EX-10.1 8 tm2119763d1_ex10-1.htm EXHIBIT 10.1

Exhibit 10.1

Repurchase Agreement

June 10, 2021

The Cheesecake Factory Incorporated

26901 Malibu Hills Road

Calabasas Hills, California

Ladies and Gentlemen:

1. Agreement to Repurchase. Subject to the terms of this Repurchase Agreement, each undersigned investor (each, an “Investor” and, collectively, the “Investors”) agrees to sell to The Cheesecake Factory Incorporated, a Delaware corporation (the “Company”), and the Company agrees to purchase from the Investors, an aggregate of 150,000 shares (the “Repurchased Preferred Stock”) of the Company’s Series A Convertible Preferred Stock (the “Preferred Stock”) that it beneficially owns for cash (the “Repurchase Consideration”) in an aggregate amount equal to the product of (x) the sum of (i) $2,958.34, plus (ii) the total accrued Regular Dividends (as defined in the Certificate of Designations) per share of Repurchased Preferred Stock from, and including, the immediately preceding Regular Dividend Payment Date to, but excluding, the Closing Date that have not been paid in cash, and (y) 150,000 (such sale and purchase, the “Repurchase”). The shares of Repurchased Preferred Stock are allocated among the Investors as set forth next to each Investor’s name in the Schedule of Investors attached hereto as Schedule B (the “Investor Schedule”). The parties acknowledge and agree that, upon consummation of the Repurchase, the Investors shall hold no further shares of Preferred Stock and no shares of Common Stock.

Subject to the terms and conditions of this Repurchase Agreement, at the Closing, the Company shall pay the Investors an aggregate cash payment equal to the Repurchase Consideration, which Repurchase Consideration shall be allocated among the Investors in accordance with the Investor Schedule. No cash or other consideration in excess of the Repurchase Consideration will be paid or given to the Investors in respect of any accumulated and unpaid dividends on the shares of Preferred Stock to be repurchased in the Repurchase. The Repurchase Consideration will be deemed to satisfy in full all accumulated and unpaid dividends on such shares of Repurchased Preferred Stock.

The Repurchase will occur in accordance with the procedures set forth in Section 3 hereof.

2. The Closing. The closing of the Repurchase (the “Closing”) will take place electronically, at 10:00 a.m., New York City time, on the later of (A) such date as the conditions to Closing set forth in Section 6 are satisfied or waived; and (B) such other time and place as the Company and the Investors may agree (such later date, the “Closing Date”).

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3. Repurchase. Subject to the terms and conditions of this Repurchase Agreement, the Investors hereby sell, assign and transfer to, or upon the order of, the Company all right, title and interest in the Repurchased Preferred Stock, waive any and all other rights with respect to such Repurchased Preferred Stock, and the related rights appurtenant thereto pursuant to the Certificate of Designations governing the Preferred Stock (the “Certificate of Designations”), and release and discharge the Company from any and all claims the Investors may now have, or may have in the future, arising out of, or related to, such Repurchased Preferred Stock, including, without limitation, any claims that any Investor is entitled to receive additional dividends with respect to the Repurchased Preferred Stock. Additionally, subject to the terms and conditions of this Repurchase Agreement, on the Closing Date, the Company agrees to pay the Repurchase Consideration to the Investors in accordance with the Investor Schedule, by wire transfers to the accounts in the United States set forth on Schedule A attached to this Repurchase Agreement.

At or prior to 9:30 a.m., New York City time, on the Closing Date, each Investor agrees to deliver the Repurchased Preferred Stock held by such Investor to the Company.

If the Closing of the Repurchase does not occur, any Repurchased Preferred Stock surrendered to the Company will be returned to the applicable Investor.

All authority herein conferred or agreed to be conferred in this Repurchase Agreement will survive the dissolution of any Investor or the Company, as applicable, and any representation, warranty, undertaking and obligation of any Investor or the Company, as applicable, hereunder will be binding upon the trustees in bankruptcy, legal representatives, successors and assigns of the Investors and the Company, as applicable.

4. Representations and Warranties of the Company. The Company represents and warrants to the Investors and covenants that:

(a) The Company is duly formed, validly existing and in good standing under the laws of the State of Delaware, with full power and authority to conduct its business as it is currently being conducted and to own its assets. The Company has full power and authority to consummate the Repurchase and to enter into this Repurchase Agreement and perform all of its obligations hereunder.

