Item 2. Unregistered Sales of Equity Securities
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
The following table presents our purchases of our common stock during the fiscal quarter ended June 30, 2020:
Total Number
Total Number of Shares
Maximum Number of
of
Average
Purchased as Part of
Shares that May Yet Be
Shares
Price Paid
Publicly Announced
Purchased Under the
Period
Purchased (1)
per Share
Plans or Programs
Plans or Programs
April 1 — May 5, 2020
241
$
15.60
—
3,004,994
May 6 — June 2, 2020
11,767
21.48
—
2,993,227
June 3 — June 30, 2020
405
22.92
—
2,992,822
Total
12,413
—
(1) The total number of shares purchased includes 12,413 shares withheld upon vesting of restricted share awards to satisfy tax withholding obligations.
Under the July 21, 2016 authorization by our Board to repurchase up to 56.0 million shares of our common stock, we have cumulatively repurchased 53.0 million shares at a total cost of $1,696.0 million through June 30, 2020 with 12,413 repurchased during the second quarter of fiscal 2020 to satisfy tax withholding obligations on vested restricted share awards. Our share repurchase authorization does not have an expiration date, does not require us to purchase a specific number of shares and may be modified, suspended or terminated at any time. (See Note 11 of Notes to Condensed Consolidated Financial Statements in Part I, Item 1 of this report for further discussion of our repurchase authorization and methods.) The timing and number of shares repurchased are also subject to legal constraints and financial covenants under the Facility that limit share repurchases based on a defined ratio. To preserve liquidity during the COVID-19 pandemic and in conjunction with the terms of our Amended Facility, we suspended share repurchases. (See Note 7 of Notes to Condensed Consolidated Financial Statements in Part I, Item 1 of this report for further discussion of our Amended Facility.)
On April 20, 2020, as further discussed in Note 11 of Notes to Consolidated Financial Statements in Part I, Item 1 of this report, to increase our liquidity given the impact of the COVID-19 pandemic on our operations, we issued 200,000 shares of Series A Convertible Preferred Stock for an aggregate purchase price of $200 million. During the second quarter of fiscal 2020, we issued 3,694 shares of Preferred Stock to satisfy a payment-in-kind dividend of $18.47 per share.
Each holder has the right, at its option, to convert its Preferred Stock into common stock at a conversion price equal to $22.23 per share, subject to customary anti-dilution adjustments, including in the event of any stock split, stock dividend, recapitalization or similar events and certain anti-dilutive offerings occurring through April 19, 2021. Pursuant to the terms of the Certificate of Designations, unless and until approval of our stockholders is obtained as contemplated by Nasdaq listing rules, no holder may convert shares of Preferred Stock through either an optional or a mandatory conversion into shares of common stock if and solely to the extent that such conversion would result in the holder beneficially owning in excess of 19.9% of then outstanding common stock. The Company has the right to settle any conversion in cash.
Subject to certain conditions, we may, at our option, require conversion of all of the outstanding shares of 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 holders 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 Preferred Stock unless certain liquidity conditions with regard to the shares of common stock to be issued upon such conversion are satisfied.
The shares of Preferred Stock paid-in-kind were issued in reliance upon an exemption from registration under the Securities Act pursuant to Section 4(a)(2) thereof. The shares of common stock issuable upon conversion of shares of the Preferred Stock will be issued in reliance upon the exemption from registration in Section 3(a)(9) of the Securities Act.
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Table of Contents
Item 6. Exhibits
Exhibit
No.
