisions, notwithstanding any confidentiality policies to the contrary.
Potential Payments upon Termination or Change in Control Acceleration of Equity Awards in Connection with a Change in Control. Under the Stock Plan, outstanding equity awards that are not assumed or continued upon a Change in Control (as defined in the Stock Plan) by the acquirer will accelerate, with time-based awards vesting in full and performance-based awards vesting at the greater of pro-rated target or actual performance as of the date of the Change in Control. In addition, pursuant to the Stock Plan, except as otherwise set forth in the award agreements, outstanding equity awards that are assumed or continued by the acquirer will vest in full if the Named Executive Officer is terminated without Cause or for Good Reason (each as defined in the Stock Plan) within 12 months following such Change in Control. Pursuant to the award agreements evidencing stock options and restricted stock granted to the Named Executive Officers under the Stock Plan, outstanding equity awards that are assumed or continued by the acquirer will (i) with respect to awards granted in 2020, if the Named Executive Officer experiences a Constructive Termination (as defined in the applicable Named Executive Officer’s employment agreement) or a termination for Good Reason within 18 months following such Change in Control, vest upon such termination with respect to those shares that are scheduled to vest within 24 months after the termination, and/or (ii) with respect to equity awards granted in 2021, 2022 and 2023, if the Named Executive Officer is terminated without Cause, due to a Constructive Termination or for Good Reason within 18 months following such Change in Control, vest in full, in each case, provided that if vesting is subject to a Company performance condition, the accelerated vesting only occurs if, as and when such condition is achieved. Pursuant to the award agreements evidencing stock options and restricted stock granted to the Named Executive Officers under the Stock Plan, in the event that an applicable Named Executive Officer experiences a termination due to death or Disability (as defined in the Stock Plan) then: (i) with respect to awards granted in or prior to 2020, any awards that were scheduled to vest within 24 months after the termination will vest upon termination, and/or (ii) with respect to equity awards granted in 2021, 2022 and 2023, outstanding equity awards will vest in full, provided that if vesting is subject to a Company performance condition, the accelerated vesting only occurs if, as and when such condition is achieved. Chief Executive Officer. Pursuant to Mr. Overton’s employment agreement,Employment Agreement, if Mr. Overton’s employment were terminated for any reason (other than forby us without Cause death or Permanent Disability) or if he voluntarily resigns from his employment due to a Constructive Termination, then provided he timely executes a general release of claims and continues to comply with restrictive covenants, he or his estate would be entitled to receive continued payment of his then current annual base salary (on regular payroll dates) throughfor a period of twenty-four (24) months from the enddate of the current annual termtermination (the “Continuation Period”) and a pro-rata bonus for the fiscal year in which the termination occurred based on length of service during such fiscal year prior to the termination date and actual performance. Through the end of the current annual term of his employment agreementContinuation Period (or until coverage is provided by a subsequent employer, if applicable), Mr. Overton would be entitled to a Company car at the comparable level provided to him prior to his termination and continuation of health and welfare benefits on behalf of Mr. Overton and his dependents. In addition, all installments of outstanding equity awards that are scheduled to vest within 24 months of Mr. Overton’s termination date would vest and, as applicable, become exercisable and vest as of such termination date; provided, however, any performance-based awards will be subject to achievement of their underlying performance goals. In the event of Mr. Overton’s termination for any reason other than by the Company for Cause, then generally he will have the right to exercise any vested equity awards for a period of 36 months from the later of (i) the date of his Separation from Service (as defined in his employment agreement) or (ii) if vesting of such award is Company performance-based, the date of vesting or lapse of restriction on such award due to Company’s achievement of such performance (subject in all cases to the earlier expiration or termination of the applicable award). Mr. Overton would also be entitled to an annual Founder’s Retirement Benefit as earlier described. This benefit is an unfunded, unsecured promise to pay benefits in the future, and Mr. Overton has no right or interest in any of our specific assets by virtue of this obligation. The following table shows the potential payments to Mr. Overton upon a termination of his employment or a change in control of the Company underpursuant to Mr. Overton’s employment agreementEmployment Agreement, the Stock Plan and award agreements evidencing the grant of outstanding equity awards, not including accrued payments that would be owed through the termination date. In accordance with SEC rules, this table assumes that (i) the triggering event took place on December 29, 2020,January 2, 2024, the last business day of our fiscal 2020;2023; (ii) the intrinsic
value of nonqualifiednon-qualified stock option share acceleration is computed by multiplying the difference between the applicable exercise prices and the market price of our common stock on December 29, 2020January 2, 2024 ($36.98)34.36) by the number of unvested options that are subject to acceleration; (iii) the value of restricted share acceleration is computed by multiplying the market price of our common stock on December 29, 2020January 2, 2024 by the number of unvested restricted shares that are subject to acceleration with performance shares assumed to have paid out at target; and (iv) a performance incentive bonus was earned in fiscal 20202023 at the level set forth in the “Summary Compensation Table.”
CHIEF EXECUTIVE OFFICERCEO POTENTIAL PAYMENTS UPON TERMINATION OR CHANGE IN
CONTROL AS OF DECEMBER 29, 2020
JANUARY 2, 2024
| | | | | | | Change In Control | | | | Qualifying Termination of Employment
without Change In Control | | | | | | David Overton | | | | Payout with
assumption or
continuation
of awards(1)
($) | | | | Payout without
assumption or
continuation
of awards
($) | | | | Payout upon
termination
by Company
without
Cause, or by
Executive
due to
Constructive
Termination
($) | | | | Payout upon
Death or
Permanent
Disability
($) | | | | Payout upon
termination
by Company
without
Cause, or
by Executive
due to
Constructive
Termination
($) | | | | Payout upon
termination
with Cause
or voluntary
termination,
including
retirement
($) | | | | | | Cash Severance(6) | | | | | | — | | | | | | | — | | | | | | | 256,404 | | | | | | | — | | | | | | | 256,404 | | | | | | | — | | | | | | | Pro-Rata Bonus(7) | | | | | | — | | | | | | | — | | | | | | | 1,020,621 | | | | | | | — | | | | | | | 1,020,621 | | | | | | | — | | | | | | | Intrinsic Value of Equity Acceleration | | | | | | — | | | | | | | 13,809,284(2) | | | | | | | 13,809,284(3) | | | | | | | 13,809,284(4) | | | | | | | 6,573,755(5) | | | | | | | — | | | | | | | Benefits and Other Perquisites(8) | | | | | | — | | | | | | | — | | | | | | | 8,298 | | | | | | | — | | | | | | | 8,298 | | | | | | | — | | | | | | | Health & Welfare Benefits(8) | | | | | | — | | | | | | | — | | | | | | | 4,818 | | | | | | | — | | | | | | | 4,818 | | | | | | | — | | | | | | | Gross-up on Excise Tax | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | Founder’s Retirement Benefit(9) | | | | | | — | | | | | | | — | | | | | | | 5,055,000 | | | | | | | 5,055,000 | | | | | | | 5,055,000 | | | | | | | 5,055,000 | | | | | | | Total CEO Benefit | | | | | | — | | | | | | | 13,809,284 | | | | | | | 20,154,425 | | | | | | | 18,864,284 | | | | | | | 12,918,896 | | | | | | | 5,055,000 | | | |
| | | | | | | Change In Control | | | | Qualifying Termination of Employment
without Change In Control | | | | | | David Overton | | | | Payout with
assumption or
continuation
of awards(1)
($) | | | | Payout without
assumption or
continuation
of awards(2)
($) | | | | Payout upon
termination
by Company
without
Cause, or by
Executive
due to
Constructive
Termination(3)
($) | | | | Payout upon
Death or
Permanent
Disability(4)
($) | | | | Payout upon
termination
by Company
without
Cause, or
by Executive
due to
Constructive
Termination(5)
($) | | | | Payout upon
termination
with Cause
or voluntary
termination,
including
retirement
($) | | | | | | Cash Severance(6) | | | | | | — | | | | | | | — | | | | | | | 252,577 | | | | | | | — | | | | | | | 252,577 | | | | | | | — | | | | | | | Pro-Rata Bonus(7) | | | | | | — | | | | | | | — | | | | | | | 1,094,500 | | | | | | | — | | | | | | | 1,094,500 | | | | | | | — | | | | | | | Intrinsic Value of Equity Acceleration(8) | | | | | | — | | | | | | | 5,025,582 | | | | | | | 1,901,142 | | | | | | | 1,901,142 | | | | | | | 3,973,871 | | | | | | | — | | | | | | | Benefits and Other Perquisites(9) | | | | | | — | | | | | | | — | | | | | | | 5,721 | | | | | | | — | | | | | | | 5,721 | | | | | | | — | | | | | | | Health & Welfare Benefits(9) | | | | | | — | | | | | | | — | | | | | | | 4,962 | | | | | | | — | | | | | | | 4,962 | | | | | | | — | | | | | | | Gross-up on Excise Tax | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | Founder’s Retirement Benefit(10) | | | | | | — | | | | | | | — | | | | | | | 6,115,000 | | | | | | | 6,115,000 | | | | | | | 6,115,000 | | | | | | | 6,115,000 | | | | | | | Total CEO Benefit | | | | | | — | | | | | | | 5,025,582 | | | | | | | 9,373,902 | | | | | | | 8,016,142 | | | | | | | 11,446,631 | | | | | | | 6,115,000 | | | |
(1)
Neither Mr. Overton’s employment agreement, nor any of Mr. Overton’s outstanding unvested equity award agreements provide for an automatic acceleration of vesting of equity awards solely as a result of a Change in Control (as defined under such documents). The information in this column assumes that a Change in Control occurs without the occurrence of any of the triggering events discussed in footnotes (2) or (3). (2)
Certain award agreements granted to Mr. Overton provide forAmount represents the accelerationvalue of accelerated vesting of options and restricted shares only ifoutstanding equity awards assuming that such equity awards are not assumed in connection with a Change in Control and further assuming that performance conditions continuing to affect the acquirer does not assume or continue such awards. In addition,vesting of awards under the Stock Plan that are not assumed or continued upon a “change in control” (as defined in the Stock Plan) by the acquirer will accelerate with time-vesting awards vesting in full and performance awards vestingsatisfied at the greater of pro-rated target or actual performance as of the date of such Change in Control.
(3)
Amount represents the changevalue of accelerated vesting of outstanding options and restricted stock in control. The information in this column assumes that bothconnection with a qualifying termination within 18-months following a Change in Control occurred andassuming that performance conditions continuing to affect the acquirer did not assume or continue anyvesting of the awards.awards are satisfied at target. (3)
(4)
Mr. Overton’s employment agreement provides forAmount represents the accelerationvalue of accelerated vesting of outstanding stock options and restricted shares which otherwise would have vested within the ensuing 24-month period if Mr. Overton’s employment is terminated by the Company without Cause or Mr. Overton terminates his employment due to Constructive Termination (each as definedstock in Mr. Overton’s employment agreement). In addition, certain award agreements granted to Mr. Overton provide for the acceleration of vesting of options and restricted shares which otherwise would have vested within the ensuing 24-month period only if within 18 months ofconnection with a Change in Control, Mr. Overton terminates his employment due to Constructive Termination (as defined in Mr. Overton’s employment agreement). Pursuant to the Stock Plan, if Mr. Overton is terminated without “cause” or for “good reason” within 12 months following a “change in control” (each such term as defined in the Stock Plan), unvested equity awards will vest in full, subject to the terms of the applicable grant agreement and Mr. Overton’s employment agreement.
(4)
Certain award agreements granted to Mr. Overton provide for the acceleration of vesting of options and restricted shares which otherwise would have vested within the ensuing 24-month period if Mr. Overton’s employment is terminatedtermination due to death or Permanent Disability.Disability assuming that performance conditions continuing to affect the vesting of awards are satisfied at target. In addition, Mr. Overton’s estate or designated beneficiary would be eligible to receive $497,500 in life insurance proceeds upon his death (i.e., 50% of his base salary for 2020)2023). This life insurance benefit is provided to all salaried employees at
(5)
Amount represents the ratevalue of one-times annual base salary up to $750,000accelerated vesting of outstanding stock options and is reduced to 65% of base salary at age 65 and 50% of base salary at age 70; for the avoidance of doubt, Mr. Overton would be entitled to these benefits on a termination due to death or Permanent Disability whether or notrestricted stock in connection with a Change in Control.termination by the Company without Cause or due to a Constructive Termination assuming that performance conditions continuing to affect the vesting of awards are satisfied at target.