(b) The Repurchase and the other transactions contemplated thereby will not (A) contravene any law, rule or regulation binding on the Company or any subsidiary thereof or any judgment or order of any court or arbitrator or governmental or regulatory authority applicable to the Company or any such subsidiary, (B) constitute a breach or violation or result in a default under any loan agreement, mortgage, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it is bound or (C) constitute a breach or violation or result in a default under the organizational documents of the Company or any subsidiary thereof, except, in the case of clauses (A) and (B) above, for such contraventions, conflicts, violations or defaults that would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on the business, properties, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole or on the performance by the Company of its obligations under this Repurchase Agreement.

(c) No consent, approval, authorization, order, license, registration or qualification of or with any court or governmental or regulatory authority is required for the execution, delivery and performance by the Company of its obligations under this Repurchase Agreement and the consummation of the transactions contemplated by this Repurchase Agreement, except such as have been obtained or made (or will, at the Closing, have been obtained or made) by the Company.

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(d) This Repurchase Agreement has been duly authorized, executed and delivered by the Company, and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally and general principles of equity.

(e) Subject to the completion of the Concurrent Offerings (as defined below), the Company will have as of the Closing access to funds sufficient to consummate the transactions contemplated by this Repurchase Agreement.

(f) The terms of the transactions contemplated by this Repurchase Agreement were approved prior to the execution and delivery hereof by the adoption of resolutions of the Committee of Independent Directors of the Board of Directors of the Company in accordance with Rule 16b-3 under the Exchange Act for the purpose of exempting such persons and entities who may be deemed to have a pecuniary interest in the securities held by the Investor, from the liability provisions of Section 16(b) of the Exchange Act. For purposes of this Subsection 5(f), Committee of Independent Directors shall mean a committee of the board of directors composed solely of “Non-Employee Directors” (as such term is defined in Exchange Act).

(g) The Company acknowledges that no person has been authorized to give any information or to make any representation concerning the Investors or the transactions contemplated hereby other than as contained in this Repurchase Agreement. The Investors take no responsibility for, and provide no assurance as to the reliability of, any other information that others may provide to the Company.

(h) The Company will, upon request, execute and deliver any additional documents that any Investor may reasonably request to complete the transactions contemplated hereby.

(i) The Company understands that, unless the Investors notify the Company in writing to the contrary at or before the Closing, each of the Company’s representations and warranties contained in this Repurchase Agreement will be deemed to have been reaffirmed and confirmed as of the Closing.

5. Representations and Warranties of the Investors. Each Investor hereby represents and warrants to and covenants with the Company that:

(a) The Investor has full power and authority to exchange, sell, assign and transfer the applicable Repurchased Preferred Stock to be repurchased hereby and to enter into this Repurchase Agreement and perform all obligations required to be performed by the Investor hereunder.

(b) The Investor is and, immediately before the Closing, will be the beneficial owner of the Repurchased Preferred Stock set forth next to its name on the Investor Schedule.

(c) When the Repurchased Preferred Stock is repurchased pursuant to this Repurchase Agreement, the Company will acquire good, marketable and unencumbered title to the Repurchased Preferred Stock, free and clear of all liens (other than any liens arising under applicable laws).

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(d) The transactions contemplated hereby will not (A) contravene any law, rule or regulation binding on the Investor or any investment guideline or restriction applicable to the Investor, or (B) constitute a breach or violation or result in a default under the organizational documents of the Investor or any material loan agreement, mortgage, lease or other agreement or instrument to which the Investor is a party or by which it is bound, except for such contraventions, conflicts, violations or defaults that would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on the performance by the Investor of its obligations under this Repurchase Agreement.

(e) The Investor is a resident of the jurisdiction set forth on Schedule A attached to this Repurchase Agreement.

(f) The Investor acknowledges that no person has been authorized to give any information or to make any representation concerning the Company or the transactions contemplated hereby other than as contained in this Repurchase Agreement. The Company takes no responsibility for, and provides no assurance as to the reliability of, any other information that others may provide to the Investor.

(g) The Investor understands and accepts that the transactions contemplated hereby involve risks. The Investor has such knowledge, skill and experience in business, financial and investment matters that such person is capable of evaluating the merits and risks of the transactions contemplated hereby. With the assistance of the Investor’s own professional advisors, to the extent that the Investor has deemed appropriate, the Investor has made its own legal, tax, accounting and financial evaluation of the merits and risks of the transactions contemplated hereby and the consequences of this Repurchase Agreement. The Investor has considered the suitability of the transactions contemplated hereby as an investment in light of its own circumstances and financial condition, and the Investor is able to bear the risks associated with the transactions contemplated hereby.

