In September 2011, activist investor Sardar Biglari initiated a proxy contest seeking election to the board of restaurant company Cracker Barrel. Although Cracker and Barrel was highly succ

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Professor Suraj Srinivasan and Research Associate Tim Gray prepared this case with the assistance of the Case Research & Writing Group. This case was developed from published sources. Funding for the development of this case was provided by Harvard Business School, and not by the company. HBS cases are developed solely as the basis for class discussion. Cases are not intended to serve as endorsements, sources of primary data, or illustrations of effective or ineffective management. Copyright © 2014 President and Fellows of Harvard College. To order copies or request permission to reproduce materials, call 1-800-545-7685, write Harvard Business School Publishing, Boston, MA 02163, or go to www.hbsp.harvard.edu/educators. This publication may not be digitized, photocopied, or otherwise reproduced, posted, or transmitted, without the permission of Harvard Business School.

S U R A J S R I N I V A S A N

T I M G R A Y

Showdown at Cracker Barrel

As of today, Biglari Holdings has submitted formal notice . . . to nominate me to the Company’s Board of Directors at the upcoming annual meeting . . . . Although we are the largest stockholder of Cracker Barrel with an ownership of 9.3% of the outstanding common stock . . . you have been unwilling to address our concerns and unwilling to place us on the board. Not only did you not invite us, but you rejected the idea and then made an ersatz settlement offer so that others would perceive you as reasonable when in reality you have been unreasonable. In fact your offer was disingenuous.

—Sardar Biglari, chairman, Biglari Holdings, in a letter to the chairman of Cracker Barrel, September 1, 20111

The shareholders of Cracker Barrel Old Country Store, Inc. had much to think about in the days leading up to the company’s December 20, 2011 annual meeting. Activist investor Sardar Biglari was challenging the Cracker Barrel board in a proxy fight. His message: Cracker Barrel, a publicly traded restaurant chain had underperformed. Biglari, with nearly 10% of Cracker Barrel’s stock, was fighting to gain a seat on the board and force reform.

With more than 600 locations in the U.S., Cracker Barrel offered breakfast, lunch and dinner menus featuring home-style comfort foods, with a Southern emphasis. Each restaurant had a co- joined “country store” that retailed a wide selection of merchandise that harkened to a bygone American era.

Perhaps Cracker Barrel’s board had not taken Biglari seriously. At only 34, he was something of an upstart. The son of Iranian immigrants, Biglari started a small hedge fund with money collected from the sale of an Internet company he had founded while in college. The fund bought shares in restaurant companies, including Friendly’s Ice Cream and Western Sizzlin’ Corp., which Biglari took over as chairman in 2006. He profited when a private-equity firm bought Friendly’s. Later his fund invested in the Steak n Shake restaurant chain, taking control in 2008 after a proxy fight.2

His company, Biglari Holdings (see Exhibit 1), was based in San Antonio, Texas, and had a market capitalization that paled beside Cracker Barrel’s. He openly emulated the billionaire investor Warren Buffett, penning Buffett-like missives to shareholders. For example, in the firm’s 2011 annual report Biglari wrote:

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The capital allotment decisions I will make will shape the organization. Therefore, Biglari Holdings is a jockey stock. You are choosing the jockey; I am choosing the horses. It would be asinine to bet on the jockey and then deny him the saddle or whip. In a similar vein, to secure advantages at BH, we have organized the company as an investment machine with maximum flexibility—even if the ideas behind it are uncommon.3

Photos of Biglari, hair slicked and suit tailored, hung on the walls of his restaurants. “A lot of people are very skeptical of him,” a securities analyst said. “He’s brash and young, and he thinks he knows better than people who have been in business for years.”4

He was the antithesis of the members of the Cracker Barrel board. Chairman Mike Woodhouse, 65, joined the company in 1995 and had spent three decades working in the restaurant business. Some of his fellow board members had even longer tenures. One, for example, had been on the board for 40 years. Biglari contended board members had stayed too long, grown complacent, owned too little stock in Cracker Barrel, and worried more about their perks and privileges than about shareholders.

Cracker Barrel

Cracker Barrel was, in some ways, the Wal-Mart of the restaurant business. Like the big retailer, it began and expanded, early on, in the American South. Even as it grew, Cracker Barrel clung to a small-town headquarters and homespun ways. It did not sell beer, wine or liquor, for example, because its founder, Danny Evins, had believed that alcohol detracted from a family-friendly feel.5 The chain was based in Lebanon, Tenn., about 30 miles from Nashville, the site of the first restaurant opened in 1969 next to Evins’ gasoline station. Its main virtue was its location astride U.S. Interstate 40. The interstate offered up a steady flow of hungry customers. Evins was convinced that some of them hankered for something besides lukewarm burgers, limp fries and foil packets of ketchup. He figured they might crave the same home-style cooking that he did: cornbread and turnip greens, biscuits and gravy, fried chicken and country ham. He priced his fare affordably—not quite as cheap as fast food but close—and opted for a sit-down format with table service.