(5)
(6)
Mr. Overton’s employment agreement provides forAmounts represent the accelerationvalue of vesting of options and restricted shares which otherwise would have vested within the ensuing 24-month period if Mr. Overton’s employment is terminated by the Company without Cause or Mr. Overton terminates his employment due to Constructive Termination (each as defined in Mr. Overton’s employment agreement).
(6)
Pursuant to Mr. Overton’s employment agreement, cash severance is comprised of payment of Mr. Overton’s annual salary from the date of termination to the expiration of the then current term of his employment agreement (the “Continuation Period”). Mr. Overton’s employment agreement has a term ending on April 1, 2021.2024.
(7)
AssumesAmounts represent the value of Mr. Overton’s annual bonus assuming that the performance objectives for fiscal year 20202023 under our Performance Incentive Plan were satisfied at the targeted levellevels set forth in the “Summary Compensation Table”, as certified by our Compensation Committee in 2024, and Mr. Overtonthe executive remained employed for the full fiscal year. Under his employment agreement, however, Mr. Overton would only would receive a pro rata portion of such bonus for the period of actual service in the fiscal year during which termination occurs.
(8)
Assumes accelerated vesting only for those options and restricted stock awards which would vest after (a) a ChangeAmounts in Control without assumption or continuationthis row represent the value of awards by the acquirer, (b) a Change in Control followed within 18 months by Mr. Overton’s voluntary termination due to Constructive Termination, (c) a change in control followed within 12 months by Mr. Overton’s termination by the Company without “cause” or resignation by Mr. Overton for “good reason”, (d) his death or Permanent Disability, or (e) his termination by the Company without Cause or Constructive Termination, as noted in footnotes (2), (3), (4) and (5). Also assumes that, for any vesting that is subject to a Company performance condition, such condition has been satisfied as of the acceleration date of such award.
(9)
For the Continuation Period only, Mr. Overton would be entitled to use of a car, life insurance and health and welfare benefits.benefits, in each case, during the Continuation Period. Following any termination without Cause, he also would be entitled to certain dining privileges at our restaurants, and for a period of ten years, use of an office and secretary at our corporate center while he continues to perform certain consulting services for the Company.
(10)
(9)
This benefit is providedAmounts in recognition of Mr. Overton’s key role in the creation and development of the Company and his ongoing participation in our growth and operational achievements. This representsthis row represent the net present value of $650,000 per year for a period of ten years after separation from service, calculated using a 0.94%3.95% discount rate (based on the 10 Year Treasury Yield Rate in effect on December 29, 2020)January 2, 2024) and 12 monthly payments for each year.
Named Executive Officers other than Chief Executive Officer.CEO. Under each NEO Employment Agreement, the executive will be entitled to a severance payment in cash equal to one times his or her then current annual base salary payable in installments and a pro-rata annual bonus for the fiscal year in which the termination occurred based on length of service and actual performance, if during the term of the agreement (i) we terminate his or her employment for any reason other than a Termination With Cause; (ii) if the executive’s employment is terminated by reason of death or Permanent Disability; (iii) if within 18 months after a change in control we terminate the executive’s employment (whether or not the term of the agreement ended without renewal) for any reason other than a Termination With Cause; or (iv) if the executive terminates the agreement in connection with the occurrence of a Constructive Termination during the term or within 18 months after a Change in Control (as defined in the NEO Employment Agreements), whether or not the term has expired. Certain other medical, dental and hospitalization benefits (or such comparable alternative benefits determined by us) for the executive and his or her dependents also will be paid by us for an additional 12 months, unless sooner provided by a subsequent employer. In addition, all installments of equity awards that are scheduled to vest within 24 months of an executive’s termination date would vest and, as applicable, become exercisable and vest as of such termination date; provided, however, that any performance-based awards will be subject to achievement of their underlying performance goals. In the event of any termination other than a Termination With Cause, the executive generally will have the right to exercise any vested equity awards for a period of 24 months (or 36 months in the case of retirement with 20 continuous years of service) from the later of (i) the date of his or her Separation from Service (as defined in the NEO Employment Agreement) or (ii) if vesting of such award is Company performance-based, the date of vesting or lapse of restriction on such award due to Company’s achievement of such performance (subject in all cases to the earlier expiration or termination of the applicable award). Acceleration of Equity Awards in connection with a Change in Control. Outstanding equity awards under the Stock Plan that are not assumed or continued upon a “change in control” (as defined in the Stock Plan) by
the acquirer will accelerate with time-vesting awards vesting in full and performance awards vesting at the greater of pro-rated target or actual performance as of the date of the change in control. Outstanding equity awards that are assumed or continued by the acquirer will (i) vest in full if the Named Executive Officer is terminated without “cause” or for “good reason” within 12 months following such change in control, subject to the terms of the applicable grant agreement and the executive’s employment agreement, and/or (ii) if the Named Executive Officer experiences a “constructive termination” or a termination for “good reason” within 18 months following such change in control, then any awards that scheduled to vest within 24 months after the termination will vest upon termination with performance-based awards subject to achievement of their underlying goals.
With respect to equity awards outstanding under our 2010 Stock Incentive Plan as amended (the “2010 Stock Plan”), if there is no assumption or continuation upon a “change in control” (as defined in the 2010 Stock Plan) by the acquirer, such equity awards will vest in full as of immediately prior to such change in control. In addition, in the event that outstanding equity awards are assumed or continued by the acquirer in connection with a change in control and the applicable Named Executive Officer experiences a “constructive termination” or a termination for “good reason” within 18 months following such change in control, then any awards that are scheduled to vest within 24 months after the termination will vest upon termination with performance-based awards subject to achievement of their underlying goals.
Potential Payments uponUpon Termination or Change in Control. The following table shows the potential payments upon termination of employment or a change in control for the Named Executive Officers other than Mr. Overton and does not include accrued payments that would be owed through the termination date. In accordance with SEC rules, the table assumes that (i) the triggering event took place on December 29, 2020,January 2, 2024, the last business day of our fiscal 2020;2023; (ii) the intrinsic value of nonqualifiednon-qualified stock option share acceleration is computed by multiplying the difference between the applicable exercise prices and the market price of our common stock on December 29, 2020January 2, 2024 ($36.98)34.36) by the number of unvested options that are subject to acceleration; (iii) the value of restricted share acceleration is computed by multiplying the market price of our common stock on December 29, 2020January 2, 2024 by the number of unvested restricted shares that are subject to acceleration with performance shares assumed to have paid out at target.; and (iv) a performance incentive bonus was earned in fiscal 20202023 at the level set forth in the “Summary Compensation Table” for each individual.
EXECUTIVE OFFICERS OTHER THAN CHIEF EXECUTIVE OFFICER CEO
POTENTIAL PAYMENTS UPON TERMINATION OR CHANGE IN CONTROL
AS OF DECEMBER 29, 2020JANUARY 2, 2024 | | | | | | | Change In Control | | | | Termination without Change In Control | | | | | | | | Change In Control | | | | Termination without Change In Control | | | | | | | | | | Payout with
assumption or
continuation of
awards(1)
($) | | | | Payout without
assumption or
continuation of
awards(2)
($) | | | | Payout upon
termination by
Company
without
Cause, or
Constructive
Termination by
Executive
within
18 months(3)
($) | | | | Payout
upon
permanent
disability
($) | | | | Payout
upon
death
($) | | | | Payout upon
termination by
Company
without
Cause, or by
Executive as
a result of
Constructive
Termination
($) | | | | Payout
upon
termination
with Cause
or
voluntary
termination,
including
retirement
($) | | | | | | | | Payout with
assumption or
continuation of
awards(1)
($) | | | | Payout without
assumption or
continuation of
awards(2)
($) | | | | Payout upon
termination by
Company
without
Cause, or
Constructive
Termination by
Executive
within
18 months
($) | | | | Payout
upon
permanent
disability
($) | | | | Payout
upon
death
($) | | | | Payout upon
termination by
Company
without
Cause, or by
Executive as
a result of
Constructive
Termination
($) | | | | Payout
upon
termination
with Cause
or
voluntary
termination,
including
retirement
($) | | | | | | David M. Gordon | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | David M. Gordon | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Cash Severance(5) | | | | | | — | | | | | | | — | | | | | | | 675,000 | | | | | | | 675,000 | | | | | | | 675,000 | | | | | | | 675,000 | | | | | | | — | | | | | Cash Severance(5) | | | | | | — | | | | | | | — | | | | | | | 750,000 | | | | | | | 750,000 | | | | | | | 750,000 | | | | | | | 750,000 | | | | | | | — | | | | | | | Pro-Rata Bonus(6) | | | | | | — | | | | | | | — | | | | | | | 189,000 | | | | | | | 189,000 | | | | | | | 189,000 | | | | | | | 189,000 | | | | | | | — | | | | | Pro-Rata Bonus(6) | | | | | | — | | | | | | | — | | | | | | | 559,500 | | | | | | | 559,500 | | | | | | | 559,500 | | | | | | | 559,500 | | | | | | | — | | | | | | | Intrinsic Value of Equity
Acceleration(7) | | | | | | — | | | | | | | 1,140,574 | | | | | | | 431,668 | | | | | | | 431,668(4) | | | | | | | 431,668(4) | | | | | | | 902,423(9) | | | | | | | — | | | | | Intrinsic Value of Equity Acceleration(7) | | | | | | — | | | | | | | 3,422,325 | | | | | | | 3,422,325 | | | | | | | 3,422,325(3) | | | | | | | 3,422,325(3) | | | | | | | 1,613,958 | | | | | | | — | | | | | | | Health & Welfare Benefits(8) | | | | | | — | | | | | | | — | | | | | | | 16,935 | | | | | | | 16,935 | | | | | | | 16,935 | | | | | | | 16,935 | | | | | | | — | | | | | Health & Welfare Benefits(8) | | | | | | — | | | | | | | — | | | | | | | 16,576 | | | | | | | 16,576 | | | | | | | 16,576 | | | | | | | 16,576 | | | | | | | — | | | | | | | Gross-up on Excise Tax | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | Gross-up on Excise Tax | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | David M. Gordon Total | | | | | | — | | | | | | | 1,140,574 | | | | | | | 1,312,603 | | | | | | | 1,312,603 | | | | | | | 1,312,603 | | | | | | | 1,783,358 | | | | | | | — | | | | | David M. Gordon Total | | | | | | — | | | | | | | 3,422,325 | | | | | | | 4,748,401 | | | | | | | 4,748,401 | | | | | | | 4,748,401 | | | | | | | 2,940,034 | | | | | | | — | | | | | | | Matthew E. Clark | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Matthew E. Clark | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Cash Severance(5) | | | | | | — | | | | | | | — | | | | | | | 535,000 | | | | | | | 535,000 | | | | | | | 535,000 | | | | | | | 535,000 | | | | | | | — | | | | | Cash Severance(5) | | | | | | — | | | | | | | — | | | | | | | 595,000 | | | | | | | 595,000 | | | | | | | 595,000 | | | | | | | 595,000 | | | | | | | — | | | | | | | Pro-Rata Bonus(6) | | | | | | — | | | | | | | — | | | | | | | 131,075 | | | | | | | 131,075 | | | | | | | 131,075 | | | | | | | 131,075 | | | | | | | — | | | | | Pro-Rata Bonus(6) | | | | | | — | | | | | | | — | | | | | | | 416,128 | | | | | | | 416,128 | | | | | | | 416,128 | | | | | | | 416,128 | | | | | | | — | | | | | | | Intrinsic Value of Equity
