Biglari Holdings Inc. 10-K/A

bh-20211231 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K/A (Amendment No. 1) x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2021 or ¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ____ to ____ Commission file number 001-38477 BIGLARI HOLDINGS INC. (Exact name of registrant as specified in its charter) Indiana 82-3784946 (State or other jurisdiction of incorporation) (I.R.S. Employer Identification No.) 17802 IH 10 West, Suite 400 San Antonio, Texas 78257 (Address of principal executive offices) (Zip Code) ( 210 ) 344-3400 Registrant’s telephone number, including area code Securities registered pursuant to Section 12(b) of the Act: Title of each class Trading Symbols Name of each exchange on which registered Class A Common Stock, no par value BH.A New York Stock Exchange Class B Common Stock, no par value BH New York Stock Exchange Securities registered pursuant to Section 12(g) of the Act: NONE Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨ Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (Section 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes x No ¨ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one): Large accelerated filer ¨ Accelerated filer x Non-accelerated filer ¨ Smaller reporting company ¨ Emerging growth company ¨ If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨ Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. x Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x The aggregate market value of the voting and non-voting common stock held by non-affiliates of the registrant as of June 30, 2021 was approximately $ 173,487,448 . Number of shares of common stock outstanding as of February 21, 2022: Class A common stock – 206,864 Class B common stock – 2,068,640 DOCUMENTS INCORPORATED BY REFERENCE None Table of Contents Page PART IV Item 15. Exhibits and Financial Statement Schedules 1 Independent Auditors’ Report (PCAOB ID No 34 ) Signatures 12 Index to Exhibits 13 EXPLANATORY NOTE This Amendment No. 1 on Form 10-K/A (the “Amendment”) amends the Annual Report on Form 10-K of Biglari Holdings Inc. (“Biglari Holdings”, “we”, “us”, “our”, the “Company” or the “Corporation”) for the fiscal year ended December 31, 2021, originally filed with the Securities and Exchange Commission (the “SEC”) on February 28, 2022 (the “Original Filing”), to include separate audited financial statements of The Lion Fund II, L.P. (the “Lion Fund II”) pursuant to Rule 3-09 of Regulation S-X (“Rule 3-09”) in Part IV, Item 15. The audited financial statements of the Lion Fund II (the “Lion Fund II Financial Statements”) were not available at the time of the Original Filing. In accordance with Rule 3-09(b)(2), the Lion Fund II Financial Statements are being filed as an amendment to the Original Filing within 90 days after the end of the Lion Fund II’s fiscal year. In addition, in connection with the filing of this Amendment and pursuant to the rules of the SEC, we are including with this Amendment certain currently dated certifications. Accordingly, Item 15 of Part IV has also been amended to reflect the filing of these currently dated certifications. This Form 10-K/A does not attempt to modify or update any other disclosures set forth in the Original Filing, except as required to reflect the additional information included in Part IV, Item 15 of this Form 10-K/A. Additionally, this Form 10-K/A, except for the additional information included in Part IV, speaks as of the filing date of the Original Filing and does not update or discuss any other Company developments subsequent to the date of the Original Filing. Accordingly, this Form 10-K/A should be read in conjunction with our filings made with the SEC subsequent to the Original Filing. Table of Contents Item 15. Exhibits and Financial Statement Schedules INDEPENDENT AUDITORS’ REPORT To the Partners of The Lion Fund II, L.P. San Antonio, Texas Opinion We have audited the financial statements of The Lion Fund II, L.P. (a Delaware Limited Partnership) (the “Fund”), which comprise the statement of assets and liabilities as of December 31, 2021 and 2020, and the related statements of operations, changes in partners’ capital, and cash flows for the years ended, December 31, 2021, 2020, and 2019 and the related notes to the financial statements (collectively referred to as the “financial statements”). In our opinion, the accompanying financial statements present fairly, in all material respects, the financial position of The Lion Fund II as of December 31, 2021 and 2020, and the results of its operations, changes in partners’ capital, and its cash flows for the years then ended December 31, 2021, 2020, and 2019 in accordance with accounting principles generally accepted in the United States of America. Basis for Opinion We conducted our audits in accordance with auditing standards generally accepted in the United States of America (GAAS). Our responsibilities under those standards are further described in the Auditor’s Responsibilities for the Audit of the Financial Statements section of our report. We are required to be independent of the Company and to meet our other ethical responsibilities, in accordance with the relevant ethical requirements relating to our audits. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion. Responsibilities of Management for the Financial Statements Management is responsible for the preparation and fair presentation of the financial statements in accordance with accounting principles generally accepted in the United States of America, and for the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error. In preparing the financial statements, management is required to evaluate whether there are conditions or events, considered in the aggregate, that raise substantial doubt about the Company’s ability to continue as a going concern for one year after the date that the financial statements are issued. Auditor’s Responsibilities for the Audit of the Financial Statements Our objectives are to obtain reasonable assurance about whether the financial statements as a whole are free from material misstatement, whether due to fraud or error, and to issue an auditor’s report that includes our opinion. Reasonable assurance is a high level of assurance but is not absolute assurance and therefore is not a guarantee that an audit conducted in accordance with GAAS will always detect a material misstatement when it exists. The risk of not detecting a material misstatement resulting from fraud is higher than for one resulting from error, as fraud may involve collusion, forgery, intentional omissions, misrepresentations, or the override of internal control. Misstatements are considered material if there is a substantial likelihood that, individually or in the aggregate, they would influence the judgment made by a reasonable user based on the financial statements. In performing an audit in accordance with GAAS, we: • Exercise professional judgment and maintain professional skepticism throughout the audit. 1 • Identify and assess the risks of material misstatement of the financial statements, whether due to fraud or error, and design and perform audit procedures responsive to those risks. Such procedures include examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. • Obtain an understanding of internal control relevant to the audit in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control. Accordingly, no such opinion is expressed. • Evaluate the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluate the overall presentation of the financial statements. • Conclude whether, in our judgment, there are conditions or events, considered in the aggregate, that raise substantial doubt about the Company’s ability to continue as a going concern for a reasonable period of time. We are required to communicate with those charged with governance regarding, among other matters, the planned scope and timing of the audit, significant audit findings, and certain internal control-related matters that we identified during the audit. /s/ DELOITTE & TOUCHE LLP Indianapolis, Indiana March 31, 2022 2 Table of Contents THE LION FUND II, L.P. (A Delaware Limited Partnership) STATEMENT OF ASSETS AND LIABILITIES December 31, 2021 December 31, 2020 ASSETS: Investments in securities — at fair value $ 534,365,480 $ 460,785,669 Cash and cash equivalents 29,656,370 105,877,306 Total assets $ 564,021,850 $ 566,662,975 LIABILITIES: Due to broker $ 100,384,135 $ — Investments sold short — at fair value 29,922,480 23,554,440 Derivatives — at fair value 55,855 1,807,518 Accounts payable 54,313 91,413 Total liabilities $ 130,416,783 $ 25,453,371 PARTNERS’ CAPITAL $ 433,605,067 $ 541,209,604 See notes to financial statements. 3 Table of Contents THE LION FUND II, L.P. (A Delaware Limited Partnership) STATEMENT OF OPERATIONS FOR THE YEARS ENDED DECEMBER 31, 2021, 2020 AND 2019 2021 2020 2019 INVESTMENT INCOME: Dividends and interest $ 4,508,351 $ 7,057,996 $ 31,829,049 EXPENSES: Professional fees 44,000 185,413 187,220 Interest expense 820,530 1,103,146 7,039,956 Other expense 1,137 — — NET INVESTMENT INCOME 3,642,684 5,769,437 24,601,873 REALIZED AND UNREALIZED GAINS (LOSSES): Net realized gains from investments 13,236,938 11,123,194 185,900,988 Net change in unrealized appreciation - investments 23,740,919 (66,724,702) (131,898,804) NET INCREASE (DECREASE) IN PARTNERS' CAPITAL RESULTING FROM OPERATIONS $ 40,620,541 $ (49,832,071) $ 78,604,057 See notes to financial statements. 