He modeled his business on the country stores he had known as a kid growing up in the rural South. To make customers feel at home, restaurants had a fireplace and a front porch lined with rocking chairs. The country store sold items such as candies, jams and bric-a-brac, but also wooden toys, cast-iron cookware, and other goods (see Exhibit 2). Over the ensuing decades, as Cracker Barrel moved outside of the South, it continued to trade on its Southern down-home roots. For example, the company signed deals with famed country singers, such as Dolly Parton, to distribute exclusive recordings of their music. In 1981, the company began trading on NASDAQ.

“From the very beginning of this company we have insisted on serving quality food and practicing good customer service. Our mission is to please people. It’s a challenge to run a business like this, but we just try to focus our daily business on treating our guests well. We want Cracker Barrel to be a safe haven for travelers and customers,” said Woodhouse.6 He joined the organization as senior vice president of finance and CFO in 1995 and assumed positions of increasing responsibility over the years. Before he became CEO in 2001 and chairman in 2004, Woodhouse held senior positions in the restaurant industry including executive vice president and CFO of S&A Restaurant Corporation and executive vice president and CFO of TGI Friday’s, Inc.7

Under Woodhouse, Cracker Barrel grew from 257 locations in 1996 to more than 600 in 42 states in 2011.8 Despite the expansion, the company still was highly concentrated in the U.S. South; Tennessee alone had 50 Cracker Barrel restaurants/country stores. In addition, the original location philosophy was still followed with 85% of Cracker Barrels located at interstate interchanges. As Cracker Barrel

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expanded, management preferred to own, rather than lease, land and buildings. Restaurants/stores varied in size but were typically about 9,500 square feet, with about half the space kitchen and storage areas. Of the other half, the dining area occupied about 55% of the space and country stores about 45%. Nearly a third of customers made retail purchases and country store sales were about 20% of total sales. (See Exhibit 3 for Cracker Barrel Fact Sheets, 2011.)

From fiscal 2002 through fiscal 2007, the company delivered steady increases in sales and net income and its stock price nearly doubled, trading over $40 in early 2007. (See Exhibit 4 for stock price performance.) But as the share price crested, high gasoline prices brought a slowdown to the casual-dining sector, and soon after the U.S. recession took hold. Sales in fiscal year 2008 of $2.385 billion were up slightly (1.3% over 2007), while net income plummeted 60%. The company responded by reorganizing and shedding less profitable outlets. It sold its Logan’s Roadhouse chain of steakhouses which Cracker Barrel had acquired less than a decade earlier. As part of the reorganization, several executives left, and Woodhouse retook the presidency. (The company brought in Sandra Cochran as CFO. She joined from Books-A-Million, an Alabama retailer, where she had been CEO for five years. In 2010, she became Cracker Barrel’s chief operating officer.)

In fiscal 2009, sales were down nearly 1%, while net income was up 0.5%. Cracker Barrel raised its menu prices during the year and despite a 2.9% increase in the average meal check, comparable restaurant sales dropped 1.7% for the year, while comparable retail sales fell 5.9%.9 Growth resumed in 2010, with sales rising to $2.405 billion, up 1.5% over 2009. Profits jumped to $85 million, partly due to lower cost of goods sold. Comparable restaurant sales rose 0.8% for the year, on a 2% higher average check. Comparable retail sales, in contrast, fell 0.9 % for the year.

Competitors

Analysts classified Cracker Barrel as a chain restaurant and counted among its competitors everyone from fast-food restaurants like McDonald’s, to sit-down restaurant companies such as DineEquity, owner of IHOP and Applebee’s, and Darden Restaurants, owner of Red Lobster, Olive Garden and the Capital Grille, among others. (See Exhibit 5 for the characteristics of all publicly listed restaurant companies in the Standard and Poor’s 1500 index).