Acceleration(7) | | | | | | — | | | | | | | 983,298 | | | | | | | 322,466 | | | | | | | 322,466(4) | | | | | | | 322,466(4) | | | | | | | 838,337(9) | | | | | | | — | | | | | Intrinsic Value of Equity Acceleration(7) | | | | | | — | | | | | | | 2,522,849 | | | | | | | 2,522,849(4) | | | | | | | 2,522,849(3) | | | | | | | 2,522,849(3) | | | | | | | 1,430,201(3) | | | | | | | — | | | | | | | Health & Welfare Benefits(8) | | | | | | — | | | | | | | — | | | | | | | 16,935 | | | | | | | 16,935 | | | | | | | 16,935 | | | | | | | 16,935 | | | | | | | — | | | | | Health & Welfare Benefits(8) | | | | | | — | | | | | | | — | | | | | | | 16,482 | | | | | | | 16,482 | | | | | | | 16,482 | | | | | | | 16,482 | | | | | | | — | | | | | | | Gross-up on Excise Tax | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | Gross-up on Excise Tax | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | Matthew E. Clark Total | | | | | | — | | | | | | | 983,298 | | | | | | | 1,005,476 | | | | | | | 1,005,476 | | | | | | | 1,005,476 | | | | | | | 1,521,347 | | | | | | | — | | | | | Matthew E. Clark Total | | | | | | — | | | | | | | 2,522,849 | | | | | | | 3,550,459 | | | | | | | 3,550,459 | | | | | | | 3,550,459 | | | | | | | 2,457,811 | | | | | | | — | | | | | | | Scarlett May | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Scarlett May | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Cash Severance(5) | | | | | | — | | | | | | | — | ��� | | | | | | 510,000 | | | | | | | 510,000 | | | | | | | 510,000 | | | | | | | 510,000 | | | | | | | — | | | | | Cash Severance(5) | | | | | | — | | | | | | | — | | | | | | | 567,500 | | | | | | | 567,500 | | | | | | | 567,500 | | | | | | | 567,500 | | | | | | | — | | | | | | | Pro-Rata Bonus(6) | | | | | | — | | | | | | | — | | | | | | | 116,025 | | | | | | | 116,025 | | | | | | | 116,025 | | | | | | | 116,025 | | | | | | | — | | | | | Pro-Rata Bonus(6) | | | | | | — | | | | | | | — | | | | | | | 343,976 | | | | | | | 343,976 | | | | | | | 343,976 | | | | | | | 343,976 | | | | | | | — | | | | | | | Intrinsic Value of Equity
Acceleration(7) | | | | | | — | | | | | | | 892,327 | | | | | | | 379,415 | | | | | | | 379,415(4) | | | | | | | 379,415(4) | | | | | | | 724,438(9) | | | | | | | — | | | | | Intrinsic Value of Equity Acceleration(7) | | | | | | — | | | | | | | 1,604,337 | | | | | | | 1,604,337(4) | | | | | | | 1,604,337(3) | | | | | | | 1,604,337(3) | | | | | | | 788,631(3) | | | | | | | — | | | | | | | Health & Welfare Benefits(8) | | | | | | — | | | | | | | — | | | | | | | 23,054 | | | | | | | 23,054 | | | | | | | 23,054 | | | | | | | 23,054 | | | | | | | — | | | | | Health & Welfare Benefits(8) | | | | | | — | | | | | | | — | | | | | | | 23,872 | | | | | | | 23,872 | | | | | | | 23,872 | | | | | | | 23,872 | | | | | | | — | | | | | | | Gross-up on Excise Tax | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | Gross-up on Excise Tax | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | Scarlett May Total | | | | | | — | | | | | | | 892,327 | | | | | | | 1,028,494 | | | | | | | 1,028,494 | | | | | | | 1,028,494 | | | | | | | 1,373,517 | | | | | | | — | | | | | Scarlett May Total | | | | | | — | | | | | | | 1,604,337 | | | | | | | 2,539,685 | | | | | | | 2,539,685 | | | | | | | 2,539,685 | | | | | | | 1,723,979 | | | | | | | — | | | | | | | Keith T. Carango | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Keith T. Carango | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Cash Severance(5) | | | | | | — | | | | | | | — | | | | | | | 415,000 | | | | | | | 415,000 | | | | | | | 415,000 | | | | | | | 415,000 | | | | | | | — | | | | | Cash Severance(5) | | | | | | — | | | | | | | — | | | | | | | 462,500 | | | | | | | 462,500 | | | | | | | 462,500 | | | | | | | 462,500 | | | | | | | — | | | | | | | Pro-Rata Bonus(6) | | | | | | — | | | | | | | — | | | | | | | 128,131 | | | | | | | 128,131 | | | | | | | 128,131 | | | | | | | 128,131 | | | | | | | — | | | | | Pro-Rata Bonus(6) | | | | | | — | | | | | | | — | | | | | | | 223,890 | | | | | | | 223,890 | | | | | | | 223,890 | | | | | | | 223,890 | | | | | | | — | | | | | | | Intrinsic Value of Equity
Acceleration(7) | | | | | | — | | | | | | | 690,786 | | | | | | | 368,321 | | | | | | | 368,321(4) | | | | | | | 368,321(4) | | | | | | | 556,919(9) | | | | | | | — | | | | | Intrinsic Value of Equity Acceleration(7) | | | | | | — | | | | | | | 1,262,043 | | | | | | | 1,262,043(4) | | | | | | | 1,262,043(3) | | | | | | | 1,262,043(3) | | | | | | | 598,551(3) | | | | | | | — | | | | | | | Health & Welfare Benefits(8) | | | | | | — | | | | | | | — | | | | | | | 39,617 | | | | | | | 39,617 | | | | | | | 39,617 | | | | | | | 39,617 | | | | | | | — | | | | | Health & Welfare Benefits(8) | | | | | | — | | | | | | | — | | | | | | | 16,002 | | | | | | | 16,002 | | | | | | | 16,002 | | | | | | | 16,002 | | | | | | | — | | | | | | | Gross-up on Excise Tax | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | Gross-up on Excise Tax | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | — | | | | | | | Keith T. Carango Total | | | | | | — | | | | | | | 690,786 | | | | | | | 951,069 | | | | | | | 951,069 | | | | | | | 951,069 | | | | | | | 1,139,667 | | | | | | | — | | | | | Keith T. Carango Total | | | | | | — | | | | | | | 1,262,043 | | | | | | | 1,964,435 | | | | | | | 1,964,435 | | | | | | | 1,964,435 | | | | | | | 1,300,943 | | | | | | | — | | | | | | | Total Payments (including those for Mr. Overton (see CEO Table above)) | | | | | | — | | | | | | | 8,732,567 | | | | | | | 13,671,544 | | | | | | | 12,313,784 | | | | | | | 12,313,784 | | | | | | | 17,264,520 | | | | | | | 6,115,000 | | | | | Total Payments (including those for Mr. Overton (see CEO Table above)) | | | | | | — | | | | | | | 22,620,838 | | | | | | | 32,957,405 | | | | | | | 31,667,264 | | | | | | | 31,667,264 | | | | | | | 21,341,663 | | | | | | | 5,055,000 | | | |
(1)
None of the NEO Employment Agreements, nor any of the executives’ award agreements under which there are outstanding unvested awards, provide for an automatic acceleration of vesting of awards solely as a result of a Change in Control (as defined under such documents) (a so called “Single Trigger”). The information in this column assumes that a Change in Control occurs without the occurrence of any of the events discussed in footnotes (2) or (3). (2)
(2)
Certain award agreements granted toAmounts represent the executives provide for the accelerationvalue of accelerated vesting of options and restricted shares only ifoutstanding equity awards assuming such equity awards are not assumed in connection with a Change in Control and further assuming that performance conditions continuing to affect the acquirer does not assume or continue such awards. The information in this column assumes that both a Change in Control occurs and the acquirer does not assume or continue anyvesting of the awards. In addition, awards under the Stock Plan that are not assumed or continued upon a “change in control” (as defined in the Stock Plan) by the acquirer will accelerate with time-vesting awards vesting in full and performance awards vestingsatisfied at the greater of pro-rated target or actual performance as of the date of the changesuch Change in control.Control.
(3)
The NEO Employment Agreements provide for accelerationAmounts represent the value of accelerated vesting of outstanding options and restricted shares which otherwise would have vested within the ensuing 24-month period if the executive’s employment is terminated by the Company without Cause or the executive terminates his or her employment due to Constructive Termination (as definedstock in the NEO Employment Agreements). In addition, certain award agreements granted to NEOs provide for the acceleration of vesting of 24 months of unvested equity awards if within 18 months ofconnection with a Change in Control, the executive terminates employment due to a Constructive Termination, provided that if vesting is subject to a Company performance condition, the accelerated vesting only occurs if, as and when such condition is achieved. In addition, pursuant to the Stock Plan, if executive is terminated without “cause” or for “good reason” within 12 months following a “change in control” (each such term as defined in the Stock Plan), unvested equity awards will vest in full, subject to the terms of the applicable grant agreement and the executive’s employment agreement.
(4)
The NEO Employment Agreements provide for acceleration of vesting 24 months of unvested equity awards in in the event of a termination by the executive’s voluntary termination for Constructive Termination, termination by the Company without Cause, due to a Constructive Termination or by reason ofdue to the Named Executive Officer’s death or Permanent Disability, whether or notin each case, assuming that performance conditions continuing to affect the vesting of awards are satisfied at target.
(4)
Amounts represent the value of accelerated vesting of outstanding options and restricted stock in connection with a qualifying termination within 18-months following a Change in Control (each as defined inassuming that performance conditions continuing to affect the NEO Employment Agreements), provided that if vesting is subject to a Company performance condition, the accelerated vesting only occurs if, as and when such condition is achieved.of awards are satisfied at target. (5)
Under the NEO Employment Agreements,Amounts represent payment would equalof 12 months of the executive’sNamed Executive Officer’s annual base salary.
(6)
AssumesAmounts represent the value of the applicable Named Executive Officer’s annual bonus assuming that the performance objectives for fiscal year 20202023 under our Performance Incentive Plan were satisfied at target levelthe levels set forth in the “Summary Compensation Table”, as certified by our Compensation Committee in 2024, and the executive remained employed for the full fiscal year. Under the NEO Employment Agreements, however, the applicable executive would only receive a pro-rata portion of such bonus for the period of actual service in the fiscal year during which termination occurs.
(7)
Assumes accelerated vesting only for those equity awards which would vest after (a) a ChangeAmounts in Control without assumption or continuation of awards by the acquirer, or (b) a Change in Control followed within 18 months by the executive’s voluntary termination for Constructive Termination or termination by the Company without Cause, (c) a change in control followed withinthis column represent 12 months by the executive’s termination by the Company without “cause” or resignation by the executive for “good reason”, or (d) his or her death or Permanent Disability, as noted in footnotes (2), (3) and (4). Also assumes that, for any vesting that is subject to a Company performance condition, such condition has been satisfied as of the acceleration date of such award at target level. Values for awards with performance conditions are based on target performance.
(8)
Under the NEO Employment Agreements, for a 12-month period after the termination date, the Company shall, at its expense, continue on behalf of the executive and his or her dependents,Company-paid continued medical, dental, vision care and hospitalization benefits, limited to the extent that the executive obtains any such benefits pursuant to his or her subsequent employer’s benefit plan.
(9)
The NEO Employment Agreements provide for acceleration of awards granted through 2019 which otherwise would have vested within the ensuing 24-month period and acceleration of vesting of all awards granted in 2020 if an executive’s employment is terminated by the Company without Cause or the executive terminates his or her employment due to Constructive Termination (as defined in the NEO Employment Agreements).benefits.
In addition to the payments set forth above, each executive’sNamed Executive Officer’s estate or designated beneficiary would be eligible to receive a life insurance payment upon death. This life insurance benefit is provided to all salaried employees at the rate of one times annual base salary up to $750,000 and is reduced to 65% of base salary at age 65 and 50% of base salary at age 70. Please see the section entitled “Other Benefits and Perquisites” in this Proxy Statement. CEO Pay Ratio We believe that executive pay should align with the value and contributions that our executives bring to the business, while ensuring that we are paying competitively across our different markets and job levels. As required by Section 953(b) of the Dodd Frank Wall Street Reform and Consumer Protection Act, and Regulation 402(u) of Regulation S-K, we are providing the following information about the relationship of the annual total compensation of our employees and the total annual compensation of Mr. Overton, our CEO. The pay ratio included in this information is a reasonable estimate calculated in a manner consistent with Item 402(u) of Regulation S-K. For fiscal 2023: •
the median of the annual total compensation of all employees of our Company (other than our CEO) was $30,417 and represents the total compensation of a part-time staff member working approximately 17 hours per week; and •
the annual total compensation of our CEO, as reported in the “Summary Compensation Table,” was $7,658,919. Based on this information, for fiscal 2023, our CEO’s annual total compensation was 252 times that of the median of the annual compensation of all employees.
To identify the median of the annual total compensation of all employees, as well as to determine the annual total compensation of our median employee and our CEO, we took the following steps: 1.
We determined that as of January 2, 2024, our employee population consisted of 45,732 individuals. This population consisted of both full-time and part-time employees. As part of our methodology, we excluded individuals who have not provided services and as a result have no earnings and, in reliance with the “de minimis” exemption under Item 402(u) of Regulation S-K, we excluded all employees in Canada totaling 314 or approximately 0.7% of our total workforce. 2.