4 Table of Contents THE LION FUND II, L.P. (A Delaware Limited Partnership) STATEMENT OF CHANGES IN PARTNERS' CAPITAL FOR THE YEARS ENDED DECEMBER 31, 2021, 2020 AND 2019 General Partner Limited Partners Total PARTNERS' CAPITAL - December 31, 2018 $ 48,990,763 $ 649,989,427 $ 698,980,190 Capital contributions — 40,000,000 40,000,000 Capital distributions (14,135,000) (159,425,000) (173,560,000) Net increase from operations 4,611,853 73,992,204 78,604,057 PARTNERS' CAPITAL - December 31, 2019 $ 39,467,616 $ 604,556,631 $ 644,024,247 Capital contributions — 62,130,003 62,130,003 Capital distributions (14,762,572) (100,350,003) (115,112,575) Net decrease from operations (6,156,302) (43,675,769) (49,832,071) Performance fee 986,561 (986,561) — PARTNERS' CAPITAL - December 31, 2020 $ 19,535,303 $ 521,674,301 $ 541,209,604 Capital contributions — 12,300,000 12,300,000 Capital distributions (400,000) (160,125,078) (160,525,078) Net increase from operations 1,507,875 39,112,666 40,620,541 Performance fee — — — PARTNERS' CAPITAL - December 31, 2021 $ 20,643,178 $ 412,961,889 $ 433,605,067 See notes to financial statements. 5 Table of Contents THE LION FUND II, L.P. (A Delaware Limited Partnership) STATEMENT OF CASH FLOWS FOR THE YEARS ENDED DECEMBER 31, 2021, 2020 AND 2019 2021 2020 2019 CASH FLOWS FROM OPERATING ACTIVITIES: Net increase (decrease) in partners' capital resulting from operations $ 40,620,541 $ (49,832,071) $ 78,604,057 Adjustments to reconcile net increase (decrease) in partners' capital resulting from operations to net cash provided by operating activities: Net realized gains from investments (13,236,938) (11,123,194) (185,900,988) Net change in unrealized appreciation - investments (23,740,919) 66,724,702 131,898,804 Proceeds from sale of investments 44,804,123 106,114,804 416,063,175 Purchases of investments in securities (76,789,700) (116,304,051) (28,386,587) Amortization of loan origination fees — — 327,181 Changes in due to broker 100,384,135 — — Changes in interest payable — (370,215) (483,427) Changes in receivables — 19,889,744 (19,889,744) Changes in accounts payable (37,100) 49,413 (107,987) Net cash provided by operating activities 72,004,142 15,149,132 392,124,484 CASH FLOWS FROM FINANCING ACTIVITIES: Contributions from partners 12,300,000 62,130,003 40,000,000 Distributions to partners (160,525,078) (103,910,003) (183,560,000) Payments of long-term debt — (112,000,000) (88,000,000) Net cash used in financing activities (148,225,078) (153,780,000) (231,560,000) NET INCREASE (DECREASE) IN CASH (76,220,936) (138,630,868) 160,564,484 CASH and CASH EQUIVALENTS - Beginning of year 105,877,306 244,508,174 83,943,690 CASH and CASH EQUIVALENTS - End of year $ 29,656,370 $ 105,877,306 $ 244,508,174 See notes to financial statements. 6 Table of Contents THE LION FUND II, L.P. (A Delaware Limited Partnership) CONDENSED SCHEDULE OF INVESTMENTS AS OF DECEMBER 31, 2021: Shares Amount INVESTMENTS IN COMMON STOCK AT FAIR VALUE: United States: Diversified: Biglari Holdings Inc. Class A common stock (13.4%) 83,465 $ 58,008,175 Biglari Holdings Inc. Class B common stock (29.3%) 890,272 126,926,079 Restaurant: Cracker Barrel Old Country Store, Inc. (59.3%) 2,000,000 257,280,000 Financial: Berkshire Hathaway Class A common stock (10.4%) 100 45,066,200 Other securities (10.9%) 47,085,026 TOTAL SECURITIES OWNED (cost $602,113,996) (123.2%) $ 534,365,480 As of December 31, 2021, The Lion Fund II, L.P. held $29,922,480 (6.9%) in short positions tied to its arbitrage operation. Percentages shown are computed based on the classification value compared to partners' capital at December 31, 2021. AS OF DECEMBER 31, 2020: Shares Amount INVESTMENTS IN COMMON STOCK AT FAIR VALUE: United States: Diversified: Biglari Holdings Inc. Class A common stock (8.3%) 76,707 $ 44,873,595 Biglari Holdings Inc. Class B common stock (16.8%) 816,360 90,779,232 Restaurant: Cracker Barrel Old Country Store, Inc. (48.8%) 2,000,000 263,840,000 Financial: Berkshire Hathaway Class A common stock (8.0%) 125 43,476,875 Other securities (3.3%) 17,815,967 TOTAL SECURITIES OWNED (cost $560,617,885) (85.1%) $ 460,785,669 As of December 31, 2020, The Lion Fund II, L.P. held $23,554,440 (4.4%) in short positions tied to its arbitrage operation. Percentages shown are computed based on the classification value compared to partners' capital at December 31, 2020. See notes to financial statements. 