Item
Form
File Number
Incorporated by
Reference from
Exhibit Number
Filed with SEC
2.1
Purchase Agreement, dated as of November 14, 2016, as amended by Amendment & Option Exercise Agreement, dated as of July 30, 2019, by and among The Cheesecake Factory Incorporated and the other Parties thereto*
10-Q
000-20574
2.1
11/8/19
2.2
First Amendment to Option Exercise Agreement and Second Amendment to Purchase Agreement and Operating Agreement, dated as of October 2, 2019, by and among The Cheesecake Factory Incorporated and the other Parties thereto*
10-Q
000-20574
2.2
11/8/19
2.3
Membership Interest Purchase Agreement, dated as of July 30, 2019, by and among The Cheesecake Factory Restaurants, Inc., Fox Restaurant Concepts LLC, the Sellers party thereto, SWF Posse LLC, as Seller’s representative, and, solely for limited purposes set forth therein, The Cheesecake Factory Incorporated*†
10-Q
000-20574
2.3
11/8/19
2.4
First Amendment to Membership Interest Purchase Agreement, dated as of October 2, 2019, by and among The Cheesecake Factory Restaurants, Inc., Fox Restaurant Concepts LLC, and SWF Posse LLC, as Seller’s representative*
10-Q
000-20574
2.4
11/8/19
3.1
Restated Certificate of Incorporation of The Cheesecake Factory Incorporated
10-Q
000-20574
3.2
8/6/18
3.2
Certificate of Designations of The Cheesecake Factory Incorporated, dated April 20, 2020
8-K
000-20574
3.1
4/20/20
3.3
Bylaws of The Cheesecake Factory Incorporated (Amended and Restated on May 20, 2009)
8-K
000-20574
3.8
5/27/09
10.1
Form of Notice of Grant and Stock Unit Grant Agreement for Directors under The Cheesecake Factory Incorporated Stock Incentive Plan#
10-Q
000-20574
10.1
6/22/20
10.2
Indemnification Agreement, dated as of April 20, 2020, between The Cheesecake Factory Incorporated and Paul D. Ginsberg#
10-Q
000-20574
10.2
6/22/20
10.3
Subscription Agreement, dated April 20, 2020, by and between The Cheesecake Factory Incorporated and RC Cake Holdings LLC
8-K
000-20574
10.1
4/20/20
10.4
Registration Rights Agreement, dated April 20, 2020, by and between The Cheesecake Factory Incorporated and RC Cake Holdings LLC
8-K
000-20574
10.2
4/20/20
10.5
Acknowledgement and Support Agreement, dated April 20, 2020, by and between David Overton and RC Cake Holdings LLC
8-K
000-20574
10.3
4/20/20
10.6
First Amendment, dated as of May 1, 2020, to the Third Amended and Restated Loan Agreement, dated as of July 30, 2019 , between The Cheesecake Factory Incorporated, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders from time to time party thereto
8-K
000-20574
10.1
5/5/20
36
Table of Contents
Exhibit
No.
Item
Form
File Number
Incorporated by
Reference from
Exhibit Number
Filed with SEC
31.1
Rule 13a-14(a)/15d-14(a) Certification of the Principal Executive Officer
—
—
—
Filed herewith
31.2
Rule 13a-14(a)/15d-14(a) Certification of the Principal Financial Officer
—
—
—
Filed herewith
32.1
Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 of the Principal Executive Officer
—
—
—
Filed herewith
32.2
Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 of the Principal Financial Officer
—
—
—
Filed herewith
101.1
The following materials from The Cheesecake Factory Incorporated’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2020, formatted in Inline eXtensible Business Reporting Language (iXBRL): (i) condensed consolidated balance sheets, (ii) condensed consolidated statements of income, (iii) condensed consolidated statements of comprehensive income, (iv) condensed consolidated statement of stockholders’ equity, (v) condensed consolidated statements of cash flows, and (vi) the notes to the condensed consolidated financial statements
—
—
—
Filed herewith
104.1
The cover page of The Cheesecake Factory Incorporated’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2020, formatted in iXBRL (included with Exhibit 101.1)
—
—
—
Filed herewith
* The schedules (or similar attachments) to this exhibit have been omitted from this filing pursuant to Item 601(a)(5) of Regulation S-K. The Company will furnish copies of any such schedules or similar attachments) to the SEC upon request.
† Certain confidential information contained in this agreement has been omitted because it (i) is not material and (ii) would be competitively harmful if publicly disclosed.
# Management contract or compensatory plan or arrangement required to be filed as an exhibit.
37
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Date: August 3, 2020
THE CHEESECAKE FACTORY INCORPORATED
By:
/s/ DAVID OVERTON
David Overton
Chairman of the Board and Chief Executive Officer
(Principal Executive Officer)
By:
/s/ MATTHEW E. CLARK
Matthew E. Clark
Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
38
Text extracted from the filing as submitted to EDGAR. Formatting, tables and exhibits are simplified for reading; the original document is authoritative for anything you rely on.