To identify the median employee from our employee population, we compared the amount of total wages (including reported tips) of our employees as reflected in our payroll records as reported to the Internal Revenue Service on Form W-2 for 2023. Given our workforce with similar high turnover rates inherent in the restaurant industry, our methodology included annualizing the compensation for permanent employees who did not work a full calendar year to properly reflect their compensation levels. However, even with this annualizing, many employees had very low hours and had not reached a stabilized work schedule. We did not perform any full-time equivalency adjustments. We believe the use of total wages for all employees is a consistently applied compensation measure. 3.
We identified our median employee by using this compensation measure, which we consistently applied to all our employees included in the calculation. We did not make any cost-of-living adjustments in identifying the median employee. Again, the median of the annual total compensation of all employees of our company (other than our CEO) represents a part-time staff member and was $30,417 working approximately 17 hours per week. 4.
Once we identified our median employee, we combined all of the elements of such employee’s compensation for 2023 in accordance with the requirements of Item 402(c)(2)(x) of Regulation S-K on an annualized basis, resulting in annual total compensation of $30,417. 5.
With respect to the annual total compensation of our CEO, we used the amount reported in the “Total” column in the “Summary Compensation Table,” above.
REPORT OF THE AUDIT COMMITTEE OF THE BOARDPay Versus Performance
The following Audit Committee report does not constitute soliciting material and is not deemed filed or incorporated by reference into any other Company filingPursuant to Item 402(v) of Regulation S-K promulgated under the Securities Act of 1933, as amended, or the Securities Exchange Act, of 1934, as amended, except to the extent the Company specifically incorporates this Audit Committee report by reference thereto.
As more fully described in its charter, the Audit Committee oversees our financial reporting and internal control processes on behalf of the Board, as well as the independent audit of our consolidated financial statements bywe are providing the Company’s independent registered accounting firm. The Audit Committee is responsible for appointment, compensation and oversight of our independent registered accounting firm, including fee negotiation. When assessing the independence of the Company’s independent registered accounting firm, the Audit Committee will consider non-audit fees and services.
The Audit Committee approved the engagement of KPMG LLP (“KPMG”) as the Company’s independent registered accounting firm for fiscal 2020, and the stockholders ratified that selection at the 2020 annual meeting of stockholders. Management“pay versus performance” disclosure below. This disclosure has the primary responsibility for the Company’s financial statements and the financial reporting process, including our system of internal controls. In fulfilling its oversight responsibilities, the Audit Committee reviewed and discussed our audited financial statements for fiscal 2020 with management and KPMG. Management and KPMG represented to the Audit Committee that the Company’s consolidated financial statements werebeen prepared in accordance with generally accepted accounting principles.Item 402(v) and does not necessarily reflect value actually realized by the executives or how our Compensation Committee evaluates compensation decisions in light of Company or individual performance. The use of the term “compensation actually paid” (“CAP”) is required by the SEC’s rules. Per SEC rules, CAP was created by adjusting the Summary Compensation Table (“SCT”) total values for the applicable year as described in the footnotes to the following table. Please refer to our Compensation Discussion and Analysis section for a discussion of our executive compensation program objectives and the ways in which we align executive compensation with performance.
The Audit Committee reviewedfollowing table sets forth information concerning the compensation of our Named Executive Officers (“NEOs”) for each of the fiscal years ended December 29, 2020; December 28, 2021; January 3, 2023 and January 2, 2024, and our financial performance for each such fiscal year: | | | (a) | | | | (b) | | | | (c) | | | | (d) | | | | (e) | | | | (f) | | | | (g) | | | | (h) | | | | (i) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Value of Initial Fixed
$100 Investment Based on: | | | | | | | | | | | | | | | | | | | | Fiscal
Year(1) | | | | Summary
Compensation
Table
Total
for PEO
($) | | | | CAP to PEO
($)(2) | | | | Average
SCT Total
for Non-PEO
NEOs
($) | | | | Average
CAP to
Non-PEO
NEOs
($)(2) | | | | Total
Shareholder
Return
($) | | | | Peer Group
Total
Shareholder
Return
($)(3) | | | | Net Income
(millions $) | | | | Company
Selected
Measure:
Adjusted
EBITDAR
(millions $)(4) | | | | | | 2023 | | | | | | 7,658,919 | | | | | | | 7,434,904 | | | | | | | 1,953,855 | | | | | | | 1,881,426 | | | | | | | 94.62 | | | | | | | 116.21 | | | | | | | 101 | | | | | | | 498 | | | | | | | 2022 | | | | | | 7,181,744 | | | | | | | 3,567,483 | | | | | | | 1,802,879 | | | | | | | 1,203,895 | | | | | | | 86.27 | | | | | | | 97.86 | | | | | | | 43 | | | | | | | 418 | | | | | | | 2021 | | | | | | 7,375,204 | | | | | | | 8,556,512 | | | | | | | 1,877,590 | | | | | | | 2,038,099 | | | | | | | 103.24 | | | | | | | 122.95 | | | | | | | 72 | | | | | | | 450 | | | | | | | 2020 | | | | | | 5,914,037 | | | | | | | 10,736,376 | | | | | | | 1,398,299 | | | | | | | 2,123,578 | | | | | | | 96.26 | | | | | | | 126.30 | | | | | | | (253) | | | | | | | 173 | | | |
(1)
The Principal Executive Officer (“PEO”) in all four reporting years is our CEO, David Overton. The NEOs in all four reporting years are David M. Gordon, Matthew E. Clark, Scarlett May and Keith T. Carango. (2)
CAP amount to our PEO and NEOs, as shown in columns (c) and (e) above in fiscal 2023 reflects the respective amounts shown in columns (b) and (d) of the table shown above, with KPMG such other mattersadjustments shown below as are required to be discussed withdetermined by the Audit Committee under generally accepted auditing standards, including the matters required to be discussed by Public Company Accounting Oversight Board (“PCAOB”) Auditing Standard No. 1301 “Communications with Audit Committees.” In addition, the Audit Committee has discussed with KPMG the auditors’ independence from management and the Company, including the mattersSEC rules:
| | | Year | | | | SCT
Total
($) | | | | Minus
SCT
Equity
($) | | | | Plus (Minus)
End of
Fiscal Year
Fair Value
of Equity
Awards
Granted
During
Fiscal Year
that are
Outstanding
and Unvested
at End of
Fiscal Year
($) | | | | Plus
(Minus)
Change
from
Beginning
of Fiscal
Year to End
of Fiscal
Year in Fair
Value of
Awards
Granted
in Any Prior
Fiscal Year
that are
Outstanding
and Unvested
at End of
Fiscal Year
($) | | | | Plus
(Minus)
Change in
Fair Value
from
Beginning
of Fiscal
Year to
Vesting
Date of
Awards
Granted
in Any
Prior Fiscal
Year that
Vested
During the
Fiscal Year
($) | | | | Plus
Value of
Dividends
or Other
Earnings
Paid on
Stock or
Option
Awards not
Otherwise
Reflected
in Fair
Value or Total
Compensation
($) | | | | Calculated
CAP
($) | | | | | | PEO | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 2023 | | | | | | 7,658,919 | | | | | | | 5,600,595 | | | | | | | 4,594,289 | | | | | | | (93,689) | | | | | | | 825,115 | | | | | | | 50,865 | | | | | | | 7,434,904 | | | | | | | 2022 | | | | | | 7,181,744 | | | | | | | 5,301,316 | | | | | | | 4,337,067 | | | | | | | (3,049,619) | | | | | | | 300,636 | | | | | | | 98,971 | | | | | | | 3,567,483 | | | | | | | 2021 | | | | | | 7,375,204 | | | | | | | 5,099,931 | | | | | | | 3,871,411 | | | | | | | 337,172 | | | | | | | 2,072,656 | | | | | | | — | | | | | | | 8,556,512 | | | | | | | 2020 | | | | | | 5,914,037 | | | | | | | 4,496,932 | | | | | | | 7,717,902 | | | | | | | 1,802,588 | | | | | | | (201,219) | | | | | | | —* | | | | | | | 10,736,376 | | | | | | | Average Non-PEO
NEOs | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 2023 | | | | | | 1,953,855 | | | | | | | 948,081 | | | | | | | 746,742 | | | | | | | (14,144) | | | | | | | 132,562 | | | | | | | 10,492 | | | | | | | 1,881,426 | | | | | | | 2022 | | | | | | 1,802,879 | | | | | | | 904,085 | | | | | | | 739,642 | | | | | | | (488,921) | | | | | | | 38,398 | | | | | | | 15,982 | | | | | | | 1,203,895 | | | | | | | 2021 | | | | | | 1,877,590 | | | | | | | 869,091 | | | | | | | 659,744 | | | | | | | 57,936 | | | | | | | 311,920 | | | | | | | — | | | | | | | 2,038,099 | | | | | | | 2020 | | | | | | 1,398,299 | | | | | | | 736,073 | | | | | | | 1,192,739 | | | | | | | 293,102 | | | | | | | (24,489) | | | | | | | —* | | | | | | | 2,123,578 | | | |
Fair value or change in fair value, as applicable, of equity awards in the written disclosures and“Compensation Actually Paid” columns was determined by reference to (i) for solely service-vesting restricted stock awards, the letter fromclosing price per share on the independent auditors requiredapplicable year-end date(s) or, in the case of vesting dates, the closing price per share on the applicable vesting date(s); (ii) for performance-based restricted stock awards, the same valuation methodology as restricted stock awards above except that the year-end values are multiplied by applicable requirementsthe probability of achievement of the PCAOB regarding independent accountant’s communicationsapplicable performance objective as of the applicable date; and (iii) for stock options, a Black Scholes value as of the applicable year-end or vesting date(s), determined based on the same methodology as used to determine grant date fair value but using the closing stock price on the applicable revaluation date as the current market price and with an expected life equal to the audit committee concerning independence. The Audit Committee discussed with KPMGoriginal ratio of expected life relative to the overall scopeten year contractual life multiplied times the remaining life as of the applicable revaluation date, and plans for its audit. The Audit Committee periodically met with KPMG, within all cases based on volatility and without management present,risk free rates determined as of the revaluation date based on the expected life period and based on the expected dividend rate as of the date of the applicable revaluation date. For additional information on the assumptions used to discusscalculate the resultsvaluation of its audit, its evaluation ofthe awards, see the Notes to Consolidated Financial Statements in our internal controls and the overall quality of our financial reporting. Based upon these reviews and discussions, the Audit Committee approved the recommendation of our management that the audited consolidated financial statementsAnnual Report on Form 10-K for the fiscal year ended January 2, 2024 and prior fiscal years.
*
Dividends paid in 2020 are captured in the “All Other Compensation” column of the SCT and thus are not additionally captured in this table. (3)
For the relevant fiscal year, represents the cumulative total shareholder return indexed to an initial investment of $100 per share of the S&P 600 Restaurants Index on December 30, 2019. (4)
Adjusted EBITDAR is a non-GAAP measure and is defined and reconicled from GAAP net income in Appendix A of this proxy statement. Relationship Between Financial Performance Measures. The graphs below compare the compensation actually paid to our CEO and the average of the compensation actually paid to our remaining Named
Executive Officers, with (i) our cumulative and Peer Group TSR, (ii) our net income, and (iii) our adjusted EBITDAR, in each case, for the fiscal years ended December 29, 2020 be included2020; December 28, 2021; January 3, 2023 and January 2, 2024. TSR amounts reported in the Company’s Annual Reportgraph assume an initial fixed investment of $100 on Form 10-K filed with SecuritiesDecember 30, 2019, and Exchange Commission.that all dividends, if any, were reinvested. | Dated: , 2021 | | | Respectfully submitted, | | | | | | David B. Pittaway, Chair
Alexander L. Cappello
Janice L. Meyer | |
Pay Versus Performance Tabular List. We believe the following performance measures represent the most important financial performance measures used by us to link compensation actually paid to our Named Executive Officers for the fiscal year ended January 2, 2024 to Company performance: •
Adjusted EBITDAR; •
Revenue growth; •
Adjusted average annual sales per productive square foot; and •
Adjusted annual controllable profit. For additional details regarding our most important financial performance measures, please see the section titled “Compensation Discussion and Analysis-Principal Elements of Compensation” in this Proxy Statement.