One analysis sized the U.S. full-service restaurant chain industry with annual sales of about $55 billion in 2011; the analysis also stated the industry was saturated and had shrunk by 0.3% from 2006 to 2011. However, it projected annual sales growth of 3.1% through 2016.10 The analysis estimated that Cracker Barrel held a market share of 4.6% in the U.S.11 Given the maturity of the U.S. market, international expansion, particularly in Asia and the Middle East, could represent a “major source of revenue and profit growth” for chain restaurant companies.12

Biglari Challenges the Board

On June 13, 2011, Biglari burst onto the scene, revealing a nearly 10% ownership of Cracker Barrel stock in a Schedule 13D filing with the Securities and Exchange Commission (SEC). He reported the purpose of the transaction as planning “to evaluate [its] investment in the Shares on a continuous basis” and “to communicate with the Issuer’s management and members of the Board regarding the business, governance and future plans of the Issuer.”13

A flurry of governance announcements came soon after Biglari revealed his stake. On June 17, the company said it was adding a new board seat and filling it with Coleman Peterson, former human resources head of Wal-Mart Stores, Inc. On July 28, the company announced it added another board

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seat appointing James Bradford, dean of the business school at Vanderbilt University, director. Woodhouse resigned to become executive chairman and Cochran was promoted to CEO (effective September 12, 2011). Two directors, Robert Hilton and Jimmie White, who had served on the board 30 and 18 years, respectively, said they would not seek reelection at the December 2011 annual meeting. “These changes are the outcome of a deliberate succession process over the past two years to prepare Cracker Barrel to continue the successes of the past five years under a new generation of leadership,” Woodhouse said.14 Over the next two months, Cochran joined the board along with Bill McCarten, a retired hotelier, bringing the board size to 13. (See Exhibit 6 for biographies of incumbent and new directors.)

Meanwhile, Biglari had been active too. He sent a letter to Woodhouse on August 23, which carried a friendly salutation—he addressed it to “Dear Mike”—but a blunt message on the company’s lack of segment reporting. He wrote:

You would certainly be making a grave managerial blunder if you were failing to measure and master the operations of the duo of segments because of, say, a failure to apportion cost when assessing the performance of both the restaurant and the retail operations. . . . It is quite unimaginable and unconscionable if the Board has not reviewed segment data. If the Board has reviewed detailed numbers on both restaurant and retail operations, then, we ask, why would the Board members think that shareholders should not be entitled to the same privilege? If the Board has not done so, how can it be properly fulfilling its fiduciary duty? I believe you have taken the low road in accounting disclosure and have thereby set the wrong tone at the top, a demonstrable and clear marker of poor corporate governance.15

Biglari asked only for more detailed reporting, making no other public demands in the letter. Cracker Barrel responded with a brief press release saying that it complied with SEC rules.

Biglari announces a proxy fight

A week later, on September 1, Biglari Holdings filed a 14A with the SEC giving formal notice under Cracker Barrel’s bylaws that the firm was nominating Biglari to the board at the 2011 annual shareholder meeting. (Previously Biglari had asked for two board seats—one for him and one for Philip Cooley, vice chairman of Biglari Holdings. Behind the scenes negotiations between Biglari and the company had evidently broken down; it became known that the two sides had been talking since June and that in July members of the board had traveled to Texas to meet with Biglari. The board declined Biglari and Cooley seats on the board, stating worries about a conflict of interest. In August, Woodhouse had offered Biglari the opportunity to suggest two independent candidates for the board—with a condition: That neither of his nominees could be affiliated with a restaurant company because it could create a conflict of interest. Biglari rejected the offer.) Biglari accused Cracker Barrel’s board of having “no real skin in the game” because, collectively, they owned less Cracker Barrel stock than did Biglari Holdings.16 He said he would pursue a proxy fight if the company did not accede to his demand for a board seat.

This time, Cracker Barrel answered with a detailed rebuttal on the same day, questioning Biglari’s motives and qualifications and accusing Biglari of mistreating the shareholders of Biglari Holdings by trying to create two classes of stock, which would have secured his control of the company, and trying to overpay himself. Cracker Barrel also highlighted its ongoing management and board transition to new leadership. In addition the board wrote, “Never in Cracker Barrel’s 42-year history [has the company] included a director who was a director or officer of another restaurant company, and such appointments would violate the Company’s Corporate Governance Guidelines.”17

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The showdown was on.