7 Table of Contents THE LION FUND II, L.P. (A Delaware Limited Partnership) NOTES TO FINANCIAL STATEMENTS FOR THE YEARS ENDED DECEMBER 31, 2021, 2020 AND 2019 1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES The Lion Fund II, L.P. (the “Fund”) is an investment fund organized as a limited partnership under the laws of the State of Delaware. The Fund is managed by Biglari Capital Corp. (the “General Partner”). The Fund commenced operations in July 2013 to provide investors with a professionally managed fund with the objective of achieving above-average, long-term growth of capital. In meeting this objective, the Fund will seek to find investments that the General Partner believes offer exceptional value. Basis of Accounting — The accompanying financial statements of the Fund have been presented on the accrual basis of accounting, in accordance with generally accepted accounting principles (“GAAP”). The Fund is an investment company and therefore complies with accounting and reporting guidance presented in Accounting Standards Codification 946, Financial Services – Investment Companies . Investments in Securities — Security transactions are accounted for on the date the securities are purchased or sold (trade date). Gains or losses from sales of investments are computed on the specific identification basis. Dividend income is recorded on the ex-dividend date. Interest income is recorded on the accrual basis. Exchange-listed securities are valued at the last sale price on the principal exchange on which they are traded. Income Taxes — In accordance with federal income tax regulations, no income taxes are levied on a partnership, but rather on the individual partners. Consequently, no provision or liability for federal income taxes has been reflected in the accompanying financial statements. There were neither liabilities nor deferred tax assets relating to uncertain income tax positions taken or expected to be taken on the tax returns. The Fund has reviewed open tax years and has concluded that there is no significant tax liability resulting from uncertain tax provisions. 2020, 2019 and 2018 remain open for both federal and state jurisdictions. Cash and Cash Equivalents — Any highly liquid investments with a maturity of three months or less at the date of acquisition are considered cash equivalents. The cash and cash equivalent balances as of December 31, 2021 and 2020 represent cash held by the custodians of the Fund’s investments. Use of Estimates — The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. 8 Table of Contents Allocation of Net Increase (Decrease) from Operations — The Fund’s income and losses, including unrealized gains or losses and realized gains or losses from the sale of investments, are allocated to the partners in proportion to their respective capital accounts as of the end of each month. Due to Broker — Due to broker represents margin debit balances. 2. CONCENTRATIONS OF CREDIT RISK The Fund does not clear its own securities transactions. It has established accounts with financial institutions for this purpose. This can, and often does, result in concentration of credit risk with one or more of these firms. Such risk, however, is mitigated by the obligation of U.S. financial institutions to comply with rules and regulations governing broker/dealers and futures commission merchants. These rules and regulations generally require maintenance of net capital, as defined, and segregation of customers’ funds and securities from holdings of the firm. 3. RELATED-PARTY TRANSACTIONS The General Partner is entitled to receive a performance reallocation of 25% of the increase in net assets annually. This reallocation is subject to a 6% performance hurdle rate that the Fund’s performance must exceed in order for the General Partner to be entitled to such reallocation. Additionally, this reallocation is subject to a high-water mark provision. The General Partner did not earn a performance reallocation during 2021. The General Partner earned a performance reallocation of $986,561 during 2020. Sardar Biglari is the Chairman, Chief Executive Officer and sole owner of the General Partner. Mr. Biglari is also the Chairman and Chief Executive Officer of Biglari Holdings Inc. (“Biglari Holdings”). Biglari Holdings is a limited partner in the Fund and is subject to a performance reallocation. During 2021, the Fund purchased 6,758 shares of Biglari Holdings Class A common stock and 73,912 shares of Biglari Holdings Class B common stock. The Fund did not