OTHER INFORMATION Internet Availability of Proxy Materials The Notice of Annual Meeting, this Proxy Statement and our Annual Report on Form 10-K for the fiscal year ended January 2, 2024 (the “Annual Report”) are available at www.proxyvote.com. Householding of Proxy Materials Pursuant to the rules adopted by the Securities and Exchange Commission, we may deliver one copy of each of the Notice of Annual Meeting, this Proxy Statement and Annual Report to two or more stockholders sharing the same address. This process, which is commonly referred to as “householding,” helps lower our costs and conserve natural resources. In accordance with these rules, only one Proxy Statement and Annual Report, or Notice of Availability, will be delivered to multiple stockholders sharing an address unless we have received contrary instructions from one or more of the stockholders. If, at any time, you no longer wish to participate in “householding” and would prefer to receive a separate Proxy Statement and Annual Report, or Notice of Availability, please notify your broker or direct your written request to Etienne Marcus, Vice President of Finance and Investor Relations, The Cheesecake Factory Incorporated, 26901 Malibu Hills Road, Calabasas Hills, California 91301, (818) 871-3000. Stockholders who currently receive multiple copies of the Proxy Statement and Annual Report, or Notice of Availability, at their address and would like to request “householding” of their communications should contact their broker.
Beneficial Ownership of Principal Stockholders and Management The following table sets forth certain information regarding the beneficial ownership as of March 15, 20212024 of our common stock by each person or entity known to us to beneficially own more than five percent (5%) of the outstanding shares of our common stock; each of our current directors and director nominees; our Named Executive Officers; and all of our executive officers and directors as a group. Name and Address of Beneficial Owner(1) | | | Amount and
Nature of Beneficial
Ownership(2) | | | Percentage
of Total
Outstanding(3) | | RC Cake Holdings LLC(4) | | | | | 9,603,456 | | | | | | 17.1% | | | BlackRock, Inc.(5) | | | | | 7,532,836 | | | | | | 16.2% | | | The Vanguard Group, Inc.(6) | | | | | 4,274,090 | | | | | | 9.2% | | | Kayne Anderson Rudnick Investment Management, LLC(7) | | | | | 3,931,098 | | | | | | 8.5% | | | | Named Executive Officers, Directors and Director nominees: | | | | | | | | | | | | | | David Overton(8) | | | | | 3,431,766 | | | | | | 7.3% | | | Edie A. Ames(9) | | | | | 5,940 | | | | | | * | | | Alexander L. Cappello(10) | | | | | 5,094 | | | | | | * | | | Paul D. Ginsberg(11) | | | | | — | | | | | | — | | | Jerome I. Kransdorf(12) | | | | | 13,750 | | | | | | * | | | Laurence B. Mindel(13) | | | | | 12,500 | | | | | | * | | | Janice L. Meyer(14) | | | | | 5,283 | | | | | | * | | | David B. Pittaway(15) | | | | | 13,122 | | | | | | * | | | Herbert Simon(16) | | | | | 195,000 | | | | | | * | | | David M. Gordon(17) | | | | | 176,245 | | | | | | * | | | Matthew E. Clark(18) | | | | | 114,892 | | | | | | * | | | Scarlett May(19) | | | | | 27,570 | | | | | | * | | | Keith T. Carango(20) | | | | | 55,059 | | | | | | * | | | All executive officers and directors as a group (13 persons)(21) | | | | | 4,056,221 | | | | | | 8.7% | | |
Name and Address of Beneficial Owner(1) | | | Amount and
Nature of Beneficial
Ownership(2) | | | Percentage
of Total
Outstanding(3) | | BlackRock, Inc(4) | | | | | 7,476,498 | | | | | | 14.6% | | | The Vanguard Group, Inc.(5) | | | | | 5,502,069 | | | | | | 10.8% | | | Kayne Anderson Rudnick Investment Management, LLC(6) | | | | | 2,947,277 | | | | | | 5.8% | | | Baron Capital Group, Inc.(7) | | | | | 2,200,000 | | | | | | 4.3% | | | EARNEST Partners, LLC(8) | | | | | 2,815,127 | | | | | | 5.5% | | | | Named Executive Officers, Directors and Director nominees: | | | | | | | | | | | | | | David Overton(9) | | | | | 3,793,521 | | | | | | 7.4% | | | Edie A. Ames(10) | | | | | 32,100 | | | | | | * | | | Alexander L. Cappello(11) | | | | | 13,318 | | | | | | * | | | Khanh Collins(12) | | | | | 8,592 | | | | | | * | | | Adam S. Gordon(13) | | | | | 3,652 | | | | | | * | | | Jerome I. Kransdorf(14) | | | | | 13,750 | | | | | | * | | | Janice L. Meyer(15) | | | | | 14,665 | | | | | | * | | | Laurence B. Mindel(16) | | | | | 12,500 | | | | | | * | | | David B. Pittaway(17) | | | | | 18,813 | | | | | | * | | | David M. Gordon(18) | | | | | 74,093 | | | | | | * | | | Matthew E. Clark(19) | | | | | 48,368 | | | | | | * | | | Scarlett May(20) | | | | | 40,643 | | | | | | * | | | Keith T. Carango(21) | | | | | 50,012 | | | | | | * | | | All executive officers and directors as a group (13 persons)(22) | | | | | 4,124,027 | | | | | | 8.1% | | |
*
Less than 1% of the issued and outstanding shares. (1)
Unless otherwise indicated in the footnotes below, the address for all beneficial owners included in this table is c/o The Cheesecake Factory Incorporated, 26901 Malibu Hills Road, Calabasas Hills, California 91301. (2)
The number of shares beneficially owned by each individual or entity is determined under the rules of the SEC and the information is not necessarily indicative of beneficial ownership for any other purpose. Under such rules, beneficial ownership includes any shares as to which the individual or entity has the sole or shared voting power or investment power plus any shares that the person or entity has the right to acquire within 60 days of the Record DateMarch 15, 2024 through the exercise of any stock option or other right. Shares that a person or entity has the right to acquire are deemed to be outstanding for the purpose of computing the percentage ownership of that person, but are not deemed to be outstanding for the purpose of computing the percentage ownership of any other person. (3)
Based on 46,409,77751,036,695 shares outstanding as of March 15, 2021.2024. (4)
RC Cake Holdings LLC (“Roark”), an affiliate of Roark Capital Group, beneficially owns 200,000 shares of the Company’s Series A preferred stock. Roark is not entitled to convert such shares to the extent that conversion of such shares into shares of common stock would result in Roark beneficially owning in excess of 19.9% of then outstanding common stock. As of March 15, 2021, Roark may convert all of its 200,000 shares of Series A preferred stock into 9,603,456 shares of our common stock
representing beneficial ownership of 17.1% of our outstanding common stock after taking into account the conversion of the Series A preferred stock into common stock. The address for Roark is 1180 Peachtree St NE, Suite 2500, Atlanta, GA 30309.
(5)
BlackRock, Inc. as a parent holding company or control person, beneficially owns 7,532,8367,476,498 shares of the Company. BlackRock, Inc. has sole power to vote or direct the vote of 7,289,9917,363,798 shares and sole power to dispose or direct the disposition of 7,532,8367,476,498 shares. The foregoing information is based solely on a Schedule 13G filed by BlackRock, Inc. on January 25, 202122, 2024 under the Securities Exchange Act of 1934.Act. The address for BlackRock, Inc. is 55 East 52nd Street,50 Hudson Yards, New York, NY 10055.10001.
(5)
The Vanguard Group, Inc. (“Vanguard”), in its capacity as investment advisor, may be deemed to beneficially own 4,274,0905,502,069 shares of the Company held of record by clients of Vanguard. Vanguard has shared power to vote or direct the vote of 42,36589,308 shares, sole power to dispose or direct the disposition of 4,199,0695,366,995 shares and shared power to dispose or direct the disposition of 75,021135,074 shares. The foregoing information is based solely on the Schedule 13G filed by Vanguard on February 8, 202113, 2024 under the Securities Exchange Act of 1934.Act. The address for Vanguard is 100 Vanguard Blvd., Malvern, PA 19355. (7)
(6)
Kayne Anderson Rudnick Investment Management, LLC (“Kayne Anderson”), in its capacity as investment advisor, may be deemed to beneficially own 3,931,0982,947,277 shares of the Company held of record by clients of Kayne Anderson. Kayne Anderson has sole power to vote or direct the vote of 2,765,5531,992,905 shares, shared power to vote or direct the vote of 1,165,545780,297 shares, sole power to dispose or direct the disposition of 2,765,5532,166,980 shares and shared power to dispose or direct the disposition of 1,165,545780,297 shares. The foregoing information is based solely on the Schedule 13G filed by Kayne Anderson on February 10, 202113, 2024 under the Securities Exchange Act of 1934.Act. The address for Kayne Anderson is 18002000 Avenue of the Stars, Second Floor,Suite 1110, Los Angeles, CA 90067. (7)
Baron Capital Group, Inc. (“BCG”), in its capacity as investment advisor, may be deemed to beneficially own 2,200,000 shares of the Company held of record by clients of BCG. BCG has sole power to vote or direct the vote of 0 shares, shared power to vote or direct the vote of 2,200,000 shares, sole power to dispose or direct the disposition of 0 shares and shared power to dispose or direct the disposition of 2,200,000 shares. The foregoing information is based solely on the Schedule 13G filed by BCG on February 14, 2024 under the Exchange Act. The address for BCG is 767 Fifth Avenue, 49th Floor, New York, NY 10153. (8)
EARNEST Partners, LLC, in its capacity as investment advisor, may be deemed to beneficially own 2,815,127 shares of the Company held of record by clients of EARNEST Partners, LLC. EARNEST Partners, LLC has sole power to vote or direct the vote of 2,242,267 shares, shared power to vote or direct the vote of 0 shares, sole power to dispose or direct the disposition of 2,815,127 shares and shared power to dispose or direct the disposition of 0 shares. The foregoing information is based solely on the Schedule 13G filed by EARNEST Partners, LLC on February 13, 2024 under the Exchange Act. The address for EARNEST Partners, LLC is 1180 Peachtree Street NE, Suite 2300, Atlanta, GA 30309. (9)
Mr. Overton is a Named Executive Officer and a director of the Company. Includes 73,000216,140 restricted shares held directly that are not yet vested and 2,866,4062,951,061 shares held by the David M. Overton Family Trust of which Mr. Overton is trustee. Excludes 60,211 shares held by Mr. Overton’s spouse as trustee for the Sheila A. Overton Living Trust and 183,950 shares held by the David M. Overton 2011 Gift Trust U/T/AUTA dated 11/23/2011 (the “Gift Trust”) for the benefit of Mr. Overton’s son, of which Mr. Overton’s spouse is trustee. These shares are excluded as Mr. Overton disclaims beneficial ownership of the shares owned by his spouse and by the Gift Trust. Also includes 492,360626,320 shares Mr. Overton has a right to acquire upon the exercise of options exercisable within 60 days of March 15, 2021.2024. For additional information regarding Mr. Overton’s equity grants, refer to the section entitled “Outstanding Equity Awards” in this Proxy Statement. (9)
(10)
Ms. Ames is a director of the Company. All shares are held directly.by the Ames Living Trust of which Ms. Ames is a trustee. (10)
(11)
Mr. Cappello is a director of the Company. Includes 4,91613,140 shares held by Maricopa Capital LLC of which Mr. Cappello is the sole shareholder. Also includes 178 shares held by Mr. Cappello’s children for which his spouse acts as custodian. (11)
(12)
Mr. GinsbergMs. Collins is a director of the Company. All shares are held directly.
(12)
(13)
Mr. Adam S. Gordon is a director of the Company. All shares are held directly. (14)
Mr. Kransdorf is a director of the Company. All shares are held directly. (13)
(15)
Ms. Meyer is a director of the Company. All shares are held directly. (16)
Mr. Mindel is a director of the Company. All shares are held by the Mindel Living Trust U/A dated 10/05/1992 of which Mr. Mindel is trustee. (14)
Ms. Meyer is a director of the Company. All shares are held directly.
(15)
(17)
Mr. Pittaway is a director of the Company. All shares are held directly. (16)
(18)
Mr. Simon is a director of the Company. All shares are held by the Herbert Simon Revocable Trust of which Mr. Simon is trustee.
(17)
Mr.David Gordon is a Named Executive Officer. Includes 17,85044,674 restricted shares held directly 25,755that are not yet vested, 29,419 shares held directly and 132,640102,430 shares Mr. Gordon has a right to acquire
upon exercise of options exercisable within 60 days of March 15, 2021.2024. For additional information regarding Mr. Gordon’s equity grants, refer to the section entitled “Outstanding Equity Awards” in this Proxy Statement.
(18)
(19)
Mr. Clark is a Named Executive Officer. Includes 13,89015,408 restricted shares held directly 14,370that are not yet vested, 32,960 shares held directly and 86,632156,784 shares Mr. Clark has a right to acquire upon exercise of options exercisable within 60 days of March 15, 2021.2024. For additional information regarding Mr. Clark’s equity grants, refer to the section entitled “Outstanding Equity Awards” in this Proxy Statement.