(h) The Investor confirms that it is not relying on any statement (written or oral), representation or warranty made by, or on behalf of, the Company or any of their respective affiliates as investment, tax or other advice or as a recommendation to participate in the transactions contemplated hereby. Neither the Company nor any of its affiliates is acting or has acted as an advisor to the Investor in deciding whether to participate in the transactions contemplated hereby.

(i) The Investor confirms that none of the Company or any of its respective affiliates have (A) given any guarantee or representation as to the potential success, return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) of the transactions contemplated hereby; or (B) made any representation to the Investor regarding the legality of the transactions contemplated hereby under applicable investment guidelines, laws or regulations. In deciding to participate in the transactions contemplated hereby, the Investor is not relying on the advice or recommendations of the Company or its respective affiliates, and has made its own independent decision that the terms of the transactions contemplated hereby are suitable and appropriate for it.

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(j) The Investor is familiar with the business and financial condition and operations of the Company and has had the opportunity to conduct its own investigation of the Company. The Investor has had access to and reviewed applicable information concerning the transactions contemplated hereby it deems necessary to enable it to make an informed investment decision concerning the transactions contemplated hereby. The Investor has been offered the opportunity to ask questions of the Company and received answers thereto, as it deems necessary to enable it to make an informed investment decision concerning the transactions contemplated hereby.

(k) The Investor understands that no federal or state agency has passed upon the merits or risks of the transactions contemplated hereby or made any recommendation or endorsement, or made any finding or determination concerning the fairness or advisability, of such investment or the consequences of the transactions contemplated hereby and this Repurchase Agreement.

(l) The Investor is an “accredited investor” as defined in Rule 501(a) under the Securities Act. The Investor agrees to furnish any additional information requested by the Company or any of its affiliates to assure compliance with applicable U.S. federal and state securities laws in connection with the transactions contemplated hereby.

(m) The Investor acknowledges that the terms of the transactions contemplated hereby have been mutually negotiated between the Investor and the Company.

(n) The Investor will, upon request, execute and deliver any additional documents that the Company may reasonably request to complete the transactions contemplated hereby.

(o) The Investor acknowledges and agrees that it has not transacted, and will not transact, in any securities of the Company, including, but not limited to, any hedging transactions, from the time the Investor was first contacted by the Company with respect to the transactions contemplated by this Repurchase Agreement until after the Release Time (as defined in Section 8 herein).

(p) The Investor acknowledges that it is prohibited from entering into any Hedging Transaction (as defined in and as provided in Section 4.5 of the Subscription Agreement, dated as of April 20, 2020, by and between the Company and RC Cake Holdings LLC).

(q) The Investor acknowledges that, concurrently with and as a condition to the transactions contemplated hereby, the Company is conducting a public offering for cash of (i) convertible senior notes and (ii) shares of Company’s common stock (“Common Stock”), $0.01 par value per share (collectively, the “Concurrent Offerings”).

(r) The Investor understands that, unless the Company notifies the Investor in writing to the contrary at or before the Closing, each of the Investor’s representations and warranties contained in this Repurchase Agreement will be deemed to have been reaffirmed and confirmed as of the Closing.

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6. Conditions to Obligations of the Investors and the Company.

(a) The obligation of the Investors to deliver (or cause to be delivered) the applicable Repurchased Preferred Stock is subject to the satisfaction, at or prior to the Closing, of the following conditions precedent:

(i) the representations and warranties of the Company contained in Section 4 hereof shall be true and correct as of the Closing in all material respects with the same effect as though such representations and warranties had been made as of the Closing,

(ii) all covenants of the Company herein to be performed at or before the Closing shall have been performed in all material respects, and

(iii) no government, court, tribunal, arbitrator, administrative agency, commission or other governmental official, authority or instrumentality shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction, order or other legal restraint (whether temporary, preliminary or permanent) which is in effect and which has the effect of making the Repurchase illegal or otherwise prohibiting or preventing consummation of the Repurchase.