distribute any shares of Biglari Holdings Class A common stock or Biglari Holdings Class B common stock to the General Partner during 2021. During 2020, the Fund purchased 5,770 shares of Biglari Holdings Class A common stock and 106,983 shares of Biglari Holdings Class B common stock. Also during 2020, the Fund distributed 1,684 shares of Biglari Holdings Class A common stock and 16,841 shares of Biglari Holdings Class B common stock to the General Partner. There were no purchases or distributions of Biglari Holdings common stock in 2019. The General Partner of the Fund also serves as the General Partner of The Lion Fund, L.P. The Lion Fund, L.P. is a limited partner in the Fund and is not subject to a performance reallocation. 9 Table of Contents 4. FAIR VALUE MEASUREMENTS Exchange-listed securities are valued at the last sale price on the principal exchange on which they are traded. Level 1 securities in accordance with the GAAP established fair value hierarchy are based on unadjusted quoted prices in active markets for identical assets and liabilities. As of December 31, 2021 and 2020, total securities were $534,365,480 and $460,785,669, respectively. As of December 31, 2021 and 2020, derivative balances were liabilities of $55,855 and $1,807,518, respectively. As of December 31, 2021 and 2020, short positions were liabilities of $29,922,480 and $23,554,440, respectively. The securities, derivatives and short positions are classified as Level 1 inputs within the GAAP established hierarchy. 5. SUBSEQUENT EVENTS We have evaluated subsequent events for recognition or disclosure through the time of issuance of these financial statements on March 31, 2022. 6. FINANCIAL HIGHLIGHTS 2021 2020 2019 Total return before performance reallocation 7.43 % (6.73) % 11.99 % Performance reallocation 0.00 (0.18) 0.00 Total return after performance reallocation 7.43 % (6.91) % 11.99 % Supplemental Data 2021 2020 2019 Annual gross partnership return 9.91 % (7.92) % 12.93 % Annual net partnership return 9.70 % (8.13) % 11.84 % Total return for limited partners is calculated for the limited partners as a whole and is measured by dividing the increase or decrease in net assets, net of the expenses and performance reallocation to the General Partner, into the weighted average limited partners’ capital measured at the end of each month. An individual limited partner’s return may vary from these returns based on the timing of capital transactions. 10 Table of Contents Gross partnership return is calculated for the Fund as a whole and is measured by dividing the total increase or decrease in net assets, before expenses, into the weighted average partners’ capital measured at the end of each month. The net partnership return is calculated in similar fashion, after expenses. 2021 2020 2019 Ratio to average partners' capital: Expenses before performance reallocation 0.18 % 0.26 % 1.01 % Performance reallocation 0.00 0.21 0.00 Expenses including performance reallocation 0.18 % 0.47 % 1.01 % Net investment income 0.74 % 1.17 % 3.45 % Average partners’ capital is determined using the Fund’s partners’ capital measured at the end of each month. The performance reallocation to the General Partner is not included in the net investment income ratio. Expenses include accounting fees, interest and other expenses. Net investment income is computed as investment income from dividends and interest, less expenses. 11 Table of Contents SIGNATURES Pursuant to the requirements of Section 13 or 15(d) 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, on March 31, 2022. BIGLARI HOLDINGS INC. By: /s/ Bruce Lewis Bruce Lewis Controller Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities indicated, on March 31, 2022. Signature Title /s/ SARDAR BIGLARI Chairman of the Board and Chief Executive Officer (Principal Executive Officer) Sardar Biglari /s/ BRUCE LEWIS Controller (Principal Financial and Accounting Officer) Bruce Lewis /s/ JOHN G. CARDWELL Director John G. Cardwell /s/ PHILIP COOLEY Director – Vice Chairman Philip Cooley /s/ KENNETH R. COOPER Director Kenneth R. Cooper /s/ RUTH J. PERSON Director Ruth J. Person /s/ EDMUND B. CAMPBELL, III Director Edmund B. Campbell, III 12 Table of Contents INDEX TO EXHIBITS Exhibit Number Description 31.01 Rule 13a-14(a)/15d-14(a) Certification of Chief Executive Officer 31.02 Rule 13a-14(a)/15d-14(a) Certification of Controller 32.01 Section 1350 Certifications 99.01 Consent of The Lion Fund II, L.P. 104 Cover page Interactive Data File (embedded within the Inline XBRL document) The Lion Fund II Financial Statements are filed under Item 15(c). 13