-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MVJ/0R5juwb7HjVxTHxFwJXDHWhbXVf/q5cRYXU5o+zPAp7Eun0oX4yffj7m/O4J 56Zhk1N4rJTGEpyUmCqdvg== 0000902664-06-001160.txt : 20060330 0000902664-06-001160.hdr.sgml : 20060330 20060330171635 ACCESSION NUMBER: 0000902664-06-001160 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20060330 DATE AS OF CHANGE: 20060330 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CKE RESTAURANTS INC CENTRAL INDEX KEY: 0000919628 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 330602639 STATE OF INCORPORATION: DE FISCAL YEAR END: 0125 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-43453 FILM NUMBER: 06724215 BUSINESS ADDRESS: STREET 1: 6307 CARPINTERIA AVENUE STREET 2: SUITE A CITY: CARPINTERIA STATE: CA ZIP: 93013 BUSINESS PHONE: (805)898-8408 MAIL ADDRESS: STREET 1: 6307 CARPINTERIA AVENUE STREET 2: SUITE A CITY: CARPINTERIA STATE: CA ZIP: 93013 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Pirate Capital LLC CENTRAL INDEX KEY: 0001295984 IRS NUMBER: 030445177 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 200 CONNECTICUT AVENUE STREET 2: 4TH FLOOR CITY: NORWALK STATE: CT ZIP: 06854 BUSINESS PHONE: 203 854 1100 MAIL ADDRESS: STREET 1: 200 CONNECTICUT AVENUE STREET 2: 4TH FLOOR CITY: NORWALK STATE: CT ZIP: 06854 SC 13D/A 1 sc13da.txt CKE RESTAURANT SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------- SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. 2)* Under the Securities Exchange Act of 1934 CKE Restaurants, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 12561E105 - -------------------------------------------------------------------------------- (CUSIP Number) Thomas R. Hudson Jr. Pirate Capital LLC 200 Connecticut Avenue, 4th Floor Norwalk, CT 06854 (203) 854-1100 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 29, 2006 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. (Continued on following pages) (Page 1 of 6 Pages) - -------------------------- * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - ------------------------------ --------------------- CUSIP NO. 12561E105 SCHEDULE 13D PAGE 2 OF 6 PAGES - ------------------------------ --------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) PIRATE CAPITAL LLC - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ---------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 5,688,660 OWNED BY ---------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH -0- ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 5,688,660 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 5,688,660 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.5% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IA - -------------------------------------------------------------------------------- * SEE INSTRUCTIONS BEFORE FILLING OUT! - ------------------------------ --------------------- CUSIP NO. 12561E105 SCHEDULE 13D PAGE 3 OF 6 PAGES - ------------------------------ --------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) THOMAS R. HUDSON JR. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ---------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 5,688,660 OWNED BY ---------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH -0- ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 5,688,660 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 5,688,660 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.5% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - -------------------------------------------------------------------------------- * SEE INSTRUCTIONS BEFORE FILLING OUT! - ------------------------------ --------------------- CUSIP NO. 12561E105 SCHEDULE 13D PAGE 4 OF 6 PAGES - ------------------------------ --------------------- The Schedule 13D filed on February 6, 2006 by Pirate Capital LLC, a Delaware limited liability company ("Pirate Capital"), and Thomas R. Hudson Jr. (together, the "Reporting Persons"), relating to the shares of common stock, $0.01 par value ("Shares"), of CKE Restaurants, Inc. (the "Issuer"), as previously amended by Amendment No. 1 to the Schedule 13D filed on March 6, 2006, is hereby amended by this Amendment No. 2 to the Schedule 13D. The principal executive office of the Issuer is located at 6307 Carpinteria Avenue, Ste. A, Carpinteria, California 93013. Please note that this Amendment No. 2 is being refiled to include Exhibit B which was inadvertently omitted from the original filing. ITEM 2. IDENTITY AND BACKGROUND Paragraph (a) to Item 2 is hereby amended and restated as follows: (a) This statement is filed by the Reporting Persons. Each of the Reporting Persons is deemed to be the beneficial owner of the Shares held by Jolly Roger Fund LP, Jolly Roger Offshore Fund LTD and Jolly Roger Activist Portfolio Company LTD (the "Holders"). The Reporting Persons disclaim that they and/or the Holders are members of a group as defined in Regulation 13D-G. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Item 3 is hereby amended and restated as follows: Funds for the purchase of the Shares reported herein were derived from available capital of the Holders. A total of approximately $82,314,849 was paid to acquire such Shares. ITEM 4. PURPOSE OF TRANSACTION. Item 4 of the Schedule 13D is hereby amended by the addition of the following: On March 29, 2006 Pirate Capital and the Issuer entered into an Agreement (the "Agreement") pursuant to which, among other things, the Issuer agreed that if Pirate Capital or any of the Holders submits notice on or before April 15, 2006 for a director to be nominated at the Issuer's 2006 Annual Meeting of Shareholders, then such notice will be deemed to have been timely delivered and, if such notice is timely delivered, then the Issuer would not hold the 2006 Annual Meeting of Shareholders until at least 70 days following receipt of such notice. A copy of the Agreement is attached hereto as Exhibit B and incorporated herein by reference. ITEM 5. INTEREST IN SECURITIES OF THE COMPANY. Paragraphs (a), (b) and (c) of Item 5 of the Schedule 13D are hereby amended and restated as follows: (a) As of the close of business on March 29, 2006, the Reporting Persons beneficially owned 5,688,660 Shares, constituting approximately 9.5% of the Shares outstanding. The aggregate percentage of Shares beneficially owned by the Reporting Persons is based upon 59,822,260 Shares outstanding, which is the total number of Shares outstanding as reported in the Issuer's Current Report on Form 8-K filed on March 28, 2006. - --------------------------- ------------------- CUSIP NO. 12561E105 SCHEDULE 13D PAGE 5 OF 6 PAGES - --------------------------- ------------------- (b) By virtue of its position as general partner of Jolly Roger Fund LP, Pirate Capital has the power to vote or direct the voting and to dispose or direct the disposition of all of the 1,523,600 Shares held by Jolly Roger Fund LP. By virtue of agreements with Jolly Roger Offshore Fund, LTD and Jolly Roger Activist Portfolio Company LTD, Pirate Capital has the power to vote or direct the voting, and to dispose or direct the disposition of, all of the 4,165,060 Shares held by Jolly Roger Offshore Fund LTD and Jolly Roger Activist Portfolio Company LTD. By virtue of his position as sole Managing Member of Pirate Capital, Thomas R. Hudson Jr. is deemed to have shared voting power and shared dispositive power with respect to all Shares as to which Pirate Capital has voting power or dispositive power; thus giving him an aggregate of shared voting power and shared dispositive power with respect to 5,688,660 Shares with Pirate Capital. Matt Goldfarb, a Director and Senior Investment Analyst at Pirate Capital, beneficially owns 2,500 Shares. The Reporting Persons disclaim beneficial ownership over such Shares. (c) The following transactions in the Shares were effected by the Reporting Persons since the most recent filing on Schedule 13D. All of the Shares were purchased in open market transactions. Jolly Roger Fund LP Trade Date Shares Purchased (Sold) Price per Share - ---------- ---------------- --------------- 3/7/2006 100,000 16.81 3/7/2006 19,400 16.50 3/8/2006 2,900 16.60 3/10/2006 20,000 16.55 3/15/2006 1,000 17.50 3/27/2006 100,000 17.50 3/28/2006 300,000 17.25 3/28/2006 25,000 17.20 Jolly Roger Activist Portfolio Company LTD Trade Date Shares Purchased (Sold) Price per Share - ---------- ---------------- --------------- 3/29/2006 100,000 17.20 Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE COMPANY. Item 6 of the Schedule 13D is hereby amended by the addition of the following: As set forth below, Jolly Roger Fund LP sold the following put option on the open market:
Date of Sale Shares Exercise Price per Expiration Date Purchase Price per Underlying Share ($) Option ($) Options - -------------------------------------------------------------------------------------- 03/10/06 78,200 17.50 04/22/06 1.107