(b) The obligations of the Company to deliver (or caused to be delivered) the Repurchase Consideration (it being understood, for the avoidance of doubt, that nothing in this Repurchase will affect the Company’s obligations under the Certificate of Designations) are subject to the following conditions precedent:

(i) the representations and warranties of the Investors contained in Section 5 hereof shall be true and correct as of the Closing in all material respects with the same effect as though such representations and warranties had been made as of the Closing,

(ii) all covenants of the Investors therein to be performed at or before the Closing shall have been performed in all material respects,

(iii) no government, court, tribunal, arbitrator, administrative agency, commission or other governmental official, authority or instrumentality shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction, order or other legal restraint (whether temporary, preliminary or permanent) which is in effect and which has the effect of making the Repurchase illegal or otherwise prohibiting or preventing consummation of the Repurchase,

(iv) the Company shall have received the Repurchased Preferred Stock conforming to the requirements set forth in this Repurchase Agreement, and

(v) the Concurrent Offerings shall have closed.

7. Termination. In the event that the Closing has not been consummated by 5:30 p.m., New York City time, on June 22, 2021, either party may terminate this Repurchase Agreement so long as such party is not in willful and material breach of this Repurchase Agreement at such time, and if so terminated this Repurchase Agreement shall be of no further force or effect; provided, however, that (a) this Section 7 and Section 10, Section 11 and Sections 13 through 21 shall survive the termination of this Repurchase Agreement and shall remain in full force and effect and (b) the liability of a party hereto for any willful and material breach of this Repurchase Agreement prior to its termination shall survive termination of this Repurchase Agreement.

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8. Covenant and Acknowledgment of the Company. The Company hereby agrees to publicly disclose at or before 9:30 a.m., New York City time, on the first business day after the pricing of the Concurrent Offerings (such time and date, the “Release Time”), the repurchase of the Repurchased Preferred Stock contemplated by this Repurchase Agreement in a press release or Current Report on Form 8-K; provided, that to the extent reasonably practicable, the Company shall consult with the Investors, and provide the Investors with a reasonable opportunity to review and comment upon, any such press release, Current Report on Form 8-K and other public disclosure prior to the public disclosure of any of the foregoing.

9. Further Instruments and Acts; Efforts to Consummate the Concurrent Offerings. Each of the parties to this Repurchase Agreement agrees to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to more effectively carry out the purposes of this Repurchase Agreement. In addition, unless a Force Majeure Event occurs, the Company shall use its best efforts to consummate the Concurrent Offerings as promptly as practicable.

10. Waiver, Amendment. Neither this Repurchase Agreement nor any provisions hereof may be modified, changed, discharged or terminated except by an instrument in writing, signed by the party against whom any waiver, change, discharge or termination is sought.

11. Assignability. Neither this Repurchase Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof will be assignable by either the Company, on the one hand, or any Investor, on the other hand, without the prior written consent of the other parties.

12. Taxation.

(a) Each Investor represents that such Investor has provided the Company with either (i) a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 or (ii) a properly completed and executed IRS Form W-8IMY, certifying that it is a “Withholding Foreign Partnership” within the meaning of U.S. Treasury regulations (“Treasury Regulations”) Section 1.1441-5(c)(2), with its WP-EIN supplied, and certifying that it is compliant with the terms of its “withholding agreement” within the meaning of Treasury Regulations Section 1.1441-5(c)(2)(ii) where it has assumed primary withholding responsibility under both chapters 3 and 4 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), with respect to any payments to be received under this Repurchase Agreement. Each Investor further acknowledges that such Investor may be subject to 24% U.S. federal backup withholding on payments or deliveries made to such Investor unless such Investor properly establishes an exemption from backup withholding.

(b) The parties hereto acknowledge and agree that the transactions contemplated by this Repurchase Agreement are intended to be treated for U.S. federal (and applicable state and local) income tax purposes as a sale or exchange described in Section 1001 of the Code. The parties hereto will, and will cause their subsidiaries and agents to, report consistently with, and take no positions or actions inconsistent with, the foregoing treatment unless otherwise required by a determination within the meaning of Section 1313(a) of the Code.

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13. Waiver of Jury Trial. EACH OF THE COMPANY AND EACH INVESTOR IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF THE TRANSACTIONS CONTEMPLATED BY THIS REPURCHASE AGREEMENT.

14. Governing Law. This Repurchase Agreement will be governed by and construed in accordance with the laws of the State of New York.

