CHEESECAKE FACTORY INC 10-Q

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 March 30, 2021: ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ Total Number of Maximum Number ​ ​ ​ ​ ​ ​ Shares Purchased ​ of Shares that May ​ ​ Total Number ​ ​ ​ as Part of Publicly ​ Yet be Purchased ​ ​ of Shares ​ Average Price ​ Announced Plans ​ Under the Plans or Period ​ Purchased (1) ​ Paid per Share ​ or Programs ​ Programs December 30, 2021 — February 2, 2021 2,450 ​ $ 37.23 — 2,967,807 February 3 — March 2, 2021 55,518 ​ 51.49 — 2,912,289 March 3, 2021 — March 30, 2021 17,332 ​ 58.11 — 2,894,957 Total 75,300 ​ — (1) The total number of shares purchased represents shares withheld upon vesting of restricted share awards to satisfy tax withholding obligations. ​ Under authorization by our Board to repurchase up to 56.0 million shares of our common stock, we have cumulatively repurchased 53.1 million shares at a total cost of $1,700.7 million through March 30, 2021 with 0.1 million shares repurchased at a cost of $4.0 million during the first 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. To preserve liquidity during the COVID-19 pandemic and in conjunction with the terms of our credit facility, in March 2020, our Board suspended share repurchases. The timing and number of shares repurchased are also subject to legal constraints and financial covenants under our credit facility that limit share repurchases based on a defined ratio. ​ On April 20, 2020, to increase our liquidity given the impact of the COVID-19 pandemic on our operations, we issued 200,000 shares of Series A preferred stock for an aggregate purchase price of $200 million. During the first quarter of fiscal 2021, we declared a cash dividend of $5.1 million, or $25.35 per share. ​ Each 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 our 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 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 the holder beneficially owning in excess of 19.9% of the then outstanding common stock. The Company has the right to settle any conversion in cash. ​ After April 20, 2023 and 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 holders of the 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. ​ The shares of common stock issuable upon conversion of shares of the Series A preferred stock will be issued in reliance upon the exemption from registration in Section 3(a)(9) of the Securities Act. ​ (See Note 9 of Notes to Consolidated Financial Statements in Part I, Item 1 of this report for further discussion of our stockholders' equity and Series A preferred stock.) ​ 29 Table of Contents ​ Item 6. Exhibits ​ Exhibit No. Item Form File Number Incorporated by Reference from Exhibit Number Filed with SEC ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 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 ​ Second Amendment to the Third Amended and Restated Loan Agreement, dated as of March 30, 2021, among The Cheesecake Factory Incorporated, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders party thereto ​ 8-K ​ 000-20574 ​ 10.1 ​ 4/5/21 10.2 ​ Form of Notice of Grant and Stock Option Agreement and/or Restricted Share Agreement for Executive Officers under The Cheesecake Factory Incorporated Stock Incentive Plan ​ — ​ — ​ — ​ Filed herewith 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 March 30, 2021, 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 March 30, 2021, 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. ​ ​ 30 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: May 3, 2021 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) ​ ​ 31