Biglari’s critique

Biglari made clear that he was not backing down: In September 2011, he received anti-trust approval under the Hart-Scott-Rodino Act to acquire up to 49.99% of Cracker Barrel’s common stock. He also set up a website called Enhance Cracker Barrel, where he posted his SEC filings along with his letters to management and shareholders. The first of the shareholder letters, dated September 12, reiterated his complaints about the company’s accounting and the board’s lack of share ownership. He wrote, “. . . I have invested about $100 million in the stock of Cracker Barrel whereas the entire Board since 2003 has spent a total of $251,600 in purchasing stock in the open market,”18 and “. . . we are not challenging the Cracker Barrel concept, each store having both a restaurant operation and a retail operation under one roof. However, we are challenging management’s failure to provide detailed data on the two segments.”19

He chided Woodhouse and his team for “lackluster operating performance,” including “a failure to increase customer traffic in each of the last seven years.”20 He also chastised management for an “ill-advised” strategy of raising prices during the recession. He concluded that the strength of Cracker Barrel’s well-known brand had covered for the mistakes, adding: “The present proxy contest centers on placing a real owner on the board of a company with an A+ brand that has failed to produce A+ performance.”21

His critique arrived a day before Cracker Barrel reported its fiscal 2011 earnings on September 13. Sales had increased 1.2% over the prior year, while net income remained flat. Comparable restaurant traffic dropped by 2.0%; while comparable restaurant sales and comparable retail sales combined increased 0.2%. In a press release, Cochran said, “We are not satisfied with our sales and traffic results.” She added Cracker Barrel would introduce “more accessible entry price points on our menu” and underscored its affordability with a price-oriented marketing campaign.22

On September 23, the company moved to block Biglari from buying more stock on the open market. It adopted a shareholder rights plan, or poison pill. The poison pill would prevent a hostile investor from acquiring the company via open-market stock purchases without paying current shareholders a premium for control. Specifically, the plan gave existing shareholders the right to buy more shares if anyone acquired more than 10% of the company. The poison pill did not apply to fully financed all-cash offers, and the company stipulated that shareholders would have the right to approve or reject the plan at the annual meeting.

The poison pill may have stymied Biglari’s stock buying, but it failed to stem his communications with shareholders. In an early November letter, he fleshed out his critique and gave his recommendations for improving Cracker Barrel’s performance (see Exhibits 7 and 8). Biglari pointed out that per-restaurant customer traffic had declined under Woodhouse and that the company had obscured the trend by opening new restaurants. “Thus, the irony has been that capital expenditures, approved by the board, have increased overall sales, but have failed to increase overall profit,” he wrote.23 Operating income, at $167 million, was lower in fiscal 2011 than it had been in fiscal 2005, when it was $169 million. He called for a moratorium on opening new stores and suggested international franchising as a way to increase the reach and value of Cracker Barrel’s brand.

Biglari also redoubled his attacks on Cracker Barrel’s governance, arguing that the board was paying bonuses for mediocrity. He pointed out that the executive compensation plan provided for bonuses when operating income exceeded $90 million—a level Cracker Barrel had beaten in 1994 and had not fallen below since. Yet, as executives collected bonuses, shareholders suffered, he said. His

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evidence: The stock had failed to keep pace with the restaurant companies in the S&P 500, including Chipotle, McDonald’s and Yum! Brands. Cracker Barrel had a total return of 10.6% over the five years ending September 30, 2011, while the S&P restaurants had returned 103.4% over the same period. “Paying bonuses as shareholders suffer epitomizes a failed compensation program,” he wrote.24

Cracker Barrel Responds

Cracker Barrel, in various releases, contested all aspects of Biglari’s critique and raised concerns about Biglari himself. (See Exhibit 9 for a summary.) The company responded to complaints of declining customer traffic calling it industry-wide given the U.S. recession. The decision to raise prices, management said, was a conscious strategic decision to offset falling customer traffic. Cracker Barrel claimed that its return on invested capital (ROIC) of 15.5% over the trailing twelve months ending September 30, 2011 was higher than most of its peers. The board also noted that new stores returned 16.2% on invested capital. Biglari’s suggestion of a moratorium on new stores, they implied, was not wise considering the return from the new stores.

In addition the board continued to highlight the substantial change at the board and management level, citing the appointment of a new CEO and CFO, and three new independent directors. These changes, the board asserted, were the culmination of a two year management succession plan. Furthermore, Cochran launched a six-point plan with an aim to grow traffic, improve sales and profits and refined the pricing strategy. In dismissing the critique of executive pay, the board said it used appropriate discretion in setting pay. They provided the example of fiscal 2011, when bonus awards were only 91% of target and 45% of the maximum potential bonus despite the operating income being $165 million, far greater than the $90 million minimum threshold.

The company justified its decision not to invite Biglari on the board because of conflict of interest. Since Biglari was the CEO of Steak n Shake, which the board asserted was a competitor, it would expose sensitive matters on pricing, menu development, store location, growth plans and such business intelligence to a competitor. Inviting Biglari on the board might even violate federal antitrust laws.