(19)
(20)
Ms. May is a Named Executive Officer. Includes 13,65027,334 restricted shares held directly. Also includes 13,920directly that are not yet vested, 13,309 shares held directly and 35,840 shares Ms. May has a right to acquire upon the exercise of options exercisable within 60 days of March 15, 2021.2024. For additional information regarding Ms. May’s equity grants, refer to the section entitled “Outstanding Equity Awards” in this Proxy Statement. (20)
(21)
Mr. Carango is a Named Executive Officer. Includes 9,60019,770 restricted shares held directly and 19,799that are not yet vested, 30,242 shares held directly. Also includes 25,660directly and 49,700 shares Mr. Carango has a right to acquire upon the exercise of options exercisable within 60 days of March 15, 2021.2024. For additional information regarding Mr. Carango’s equity grants, refer to the section entitled “Outstanding Equity Awards” in this Proxy Statement. (21)
(22)
Includes 751,212971,074 shares our executive officers and directors have a right to acquire upon the exercise of options exercisable within 60 days of March 15, 2021.2024. Equity Compensation Plan Information The following table sets forth information concerning the shares of common stock that may be issued under all of our equity compensation plans as of December 29, 2020,January 2, 2024, the last day of fiscal 2020.2023. | | | Number of Securities
to be Issued Upon
Exercise of
Outstanding
Options,
Warrants and Rights | | Weighted Average
Exercise Price of
Outstanding
Options ($) | | Number of Securities
Remaining Available
for Future Issuance
Under Equity
Compensation Plans(1) | | | Number of Securities
to be Issued Upon
Exercise of
Outstanding
Options, Warrants and Rights | | Weighted Average
Exercise Price of
Outstanding
Options ($) | | Number of Securities
Remaining Available
for Future Issuance
Under Equity
Compensation Plans(1) | | | Equity compensation plans approved by stockholders | | | | 1,461,972(2) | | | | $ | 46.77(3) | | | | | 7,442,461 | | | | | | 1,200,250(2) | | | | | 47.11 | | | | | 3,140,982 | | | Equity compensation plans not approved by
stockholders | | | | — | | | | | — | | | | | — | | | | | | — | | | | | — | | | | | — | | | | Total | | | | 1,461,972 | | | | $ | 46.77 | | | | | 7,442,461 | | | | | | 1,200,250 | | | | | 47.11 | | | | | 3,140,982 | | |
(1)
Shares may be issued upon exercise of options or stock appreciation rights,SARs, as awards of restricted shares, upon vesting of restricted stock units, awards of deferred shares or as payment for performance shares or performance units. (2)
Amounts includes 1,121,237include 1,199,170 outstanding options and 340,7351,080 outstanding RSUs (with performance-based RSUs included at the maximum level).
(3)
RSUs. The weighted-average exercise price is calculated based solely on the exercise prices of the outstanding options and does not reflect shares that will be issued upon the vesting of outstanding RSUs, which have no exercise price. Delinquent Section 16(a) Reports Under Section 16(a) of the Exchange Act, our directors, executive officers and any persons holding 10% or more of our common stock (“Section 16 reporting persons”) are required to report their ownership of common stock and any changes in that ownership to the SEC. Specific due dates for these reports have been established by the SEC, and we are required to report in this Proxy Statement any failure to file on a timely basis by such persons. To our knowledge, based solely on our review of the copies of such reports furnished to us and written representations that no other reports were required, all Section 16 reporting persons complied with all Section 16(a) filing requirements during the fiscal year ended December 29, 2020,January 2, 2024, except that the Form 4s for the restricted stock units automatically granted to each of Mr. Cappello, Ms. Collins, Mr. Gordon, Ms. Meyer and Mr. Pittaway immediately following the 2023 annual shareholder meeting under our director compensation program were filed late on July 27, 2023.
Voting; Quorum; Abstentions and Broker Non-Votes As of the close of business on March 15, 2024, 51,036,695 shares of our common stock were outstanding, and there were no outstanding shares of any other class of stock. Each holder of common stock as of the Record Date is entitled to one vote for each share of common stock held of record. Only stockholders of record at the close of business on the Record Date will be entitled to notice of and to vote at the Annual Meeting or any postponement or adjournment thereof. Stockholders do not have cumulative voting rights and will not be entitled to appraisal or similar dissenters’ rights in connection with the proposals to be voted on at the Annual Meeting. The representation of a majority of the shares entitled to vote at the Annual Meeting, present in person (including via the virtual platform) or represented by proxy will represent a quorum for the transaction which wasof business. Shares of common stock represented by a properly signed and returned proxy will be treated as present at the Annual Meeting for purposes of determining a quorum, regardless of whether the proxy is marked as casting a vote or abstaining or constitutes a broker non-vote. Brokers or other nominees may not timely filedvote on non-routine matters without instructions from beneficial owners. As a result, if you are a beneficial owner and do not instruct your broker or other nominee how to vote on a Formnon-routine matter, your broker or other nominee will not vote for you. A “broker non-vote” occurs when a broker or other nominee does not receive voting instructions from the beneficial owner and is not otherwise permitted to vote the underlying shares on a given matter. For Proposal 1, our Bylaws provide that, in the election of directors, nominees shall be elected by a plurality of the votes cast by the holders of shares entitled to vote thereon, present in person (including via the virtual platform) or represented by proxy at the Annual Meeting; provided, that each nominee has agreed that if elected, he or she will submit an irrevocable resignation for consideration by the Board that will be effective upon (i) such director’s failure to receive a majority of votes cast in any uncontested election at which he or she is subject to reelection, and (ii) acceptance of that resignation by the Board. An uncontested election (such as the election held at this Annual Meeting) means that the number of nominees for director does not exceed the number of directors to be elected at that meeting. A majority of votes cast means that the number of shares cast “FOR” a nominee’s election exceeds the number of votes cast “AGAINST” that nominee. Abstentions are not considered votes cast and, therefore, will have no effect on the outcome of the vote. The election of directors is not a routine matter under applicable rules. As a result, there may be broker non-votes on Proposal 1. However, broker non-votes are not considered votes cast and, therefore, will have no effect on the outcome of the vote. Proposal 2 requires the affirmative vote of the majority of the outstanding shares. A majority of the outstanding shares means that the number of shares cast “FOR” Proposal 2 must equal a majority of all the shares outstanding. Abstentions will have the same effect as votes “AGAINST” the proposal. The adoption of the Restated Certificate of Incorporation is not a routine matter under applicable rules. As a result, there may be broker non-votes on Proposal 2. Broker non-votes will have the same effect as votes “AGAINST” the proposal. Proposals 3 and 4 require the approval of a majority of the outstanding shares of stock present in person (including via the virtual platform) or represented by proxy at the Annual Meeting and entitled to vote on such proposal. Abstentions as to these proposals will count as shares present and entitled to vote on the proposals and, accordingly, will count as votes “AGAINST” the proposal. The ratification of the selection of KPMG LLP as the Company’s independent registered public accounting firm for Ms. Cheryl Slomann.fiscal year 2024 (Proposal 3) is considered a routine matter under applicable rules. A broker or other nominee may generally vote on routine matters, and therefore no broker non-votes are expected on Proposal 3. Proposals 4 is not a routine matter under applicable rules. As a result, there may be broker non-votes on Proposal 4. However, broker non-votes are not considered shares entitled to vote on this proposal and will have no effect on the outcome of the vote on this proposal. How to Vote at the Annual Meeting If you are the record holder of your stock as of the Record Date, you may submit a proxy by executing and returning the enclosed proxy card(s) in the provided postage-paid envelope. You may also attend the Annual Meeting virtually and vote your shares at www.virtualshareholdermeeting.com/CAKE2024 during
the Annual Meeting. You will need the 16-digit control number which appears on your proxy card (printed in the box and marked by the arrow) and the instructions that accompanied your proxy materials. If a bank, broker or other nominee is the record holder of your stock on the Record Date, you will be able to vote by following the instructions on the voting instruction form or notice that you receive from your bank, broker or other nominee. If a bank, broker or other nominee is the record holder of your stock on the Record Date you must obtain and submit a legal proxy from your broker or other nominee as the record holder and a letter from your broker or other nominee showing that you were the beneficial owner of your shares on the Record Date. Proxies Proxies delivered pursuant to this solicitation are revocable prior to their exercise and at the stockholder’s option by (i) attending and voting at the Annual Meeting (which will be held virtually), as described above (although attending the Annual Meeting via the Internet itself will not revoke a proxy), or (ii) filing a written notice with Scarlett May, our Secretary, revoking the proxy, or (iii) submitting another duly executed proxy bearing a later date. Unless previously revoked, all proxies representing shares entitled to vote delivered pursuant to this solicitation will be voted at the Annual Meeting by the named attorneys-in-fact and agents, to the extent authorized, in accordance with the directions contained therein. If no directions are given, the shares represented by such proxies will be voted: •
FOR the election of the Board’s nominees for director: Mses. Edie A. Ames, Khanh Collins and Janice L. Meyer and Messrs. Alexander L. Cappello, Adam S. Gordon, Jerome I. Kransdorf, Laurence B. Mindel, David Overton and David B. Pittaway; •
FOR the approval and adoption of the Restated Certificate of Incorporation of The Cheesecake Factory Incorporated to provide for the exculpation of officers as permitted by the DGCL; •
FOR the ratification of the selection of KPMG LLP as our independent registered public accounting firm for fiscal year 2024, ending December 31, 2024; and •
FOR approval of, on a non-binding, advisory basis, the compensation of the Company’s Named Executive Officers as disclosed pursuant to the compensation disclosure rules of the SEC (“say-on-pay vote”).The named proxy holders may vote in their discretion upon such other matters as may properly come before the Annual Meeting, including any motion made for adjournment or postponement (including for purposes of soliciting additional votes). How do I attend the Annual Meeting? The live audio webcast of the Annual Meeting will begin promptly at 10:00 a.m. Pacific Daylight Time on May 30, 2024. Online access to the audio webcast will open approximately 15 minutes prior to the start of the Annual Meeting to allow time for our stockholders to log in and test their devices’ audio system. We encourage our stockholders to access the meeting in advance of the designated start time. If you encounter any difficulties accessing the webcast, please call the technical support number that will be posted on the Virtual Shareholder Meeting log in page. To attend the Annual Meeting, stockholders will need to log in to www.virtualshareholdermeeting.com/CAKE2024 using the 16-digit control number on the proxy card or voting instruction form. Can I submit questions prior to or at the Annual Meeting? Stockholders may submit questions in writing in advance or during the Annual Meeting at the following website: www.virtualshareholdermeeting.com/CAKE2024. Stockholders will need the 16-digit control number which appears on their proxy card (printed in the box and marked by the arrow) and the instructions that accompanied their proxy materials. As part of the Annual Meeting, we will hold a live Q&A session, during which we will answer questions pertinent to the Company and the meeting matters, as time permits.
Solicitation We pay for the cost of preparing, assembling and mailing the Notice of Internet Availability, the Notice of Annual Meeting and Proxy Statement and the cost of this solicitation. Our directors, officers and other staff members may solicit proxies, without additional remuneration, in person or by telephone, facsimile or email transmission. Banks, brokerage houses and other custodians, nominees or fiduciaries will be asked to forward soliciting material to their principals and to obtain authorization for the execution of proxies, and we will reimburse them for their reasonable out-of-pocket expenses incurred in that regard. Stockholder Proposals for the 20222025 Annual Meeting of Stockholders Any stockholder proposal intended to be included in our proxy statement under SEC Rule 14a-8 for the 20222025 annual meeting of stockholders must be received by us for inclusion in the proxy statement and form of proxy for that meeting on or before December 17, 2021.20, 2024.