Item 7. MATERIAL TO BE FILED AS EXHIBITS Item 7 of the Schedule 13D is hereby amended by the addition of the following: 2. Exhibit B - Agreement, dated March 29, 2006, by and between Pirate Capital LLC and CKE Restaurants, Inc. - --------------------------- ------------------- CUSIP NO. 12561E105 SCHEDULE 13D PAGE 6 OF 6 PAGES - --------------------------- ------------------- SIGNATURES After reasonable inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: March 30, 2006 PIRATE CAPITAL LLC By: /s/ Thomas R. Hudson Jr. --------------------------- Name: Thomas R. Hudson Jr. Title: Managing Manager /s/ Thomas R. Hudson Jr. ------------------------------ Thomas R. Hudson Jr. EX-99 2 exhibit99.txt EXHIBIT 99 AGREEMENT AGREEMENT This Agreement, dated as of March 29, 2006 (this "Agreement"), is entered into by and between Pirate Capital LLC, a Delaware limited liability company ("Pirate Capital"), and CKE Restaurants, Inc., a Delaware corporation (the "Company"). WHEREAS, through funds and accounts for which it serves as general partner and/or as investment advisor (the "Funds"), Pirate Capital beneficially owns an aggregate of approximately 8.44% of the Company's outstanding common stock, $0.01 par value per share ("Common Stock"); WHEREAS, Article II, Section 2.9(A) of the Company's Bylaws (as amended, the "Bylaws") provides, in part, that business may be conducted at an annual meeting of stockholders if brought before the meeting by a stockholder of record whose written notice with respect to such business is delivered to and received by the Secretary of the Company not less than 90 days before the date of the meeting; WHEREAS, Article II, Section 2.9(B) of the Bylaws provides, in part, that nominations for the election of directors at an annual meeting of stockholders may be made by a stockholder whose written notice of intent to make such nominations has been delivered to the Secretary of the Company not later than 90 days before the date of the meeting (the "Pre-Meeting Date"); and WHEREAS, Pirate Capital has inquired of the Company about the availability of a Board seat for a person affiliated with the Funds, or funds similar to the Funds and which have a significant ownership interest in the Company; WHEREAS, the Company is receptive to such inquiry, under the appropriate circumstances, as being a positive step for the Company to have such a person on its Board, however, the Company is unable to complete the appropriate due diligence of any such person prior to the Pre-Meeting Date; WHEREAS, accordingly, the Company is desirous of granting to Pirate Capital an extension of time to provide the requisite advance notice (the "Notice") for a director to be nominated at the Company's 2006 annual meeting of stockholders (including any special meeting held in lieu thereof or any adjournments or postponements of such annual or special meeting, the "2006 Annual Meeting"), as provided in this Agreement; NOW, THEREFORE, in consideration of the mutual covenants herein set forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. TOLLING. Notwithstanding any provision to the contrary set forth in the Bylaws, each of which is hereby waived by the Company, it is expressly agreed that should Pirate Capital and/or one or more of the Funds provide the Notice at any time on or prior to 5:00 p.m. (New York time) on April 15, 2006, (i) the Notice shall be deemed timely for all purposes and neither the Company nor any person acting on its behalf shall contest the timeliness thereof, (ii) should the Company contest the validity of the Notice for any reason other than the timeliness thereof, the Company shall provide the party delivering the Notice with at least five business days to cure any such alleged defect after receipt of written notice thereof, and (iii) the Company shall not hold the 2006 Annual Meeting earlier than 70 days following receipt of the Notice. 2. REPRESENTATIONS AND WARRANTIES. Each of the Company and Pirate Capital hereby represents and warrants with respect to itself as follows: 2.1 AUTHORITY RELATIVE TO THIS AGREEMENT. It has the full legal right and power and all authority and approval required to enter into, execute and deliver this Agreement and to perform fully its obligations hereunder. This Agreement has been duly authorized, executed and delivered by it and this Agreement constitutes the valid and binding obligation of it enforceable against it in accordance with the terms hereof. 2.2 ABSENCE OF CONFLICTS. Its execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and its performance hereunder in accordance with the terms and conditions hereof will not: (i) violate, conflict with or result in a breach of any provision of its articles of incorporation, by-laws or comparable governing documents, (ii) violate, conflict with or result in a breach of any provision of or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, any contract or other agreement to which it is a party or by or to which it is bound or subject; or (iii) violate any judgment, ruling, order, writ, injunction, award, decree, statute, law, ordinance, code, rule or regulation of any court or foreign, federal, state, county or local government or any other governmental, regulatory or administrative agency or authority that is applicable to it. 3. GENERAL. 