The board reserved most scorn for what it called Biglari’s “poor track record of corporate governance.” The board suggested that Biglari had a history of making creeping acquisitions, i.e., slowly buying a controlling interest in a company and taking over the management, without paying target shareholders an acquisition premium. Biglari’s attempt to pursue a dual-class stocka structure at Biglari Holdings (which ultimately failed due to shareholder opposition) was cited as shareholder- unfriendly and indicated, according to the Cracker Barrel board, that Biglari did not himself pursue the highest standards of corporate governance.

Proxy Advisors Opine

In early December, 2011, a week before the annual meeting, Institutional Shareholder Services (ISS) and Glass Lewis & Co., both leading proxy advisory firms, weighed in on the matter.b

a In dual-class companies two classes of common stock were offered, one of which had superior voting rights.

b Proxy advisory firms provided advice to institutional investors on how to vote on proxy resolutions. Their advice was considered critical especially in deciding the outcomes of contested director elections and proxy fights.

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ISS

ISS said that shareholders should vote against Biglari. It agreed with Biglari that revenue gains had not translated to gains in operating income. However, ISS felt the company was on the right trajectory and that the executive succession plan was a positive sign and had been implemented even before Biglari had made his demands, implying that the board was executing on a thoughtful plan. Changes to the board were also a positive sign. ISS also felt that the company would be better advised to respond to Biglari using evidence from performance metrics, which they felt might support the case for a rebound in the company rather than attacking Biglari on why he would be a conflicted director if he were to be appointed to Cracker Barrel’s board. They concluded that “. . . there is little reason at this point to question the board’s embrace of its broad oversight role.”25

On the poison pill, ISS pointed out that it was a common protection against hostile takeovers and that courts had typically given boards discretion in their use. But it noted that Cracker Barrel’s 10% trigger was low enough to deter investors without hostile intent. ISS pointed out that a threshold in the vicinity of 20% could provide the same protection while being less restrictive; consequently, ISS recommended shareholders vote against the measure.

Glass Lewis

Glass Lewis, however, came down in favor of Biglari, saying shareholders should vote him onto the board. It agreed with Biglari that the company’s stock had underperformed during the short and medium terms and had shown “stagnant or declining operational performance.”26 (See Exhibit 10 for Cracker Barrel financial statements, Exhibit 11 for store level performance, Exhibits 12 to 17 for financial metrics of Cracker Barrel and other restaurant companies.)

Cochran had begun to make changes aimed at improving performance but Glass Lewis dismissed them as “too little too late” and speculated that they were, in part, reactions to Biglari’s campaign.27 Long director tenures were a sign of board entrenchment, furthered Glass Lewis. Where Glass Lewis did agree with ISS was the poison pill. As a rule, Glass Lewis said, poison pills undermined good corporate governance and limited management accountability. The firm opposed it.

The Vote

ISS’s and Glass Lewis’s reports left shareholders with a week to decide how to vote their proxies. Should they heed Biglari, and Glass Lewis, and elect him to Cracker Barrel’s board, aware that that might be a prelude to his acquiring the company? Or should they stand behind management, supported by ISS, and endorse the strategy to which Woodhouse and Cochran had committed? Separately, shareholders had to consider the poison pill. Was it, as the company had argued, a necessary protection against a creeping takeover by Biglari or someone else? Or was it a burdensome restriction on investors and an abuse of shareholder rights?

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Exhibit 1 Brief Description of Biglari Holdings Inc.

Biglari Holdings included three major wholly-owned subsidiaries: Biglari Capital Corp., Western Sizzlin Corp. and Steak n Shake Operations, Inc. Steak n Shake, founded in 1934 in Normal, Illinois, a classic American brand serving premium burgers and milk shakes, operated 413 company-owned restaurants and 76 franchised units in 22 states; Western operated 5 company-owned restaurants and 89 franchised units in 17 states. Founded in 1962 in Augusta, Georgia, Western Sizzlin offered signature steak dishes as well as other classic American menu items. Western Sizzlin also operated other concepts, Great American Steak & Buffet, and Wood Grill Buffet which provided hot and cold food buffet style dining. Biglari Holdings had revenues of $709 million in 2011 with net income of $34.6 million.

Source: Biglari Holdings Inc. 2011 10-K Report, p. 1, at http://www.biglariholdings.com/financials/AnnualReport2012.pdf#zoom=100, accessed October 28, 2013.

Exhibit 2 Cracker Barrel Stores

Source: Cracker Barrel 2013, Annual Report, http://files.shareholder.com/downloads/CBRL/2902510947x0x694453/E5100B90-72DB-40A3-B8CF- CC8E73A38836/2013_Annual_Report.pdf, accessed January 13, 2014.

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