Law
Offices
Baker,
Donelson, Bearman, Caldwell & Berkowitz
A
PROFESSIONAL CORPORATION
COMMERCE
CENTER • SUITE 1000
211
COMMERCE STREET
Nashville,
Tennessee 37201
(615)
726-5600
Facsimile
(615)
726-0464
FACSIMILE
TRANSMISSION FORM
PLEASE
DELIVER IMMEDIATELY
DATE / TIME: MAY 18,
2009 / 03:24 PM
|
DELIVER
TO:
|
COMPANY:
|
FAX
NO.:
|
PHONE
NO.:
|
|
Matthew
Spitzer
|
Securities
and Exchange Commission
|
703-813-6967
|
202-551-3227
|
|
FROM:
|
Gary
M. Brown
|
|
PHONE
NO.:
|
615.726.5763
|
|
FAX
NO.:
|
615.744.5763
|
|
RE:
|
Cracker
Barrel Old Country Store, Inc.
File
No. 000-25225
|
|
CLIENT/MATTER
NO.:
|
2789827-000067
|
|
MESSAGE:
Matt:
Thank you for your voicemail. Before
finalizing our response, I thought that I would fax to you our draft to
ensure that we are in agreement. If there are any questions, please
give me a call. Thank you for your time.
Gary Brown
|
Note:
This facsimile contains PRIVILEGED and CONFIDENTIAL information intended only
for the use of the specific individual or entity named above. If you
or your employer are not the intended recipient, you are hereby notified that
any unauthorized dissemination or copying of this facsimile or the information
contained in it is strictly prohibited. If you have received this
facsimile in error, please immediately notify the person named above at once by
telephone and return the original facsimile to us at the above address via the
U.S. Postal Service. Thank you.
Unless
otherwise expressly stated, nothing in this cover sheet or in any attachment
hereto is intended to or can be used by any recipient to avoid the imposition of
federal tax penalties.
Page
1 of 2
Mr. Max
A. Webb
United States Securities and Exchange Commission
May ___, 2009
single-line
business creates an environment where past internal performance target
disclosure will create competitive harm warranting FOIA exemption. To
receive confidentiality protection from performance target disclosure
obligations, you must demonstrate specific casual connections between the
disclosure of individual targets and the ability for a competitor to discern
corresponding internal operating measures. Accordingly, please
provide more specific analysis showing how disclosure of your prior internal
performance targets would enable deductive quantification of confidential
material more easily than with respect to other companies or confirm that you
will disclose targets as requested in our previous comment.
|
Response to
Comment:
|
We
have previously confirmed to you and again confirm, that in future filings, the
Company will disclose the specific performance targets used to determine annual
bonus and long-term incentive payouts, to the extent that such information does
not constitute commercial or financial information that is privileged or
confidential within the meaning of Exemption 4 of the Freedom of Information
Act, as discussed in our letter of March 23, 2009. The Company further
confirms that to the extent it is appropriate to omit specific performance
targets in future filings, the Company will discuss how likely it will be for
the Company to achieve the target levels.
The
Company acknowledges the Commission's position with respect to the historical
targets used to determine payouts under its annual bonus and long-term incentive
plans. Accordingly, as stated in my recent conversation with Matthew
Spitzer, the following example illustrates how the Company anticipates that its
disclosure with respect to the payouts under the 2009 Annual Bonus Plan will
appear in its upcoming proxy materials:
|
The
performance matrix established for the 2009 annual bonus plan required, in
order for executive officers to receive any bonus, that our 2009 operating
income exceed 85% of plan, which was $__________. Our 2009 was $X,
resulting in each executive receiving Y% of his/her target bonus.
Those 2009 annual bonuses are reflected in the "Non-Equity Incentive Plan
Compensation" column of the Summary Compensation Table on page ___ of this
proxy statement.
|
|
|
* *
* * *
|
On behalf of the Company, the Company
acknowledges that (i) it is responsible for the adequacy and accuracy of the
disclosure in the filing; (ii) staff comments or changes to disclosure in
response to staff comments in the filing reviewed by the staff do not foreclose
the Commission from taking any action with respect to the filing; and (iii) the
Company may not assert staff comments as a defense in any proceeding initiated
by the Commission or any person under the federal securities laws of the United
States.
Please feel free to contact me with
respect to this response.
-2-