3.1 AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be amended, modified, supplemented or terminated, and waivers or consents to departures from the provisions hereof may not be given, without the written consent of the Company and Pirate Capital. 3.2 NOTICES. All notices and other communications provided for or permitted hereunder to any party shall be deemed to be sufficient if contained in a written instrument and shall be deemed to have been duly delivered when delivered in person, by facsimile, by nationally-recognized overnight courier, or by first class registered or certified mail, postage prepaid, addressed to such party at the address set forth below or such other address as may hereafter be designated in writing by the addressee as follows: If to the Company, to: CKE Restaurants, Inc. 6307 Carpinteria Avenue, Ste. A, Carpinteria, California Attention: Michael Murphy Telephone: (805) 745-7500 Telecopier: (805) 745-7702 with a copy to: Stradling Yocca Carlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach, California 92660 Attention: C. Craig Carlson, Esq. Telephone: (949) 725-4125 Telecopier: (949) 823-5125 If to Pirate Capital, to: Pirate Capital LLC 200 Connecticut Avenue, 4th Floor Norwalk, Connecticut 06854 Attention: Matt Goldfarb Telephone: (203) 854-1100 Telecopier: (203) 854-5841 With a copy to: Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attn: Eleazer Klein, Esq. Telephone: (212) 756-2376 Telecopier: (212) 593-5955 All such notices, requests, consents and other communications shall be deemed to have been delivered (i) in the case of personal delivery or delivery by electronically confirmed facsimile, on the date of such delivery, (ii) in the case of nationally-recognized overnight courier, on the next business day and (iii) in the case of mailing, on the third business day following such mailing if sent by certified mail, return receipt requested. 3.3 DESCRIPTIVE HEADINGS, ETC. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning of terms contained herein. Unless the context of this Agreement otherwise requires, as used herein: (i) words of any gender shall be deemed to include each other gender; (ii) words using the singular or plural number shall also include the plural or singular number, respectively; (iii) the words "hereof", "herein" and "hereunder" and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (iv) the word "including" and words of similar import mean "including, without limitation"; and (v) "or" is not exclusive. This Agreement may be executed in two or more counterparts, each of which, when so executed and delivered, shall be deemed to be an original, but all of which counterparts, taken together, shall constitute one and the same instrument; provided that a facsimile signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile signature. Each party hereto acknowledges that it has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement with its legal counsel and that this Agreement shall be construed as if jointly drafted by the parties. 3.4 SEVERABILITY. In the event that any one or more of the provisions, paragraphs, words, clauses, phrases or sentences contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability thereof in every other respect and of the other remaining provisions, paragraphs, words, clauses, phrases or sentences hereof shall not be in any way impaired, it being intended that all rights, powers and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law. 3.5 GOVERNING LAW; SPECIFIC PERFORMANCE. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware (without reference to its choice of law rules). The parties agree that irreparable damage would occur in the event that the provisions of this Agreement were not performed in accordance with their specific terms. Accordingly, it is agreed that either party shall be entitled to an injunction or injunctions to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction without the posting of a bond or other security, this being in addition to any other remedy to which such party is entitled at law or in equity. 3.6 ENTIRE AGREEMENT. This Agreement is intended by the parties as a final expression of and a complete and exclusive statement of their agreement and understanding in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings relating to such subject matter, other than those set forth or referred to herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. [Remainder of page intentionally left blank. Signature page follows.] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. PIRATE CAPITAL LLC By: /s/ Thomas R. Hudson Jr. ------------------------ Name: Thomas R. Hudson Jr. Title: Managing Member CKE RESTAURANTS, INC. By: /s/ Michael Murphy -------------------------- Name: Michael Murphy Title: Executive Vice President -----END PRIVACY-ENHANCED MESSAGE-----