For a stockholder proposal to be presented at an annual meeting (other than a proposal intended to be included in our proxy statement under SEC Rule 14a-8), the stockholder must comply with the applicable provisions of our Bylaws. In general, these provisions require that notice must be made by a stockholder of record on the date of giving notice and the record date for the annual meeting. In general, our Bylaws require that the notice with respect to the 20222025 annual meeting must be received (i) not earlier than January 27, 202230, 2025 and (ii) not later than February 26, 2022;March 1, 2025; provided that, in the event the 20222025 annual meeting is called for a date that is not within 30 days before or after the anniversary date of the 20212024 annual meeting, the notice must be received not later than the close of business on the tenth day following the date on which notice of the date of the 20222025 annual meeting was mailed or public disclosure of the date of the 20222025 annual meeting was made, whichever first occurs, or no less than 90 days or more than 120 days prior to the 20222025 annual meeting. The foregoing summary does not purport to be a complete description of all of the provisions of our Bylaws pertaining to stockholder proposals. Our Bylaws also provide procedures for stockholder nominations of directors (see the section entitled “Director Nominations Process” in this Proxy Statement). Stockholders may obtain, without charge, a copy of our Bylaws upon written request to Ms. May, our Secretary, at our principal executive offices. Our Bylaws are also available on our website. For information on where to access this document, please see the section in this Proxy Statement entitled “Corporate Governance Principles and Guidelines; Corporate Governance Materials Available on Our Website.” In addition to satisfying the foregoing requirements under our Bylaws, to comply with the universal proxy rules, stockholders who intend to solicit proxies in support of director nominees other than the Company’s nominee must provide notice that sets forth the information required by Rule 14a-19 under the Exchange Act no later than March 31, 2025. We intend to file a proxy statement and WHITE proxy card with the SEC in connection with our solicitation of proxies for our 2025 annual meeting. Stockholders may obtain our proxy statement (and any amendment and supplements thereto) and other documents as and when filed by the Company with the SEC without charge from the SEC’s website at www.sec.gov. Availability of Annual Report and Form 10-K Our Annual Report on Form 10-K for the fiscal year ended December 29, 2020January 2, 2024 has been filed with the SEC and it, together with our Annual Report to Stockholders, is available on our website listed in the following paragraph. The Annual Report to Stockholders is not incorporated into this Proxy Statement and is not proxy soliciting material. We make available on our website at investors.thecheesecakefactory.com our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as soon as reasonably practicable after such documents are electronically filed with or furnished to the SEC. These reports can be found on our website at investors.thecheesecakefactory.com, by clicking on the link for “Financials.” We will provide to any stockholder without charge, upon the written request of that stockholder, a copy of our Annual Report on Form 10-K (without exhibits), including financial statements and the financial statement schedules, for the fiscal year ended December 29, 2020.January 2, 2024. Such requests should be addressed to: Stacy Feit
Vice President, Investor Relations
The Cheesecake Factory Incorporated
26901 Malibu Hills Road
Calabasas Hills, CA 91301
Etienne Marcus
Vice President, Finance and Investor Relations
The Cheesecake Factory Incorporated
26901 Malibu Hills Road
Calabasas Hills, CA 91301 Adjournment of the 20212024 Annual Meeting of Stockholders In the event there are not sufficient votes to approve any proposal contained in this Proxy Statement at the time of the Annual Meeting, the Annual Meeting may be adjourned in order to permit further solicitation of proxies from holders of our capital stock. Proxies solicited by our Board grant discretionary authority to vote for any adjournment, if necessary. If it is necessary to adjourn the Annual Meeting, and the adjournment is for a period of no more than 30 days and no new record date is fixed for the adjourned meeting, no notice of the time and place of the adjourned meeting is required to be given to the stockholders other than an announcement of the time and place at the Annual Meeting. The chairman of the Annual Meeting or a majority of the shares represented and voting at the Annual Meeting is required to approve the adjournment, regardless of whether there is a quorum present at that meeting. Other Matters We currently know of no other matters to be submitted at the Annual Meeting. If any other matters properly come before the meeting, the persons named in the form of proxy intend to vote the shares they represent as the Board may recommend. Discretionary authority with respect to such other matters is granted by the execution of the proxy. By Order of the Board, Scarlett May
Secretary
Calabasas Hills, California
, 20212024
| | | YOUR VOTE IS VERY IMPORTANT | | | | | | Whether or not you plan to attend the Annual Meeting of Stockholders, and to ensure that a quorum is present, you are urged to vote your proxy online, by telephone or by returning the proxy card by mail. If you are able to attend the virtual Annual Meeting and you wish to vote your shares during the meeting, the proxy is revocable. However, if you hold your shares through an account with a brokerage firm, bank or other nominee, you may not vote these shares online at the virtual Annual Meeting unless you obtain a “legal proxy” from the organization that holds your shares, giving you the right to vote the shares at the virtual Annual Meeting. | | | | | | Voting online or by telephone is fast, convenient and your vote is immediately confirmed and posted. To vote online or by telephone, first read the accompanying Proxy Statement and then follow the instructions below: | | | | | | VOTE ONLINE | | | VOTE BY TELEPHONE | | | | | | 1. Go to www.proxyvote.com. | | | 1. Using a touch-tone telephone, call 1-800-690-6903. | | | | | | 2. Follow the step-by-step instructions provided. | | | 2. Follow the step-by-step instructions provided. | | |
| | | IF YOU PLAN TO ATTEND THE VIRTUAL ANNUAL MEETING | | | | | | We will be hosting our Annual Meeting via live webcast only. Any stockholder can attend the Annual Meeting live online at www.virtualshareholdermeeting.com/CAKE2021.CAKE2024. The webcast will start at 10:00 a.m., Pacific Daylight Time, on Thursday, May 27, 2021.30, 2024. Stockholders may vote and ask questions while attending the Annual Meeting online. In order to be able to attend the Annual Meeting, you will need the 16-digit control number, which appears on your proxy card (printed in the box and marked by the arrow) and the instructions that accompanied your proxy materials. Instructions on how to participate in the Annual Meeting are also posted online at www.proxyvote.com. | | |
Please do not return your Proxy Card if you voted by telephone or online.
APPENDIX A—RECONCILIATION OF GAAP TO NON-GAAP FINANCIAL MEASURES Following is a reconciliation of loss from operations, net (loss)/income and diluted net (loss)/income per common share to the corresponding adjusted measures (in thousands, except per share data): | | | | Fiscal Year
2020 | | | Loss from operations | | | | $ | (347,437) | | | | COVID-19 related costs | | | | | 22,963 | | | | Impairment of assets and lease terminations | | | | | 219,333 | | | | Other | | | | | (1,173) | | | | Adjusted income from operations | | | | $ | (106,314) | | | | Loss from operations | | | | $ | (347,437) | | | | Depreciation and amortization expenses | | | | | 91,415 | | | | Rent | | | | | 188,708 | | | | EBITDAR | | | | | (67,314) | | | | COVID-19 related costs | | | | | 22,963 | | | | Impairment of assets and lease terminations | | | | | 219,333 | | | | Equity compensation expenses | | | | | 21,349 | | | | Other | | | | | (9,553) | | | | Adjusted EBITDAR | | | | $ | 186,778 | | |
| | | | Fiscal Year | | | | | | 2020 | | | 2019 | | | 2018 | | | Net (loss)/income available to common stockholders | | | | $ | (277,107) | | | | | $ | 127,293 | | | | | $ | 99,035 | | | | Dividends on Series A preferred stock | | | | | 13,485 | | | | | | — | | | | | | — | | | | Direct and incremental Series A preferred stock issuance costs | | | | | 10,257 | | | | | | — | | | | | | — | | | | COVID-19 related costs | | | | | 22,963 | | | | | | — | | | | | | — | | | | Impairment of assets and lease termination expenses | | | | | 219,333 | | | | | | 18,247 | | | | | | 17,861 | | | | Acquisition-related costs | | | | | 2,699 | | | | | | 5,270 | | | | | | — | | | | Acquisition-related contingent consideration, compensation and amortization (benefit)/expenses | | | | | (3,872) | | | | | | 1,033 | | | | | | — | | | | (Gain)/loss on investments in unconsolidated affiliates | | | | | — | | | | | | (39,233) | | | | | | 4,754 | | | | Tax effect of adjustments | | | | | (62,692) | | | | | | 3,818 | | | | | | (5,880) | | | | Adjusted net (loss)/income | | | | $ | (74,934) | | | | | $ | 116,428 | | | | | $ | 115,770 | | | | Diluted net (loss)/income per common share | | | | $ | (6.32) | | | | | $ | 2.86 | | | | | $ | 2.14 | | | | Dividends on Series A preferred stock | | | | | 0.27 | | | | | | — | | | | | | — | | | | Direct and incremental Series A preferred stock issuance costs | | | | | 0.20 | | | | | | — | | | | | | — | | | Assumed impact of potential conversion of Series A preferred stock
into common stock | | | | | 0.80 | | | | | | — | | | | | | — | | | | COVID-19 related costs | | | | | 0.46 | | | | | | — | | | | | | — | | | | Impairment of assets and lease termination expenses | | | | | 4.36 | | | | | | 0.41 | | | | | | 0.39 | | | | Acquisition-related costs | | | | | 0.05 | | | | | | 0.12 | | | | | | — | | | | Acquisition-related contingent consideration, compensation and amortization (benefit)/expenses | | | | | (0.08) | | | | | | 0.02 | | | | | | — | | | | (Gain)/loss on investments in unconsolidated affiliates | | | | | — | | | | | | (0.88) | | | | | | 0.10 | | | | Tax effect of adjustments | | | | | (1.25) | | | | | | 0.09 | | | | | | (0.13) | | | Adjusted net (loss)/income per share(1) | | | | $ | (1.49) | | | | | $ | 2.61 | | | | | $ | 2.51 | | |
| | | | Fiscal Year
2023 | | | Income from operations | | | | $ | 108,566 | | | | Depreciation and amortization expenses | | | | | 93,136 | | | | Rent | | | | | 232,963 | | | | EBITDAR | | | | | 434,665 | | | | Impairment of assets and lease terminations | | | | | 29,464 | | | | Equity compensation expenses | | | | | 25,781 | | | | Other | | | | | 7,767 | | | | Adjusted EBITDAR | | | | $ | 497,675 | | |
| | | | Fiscal Year | | | | | | 2023 | | | 2022 | | | Net income available to common stockholders | | | | $ | 101,351 | | | | | $ | 43,123 | | | | Impairment of assets and lease termination expenses | | | | | 29,464 | | | | | | 31,387 | | | | Acquisition-related contingent consideration, compensation and amortization expense | | | | | 11,686 | | | | | | 13,368 | | | Tax effect of adjustments(1) | | | | | (10,699) | | | | | | (11,637) | | | | Adjusted net income | | | | $ | 131,802 | | | | | $ | 76,241 | | | | Diluted net income per common share | | | | $ | 2.07 | | | | | $ | 0.86 | | | | Impairment of assets and lease termination expenses | | | | | 0.61 | | | | | | 0.62 | | | | Acquisition-related contingent consideration, compensation and amortization expense | | | | | 0.24 | | | | | | 0.27 | | | Tax effect of adjustments(1) | | | | | (0.22) | | | | | | (0.23) | | | Adjusted net income per share(2) | | | | $ | 2.69 | | | | | $ | 1.51 | | |
(1)
Based on the federal statutory rate and an estimated blended state tax rate, the tax effect on all adjustments assumed a 26% tax rate. (2)
Adjusted diluted net (loss)/income per share may not add due to rounding.
Adjusted EBITDAR, adjusted net (loss)/income and adjusted diluted net (loss)/income per share are supplemental measures of our performance that are not required by or presented in accordance with GAAP. These non-GAAP measures may not be comparable to similarly titledsimilarly-titled measures used by other companies and should not be considered in isolation or as a substitute for measures of performance prepared in accordance with GAAP. We calculate these non-GAAP measures by eliminating from income from operation, net (loss)/income and diluted net (loss)/income per common share the impact of items we do not consider indicative of our ongoing operations. To reflect the potential impact of the conversion of our Series A preferred stock into common stock, we exclude the preferred dividend and direct and incremental preferred stock issuance costs, and assume all shares of Series A preferred stock convert to common stock. We use these non-GAAP financial measures for financial and operational decision-making and as a means to evaluate period-to-period comparisons. Our inclusion of these adjusted measures should not be construed as an indication that our future results will be unaffected by unusual or infrequent items. In the future, we may incur expenses or generate income similar to the adjusted items.