15. Section and Other Headings; Certain Definitions. The section and other headings contained in this Repurchase Agreement are for reference purposes only and will not affect the meaning or interpretation of this Repurchase Agreement. For purposes of this Repurchase Agreement, a “Force Majeure Event” shall mean with respect to the period from launch of the Concurrent Offerings to pricing of the Concurrent Offerings, the occurrence or existence of (a) any suspension or limitation imposed on trading in the Common Stock on the NASDAQ Stock Market or (b) any geopolitical condition, outbreak of hostilities, acts of war, sabotage, civil unrest, cyberterrorism, terrorism, military actions, earthquakes, volcanic activity, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires, other disasters or natural disasters, weather conditions, epidemics, pandemics (including the COVID-19 pandemic) or other outbreaks of illness or public health events and other force majeure events (including any escalation or general worsening of any of the foregoing) that, in each case of this clause (b), has or would reasonably be expected to have a materially adverse effect on the business, financial condition, assets or results of operations of the Company and its subsidiaries, taken as a whole.

16. Counterparts. This Repurchase Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed to be an original and all of which together will be deemed to be one and the same agreement. Delivery of an executed signature page to this Repurchase Agreement by facsimile or other electronic transmission (including pdf format) will be effective as delivery of a manually executed counterpart hereof.

17. Notices. All notices and other communications to the Company provided for herein will be in writing and will be deemed to have been duly given if delivered personally or sent by nationally recognized overnight courier service or by registered or certified mail, return receipt requested, postage prepaid to the following addresses (or such other address as either party may have hereafter specified by notice in writing to the other): (a) if to the Company, The Cheesecake Factory Incorporated, 26901 Malibu Hills Road, Calabasas Hills, California, Attention: General Counsel; and (b) if to the Investors, the address provided on Schedule A below.

18. Binding Effect. The provisions of this Repurchase Agreement will be binding upon and accrue to the benefit of the parties hereto and their respective heirs, legal representatives, successors and permitted assigns.

19. Notification of Changes. Each Investor hereby covenants and agrees to notify the Company promptly upon becoming aware of the occurrence of any event prior to the Closing that would cause any representation, warranty, or covenant of such Investor contained in this Repurchase Agreement to be false or incorrect. The Company hereby covenants and agrees to notify the Investors promptly upon becoming aware of the occurrence of any event prior to the Closing that would cause any representation, warranty, or covenant of the Company contained in this Repurchase Agreement to be false or incorrect.

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20. Severability. If any term or provision of this Repurchase Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Repurchase Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

21. Remedies. The parties agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Repurchase Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific performance or other injunctive relief in order to enforce, or prevent any violations of, the provisions of this Repurchase Agreement.

22. Equitable Adjustment. If at any time during the period between the date of this Agreement and the Closing, any change in the outstanding shares of capital stock of the Company shall occur as a result of any reclassification, recapitalization, reorganization, stock split (including a reverse stock split) or combination, exchange or readjustment of shares, or the like, then appropriate equitable adjustments will be made to the dollar and share amounts referenced in this Repurchase Agreement.

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

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In Witness Whereof, the undersigned has executed this Repurchase Agreement as of the date first written above.

| Investors:
| RC CAKE 1 LLC
| By: | /s/ Stephen D. Aronson
|  | Name: | Stephen D. Aronson
|  | Title: | Vice President, Secretary and General Counsel

| RC CAKE 2 LLC
| By: | /s/ Stephen D. Aronson
|  | Name: | Stephen D. Aronson
|  | Title: | Vice President, Secretary and General Counsel

| RC CAKE 3 LLC
| By: | /s/ Stephen D. Aronson
|  | Name: | Stephen D. Aronson
|  | Title: | Vice President, Secretary and General Counsel

[Signature Page to Repurchase Agreement]

| The Cheesecake Factory Incorporated
| By: | /s/ Matthew Clark
|  | Name: | Matthew Clark
|  | Title: | Executive Vice President, Chief Financial Officer

[Signature Page to Repurchase Agreement]

SCHEDULE A

Investor Information

(Complete the Following Form for Each Investor)

[Intentionally omitted].

A-1

SCHEDULE A

Investor Information

(Complete the Following Form for Each Investor)

[Intentionally omitted].

A-2

SCHEDULE A

Investor Information

(Complete the Following Form for Each Investor)

[Intentionally omitted].

A-3

SCHEDULE B

Investor Schedule

Name of Investor |  | Number of Repurchased Preferred Stock Owned |  |  | Pro Rata Portion of Repurchase Consideration |
RC Cake 1 LLC |  |  | 75,211 |  |  |  | 50.14 | %
RC Cake 2 LLC |  |  | 25,340 |  |  |  | 16.89 | %
RC Cake 3 LLC |  |  | 49,449 |  |  |  | 32.97 | %

B-1