APPENDIX B—RESTATED CERTIFICATE OF INCORPORATION RESTATED
CERTIFICATE OF INCORPORATION
OF
THE CHEESECAKE FACTORY INCORPORATED Effective August 6, 2018
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware) THE CHEESECAKE FACTORY INCORPORATED, a corporation organized and existing under the Delaware General Corporation Law (the “Corporation”), DOES HEREBY CERTIFY: The name of the Corporation is The Cheesecake Factory Incorporated. The date of filing of its original certificate of incorporation Certificate of Incorporation with the Secretary of State of the State of Delaware was February 13, 1992. This Restated Certificate of Incorporation restates and integrates the certificate of incorporation of the Corporation as heretofore amended or supplemented. There is no discrepancy between the provisions of this Restated Certificate of Incorporation and the provisions of the certificate of incorporation of the Corporation as heretofore amended or supplemented. This Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Sections 242 and Section 245 of the Delaware General Corporation Law of the State of Delaware. The effective date of this Restated Certificate of Incorporation shall be the date it is filed with the Secretary of State of the State of Delaware. The Certificate of Incorporation is hereby amended and restated in its entirety to read as follows: FIRST: The name of the Corporation is THE CHEESECAKE FACTORY INCORPORATED. SECOND: The registered office of the Corporation in the State of Delaware is Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808, County of New Castle. The name of the registered agent of the Corporation at that address is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The aggregate number of shares of all classes of capital stock which the corporation shall have authority to issue is 255,000,000 (two hundred fifty-five million) shares, five million (5,000,000) shares of which shall be Preferred Stock, par value $.01 per share, issuable in one or more series, and two hundred fifty million (250,000,000) shares of which shall be Common Stock, par value $.01 per share. The shares of Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby authorized to fix by resolution or resolutions the voting rights, designations, powers, preferences and the relative, participating, optional or other rights, if any, and the qualifications, limitations or restrictions thereof of any wholly unissued shares of Preferred Stock; and to fix the number of shares constituting such series and to increase or decrease the number of shares of any such series but not below the number of shares thereof then outstanding. FIFTH: The Board of Directors shall consist of not less than five (5) nor more than thirteen (13) directors, the precise number thereof to be fixed from time to time by vote of the Board of Directors; provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office. Subject to the next sentence of this paragraph, the Board of Directors is and shall remain divided into three classes, designated Class I, Class II and Class III, with the directors in each class elected to terms expiring at the third annual meeting following their election. Immediately prior to the election of directors at the third annual meeting of stockholders held after the annual meeting held in calendar year 2008 (such third
annual meeting, the “2011 Annual Meeting”), the division of the Board of Directors into three classes shall terminate, and at and after the 2011 Annual Meeting each director shall be elected for a term expiring at the next annual meeting following such director’s election. Unless the stockholders are permitted to fill a vacancy pursuant to a resolution adopted by the Board of Directors, (i) any vacancy on the Board of Directors that results from an increase in the number of directors shall be filled by a majority of the directors then in office even if less than a quorum, or by a sole remaining director, and (ii) any other vacancy occurring in the Board of Directors shall be filled by a majority of the directors then in office, even if less than a quorum, or by a sole remaining director. Any director appointed to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his predecessor; provided, however, that at and after the 2011 Annual Meeting, a director appointed to fill such a vacancy shall serve until the next annual meeting of stockholders held after such appointment. Notwithstanding the foregoing or anything in Article SIXTH to the contrary, whenever the holders of any one or more classes or series of Preferred Stock issued by the Corporation, if any, shall have the right, voting separately by class or series, to elect directors at an annual or special meeting of stockholders, the election, term of office, removal, filling of vacancies and other features of such directorships shall be governed by the terms of this Certificate of Incorporation applicable thereto, and such directors so elected shall not be divided into classes pursuant to this Article FIFTH unless expressly provided by such terms. SIXTH: Any action required or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders. Special meetings of stockholders of the Corporation may be called only by the Chairman of the Board, if there be one, or the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board of Directors for adoption). Prior to the 2011 Annual Meeting, directors of the Corporation may be removed by stockholders only for cause and only by the affirmative vote of the holders of a majority of the voting power of the capital stock of the Corporation outstanding and entitled to vote thereon. At and after the 2011 Annual Meeting, a director may be removed without cause by the affirmative vote of the holders of a majority of the voting power of the capital stock of the Corporation outstanding and entitled to vote thereon. SEVENTH: All the powers of the Corporation, insofar as the same may be lawfully vested by this Certificate of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors. In furtherance and not in limitation of such powers, the Board of Directors shall have the power to make, adopt, alter, amend and repeal from time to time bylaws of the Corporation, subject to the right of the stockholders entitled to vote with respect thereto to adopt, alter, amend and repeal bylaws made by the Board of Directors; provided, however, that bylaws shall not be adopted, altered, amended or repealed by the stockholders of the Corporation except by the vote of the holders of not less than eighty percent (80%) of the outstanding shares of stock entitled to vote upon the election of directors. EIGHTH: 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 Corporation shall indemnify and advance indemnification expenses on behalf of all directors and officers of the Corporation. The Corporation shall indemnify such other persons as may be required by statute or by the bylaws of the Corporation. NINTH: To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. No amendment to or repeal of this Article NINTH shall apply to or have any effect on the liability or alleged liability of a director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. TENTH: The Corporation reserves the right to amend, alter or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed herein or by statute, and all rights and powers conferred herein are subject to this reserved power; provided, however, that subject to the powers and rights provided for herein with respect to Preferred Stock issued by the Corporation, if any, but notwithstanding anything else contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least eighty percent (80%) of the combined voting power of all of the then outstanding
shares of capital stock entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter, repeal, or adopt any provision inconsistent with this Article TENTH or Articles SIXTH, SEVENTH, EIGHTH or NINTH of this Certificate of Incorporation or to add an article or provision imposing cumulative voting in the election of directors. ELEVENTH: The Corporation is to have perpetual existence. TWELFTH: Election of directors of the Corporation need not be by written ballot except and to the extent provided in the bylaws of the Corporation. THIRTEENTH: The Board of Directors shall have the power to hold its meetings within or outside the State of Delaware, at such place as from time to time may be designated by the bylaws of the Corporation or by resolution of the Board of Directors. This Restated Certificate of Incorporation is to become effective as of 8:31 a.m. Eastern time on Monday, August 6, 2018. FOURTEENTH: To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, an officer of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as an officer. No amendment to or repeal of this Article FOURTEENTH shall apply to or have any effect on the liability or alleged liability of an officer of the Corporation for or with respect to any acts or omissions of such officer occurring prior to such amendment or repeal. * * * IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate of Incorporation be signed as of , 2024.which only restates and integrates and does not further amend the provisions of the Certificate of Incorporation of this Corporation as amended or supplemented heretofore, which has been duly adopted in accordance with Section 245 of the Delaware General Corporation Law, has been executed by its duly authorized officer as of August 2, 2018to THE CHEESECAKE FACTORY INCORPORATED By:
Name: Title:
![[MISSING IMAGE: px_24cakeproxy01pg01-bw.jpg]](https://capedge.com/proxy/PRE 14A/0001104659-24-041237/px_24cakeproxy01pg01-bw.jpg) THE CHEESECAKE FACTORY INCORPORATEDATTN:ETIENNE MARCUS26901 MALIBU HILLS ROADCALABASAS HILLS, CA 91301 Investor Address Line 1Investor Address Line 2Investor Address Line 3Investor Address Line 4Investor Address Line 5John Sample1234 ANYWHERE STREETANY CITY, ON A1A 1A1 SCAN TOVIEW MATERIALS & VOTE VOTE BY INTERNET - www.proxyvote.com or scan the QR Barcode aboveUse the Internet to transmit your voting instructions and for electronic delivery ofinformation. Vote by 11:59 P.M. ET on 05/29/2024. Have your proxy card in hand whenyou access the web site and follow the instructions to obtain your records and to createan electronic voting instruction form.During The Meeting - Go to www.virtualshareholdermeeting.com/CAKE2024VOTE BY PHONE - 1-800-690-6903Use any touch-tone telephone to transmit your voting instructions. Vote by 11:59 P.M. ETon 05/29/2024. Have your proxy card in hand when you call and then follow theinstructions.VOTE BY MAILMark, sign and date your proxy card and return it in the postage-paid envelope we haveprovided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood,NY 11717. NAMETHE COMPANY NAME INC. - COMMONTHE COMPANY NAME INC. - CLASS ATHE COMPANY NAME INC. - CLASS BTHE COMPANY NAME INC. - CLASS CTHE COMPANY NAME INC. - CLASS DTHE COMPANY NAME INC. - CLASS ETHE COMPANY NAME INC. - CLASS FTHE COMPANY NAME INC. - 401 K 123,456,789,012.12345123,456,789,012.12345123,456,789,012.12345123,456,789,012.12345123,456,789,012.12345123,456,789,012.12345123,456,789,012.12345123,456,789,012.12345→1 OF2 PAGECONTROL #SHARES KEEP THIS PORTION FOR YOUR RECORDSTO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.DETACH AND RETURN THIS PORTION ONLY 0 0 00 0 00 0 00 0 00 0 00 0 00 0 00 0 00 0 0The Board of Directors recommends you vote FORthe following:1. Election of DirectorsNominees For Against Abstain1A David Overton1B Edie A. Ames1C Alexander L. Cappello1D Khanh Collins1E Adam S. Gordon1F Jerome I. Kransdorf1G Janice L. Meyer1H Laurence B. Mindel1I David B. Pittaway 0 0 00 0 00 0 0The Board of Directors recommends you vote FORproposals 2, 3 and 4. For Against Abstain2. To approve and adopt the Restated Certificateof Incorporation of the Company to provide forthe exculpation of officers as permitted by theDelaware General Corporation Law.3. To ratify the selection of KPMG LLP as theCompany's independent registered publicaccounting firm for fiscal year 2024, endingDecember 31, 2024.4 To approve, on a non-binding, advisory basis,the compensation of the Company's NamedExecutive Officers as disclosed pursuant to thecompensation disclosure rules of the Securitiesand Exchange Commission.NOTE: In addition, to transact such other businessas may properly come before the Annual Meeting orany adjournment or postponement thereof. Please sign exactly as your name(s) appear(s) on this Proxy. When shares are held jointly, each holder should sign. Whensigning as executor, administrator, attorney, trustee or guardian, please give full title as such. If signer is a corporationor partnership, please sign full corporate or partnership name by authorized person. JOB #SHARESCUSIP #SEQUENCE #Signature [PLEASE SIGN WITHIN BOX] Date Signature (Joint Owners) Dateor partnership, please sign full corporate or partnership name by authorized person.
![[MISSING IMAGE: px_24cakeproxy01pg02-4c.jpg]](https://capedge.com/proxy/PRE 14A/0001104659-24-041237/px_24cakeproxy01pg02-4c.jpg) http://www.virtualshareholdermeeting.com/CAKE2021ImportantCAKE2024Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Annual Report,Form 10-K, Notice & Proxy Statement is/ are availableareavailable at www.proxyvote.comTHEwww.proxyvote.com THE CHEESECAKE FACTORY INCORPORATEDhttp://www.virtualshareholdermeeting.com/CAKE2021SolicitedCAKE2024Solicited on behalf of the Board of Directors of THE CHEESECAKE FACTORY INCORPORATED (“Company”("Company") for use at its virtual Annual Meeting of Stockholders (“Meeting”("Meeting") to be heldbeheld on May 27, 202130, 2024, at 10:00 A.M. Pacific Daylight Time. Stockholders can attend the Meeting via the internet at http://www.virtualshareholdermeeting.com/CAKE2021CAKE2024 and following theinstructions that accompanied their proxy materials.The undersigned hereby appoints Scarlett May or Matthew Clark, or either one of them, as the “Named Proxies”"Named Proxies" with the full power of substitution, to vote all shares of common stock of theCompany held of record by the undersigned on March 31, 2021April 1, 2024, at the Meeting or at any adjournment or postponement thereof, on the proposals set forth on the reverse side.This proxy, when properly executed and returned, will be voted in the manner directed by the undersigned stockholder. IF THIS PROXY IS PROPERLY EXECUTED AND RETURNEDANDRETURNED BUT NO DIRECTION IS GIVEN, THIS PROXY WILL BE VOTED FOR ALL NOMINEES LISTED ON THE REVERSE SIDE AND FOR PROPOSALS 2, 3 andAND 4. In theirdiscretion, the Named Proxies are authorized to vote upon such other business as may properly come before the Meeting.Meeting or at any adjournment or postponement thereof. All proxies heretoforeproxiesheretofore given by the undersigned are herebyrevoked.hereby revoked. Receipt of the Notice dated April 16, 202118, 2024, of the 20212024 Annual Meeting of Stockholders and the accompanying Proxy Statement relatingStatementrelating to the Meeting is acknowledged.IMPORTANT —- THIS PROXY CARD MUST BE SIGNED AND DATED ON THE REVERSE SIDE.PLEASESIDE. PLEASE REFER TO THE REVERSE SIDE OF THIS PROXY CARD FOR TELEPHONE ANDTELEPHONEAND INTERNET VOTING INSTRUCTIONS.Continued and to be signed on reverse side
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