Attached files
| file | filename |
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| EX-3.1 - CERTIFICATE OF DESIGNATION - BARNES & NOBLE INC | ex3-1.htm |
| EX-4.1 - RIGHTS AGREEMENT - BARNES & NOBLE INC | ex4-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported):
November 18, 2009 (November 17, 2009)
November 18, 2009 (November 17, 2009)
BARNES
& NOBLE, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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1-12302
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06-1196501
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(State
or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification
No.)
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122
Fifth Avenue, New York, New York
(Address
of principal executive offices)
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10011 (Zip
Code) |
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Registrant’s
telephone number, including area code:
(212)
633-3300
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(Former
name or former address, if changed since last report.)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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□
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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□
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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□
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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□
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01. Entry into a Material Definitive
Agreement.
The Board
of Directors (the “Board”) of
Barnes & Noble, Inc. (the “Company”) declared a dividend, payable
to stockholders of record on November 27, 2009 (the “Record Date”), of one right (a “Right”) per each share of outstanding
Common Stock of the Company, par value $0.001 per share (“Common Stock”), to purchase 1/1,000th of a share
of Series I Preferred Stock, par value $0.001 per share, of the Company (the
“Preferred Stock”), at a price
of $100.00 per share (such amount, as may be adjusted from time to time as
provided in the Rights Agreement, the “Purchase Price”). In
connection therewith, on November 17, 2009, the Company entered into a Rights
Agreement, dated November 17, 2009 (as the same may be amended from time to
time, the “Rights Agreement”) with Mellon Investor Services LLC, as Rights Agent
(the “Rights
Agent”).
The
following summary of the Rights Agreement is a general description only and is
qualified in its entirety by the full text of the Rights Agreement which is
attached as Exhibit 4.1 hereto and incorporated by reference
herein.
Effectiveness. The
Rights Agreement became effective on November 17, 2009 (the “Effective Date”). Upon and
following the Effective Date, Rights will be issued in respect of all
outstanding shares of Common Stock on the Record Date, and for all shares of
Common Stock issued after the Record Date and, subject to the next
sentence, prior to the earliest of the Distribution Date (as defined below), the
redemption of the Rights or the Expiration Date (as defined
below). Rights may be distributed with respect to shares of Common
Stock issued after the Distribution Date only in certain limited circumstances
as described in the Rights Agreement (such as the issuance of Common Stock
pursuant to stock options, employee compensation or benefit plans and
convertible securities).
Term. The
Rights will expire on the third anniversary of the date the Rights Agreement is
entered into (the “Expiration
Date”), unless earlier
redeemed or canceled by the Company as provided below.
Exercisability. Initially,
the Rights will not be exercisable. The Rights will become
exercisable upon the earlier of the following dates (such date, the “Distribution Date”):
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·
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such
date the Company learns that a person or group (including any affiliates
or associate of such person or group) has acquired, or obtained the right
to acquire, beneficial ownership (as defined in the Rights Agreement) of
more than 20% of the outstanding Common Stock of the Company (or, in the
case of any person with beneficial ownership of more than 20% at the time
the Rights Agreement is entered into, any additional Common Stock is
acquired by such person (except upon exercise of certain stock options or
vesting of restricted shares)) (any person or group specified in the
foregoing bullet point, an “Acquiring Person”);
and
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·
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such
date, if any, as may be designated by the Board following the commencement
of, or first public disclosure of an intention to commence, a tender or
exchange offer for outstanding Common Stock which could result in a person
or group becoming the beneficial owner of more than 20% of the outstanding
Common Stock of the Company.
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Rights Certificates and
Detachability. Prior to the Distribution Date, the Rights will
be represented by the certificates for shares of Common Stock, and the Rights
will be transferable only with the related Common Stock certificates and will be
automatically transferred with any transfer of the related Common
Stock. After the Distribution Date, the Rights will “detach” from the
Common Stock and will be separately transferable.
Terms of Preferred
Stock. The terms of the Preferred Stock issuable upon exercise
of the Rights are designed so that each 1/1,000th of a share of Preferred Stock
is entitled to participate in dividends and other distributions on an equivalent
basis with one whole share of the Common Stock of the Company. In
addition, the Preferred Stock has certain minimum dividend and liquidation
rights. The terms of the Preferred Stock do not include the right to
vote.
Dilution
Adjustments. The amount of Preferred Stock issuable upon
exercise of the Rights is subject to adjustment by the Board in the event of any
change in the Common Stock or Preferred Stock, whether by reason of stock
dividends, stock splits, reclassifications, recapitalizations, mergers,
consolidations, combinations or exchanges of securities, split-ups, split-offs,
spin-offs, liquidations, other similar changes in capitalization, any
distribution or issuance of assets, evidences of indebtedness or subscription
rights, options or warrants to holders of Common Stock, Preferred Stock or
otherwise.
The Flip-In
Provision. Subject to future amendment of the Rights
Agreement, at such time as any person or group becomes an Acquiring
Person, the holder of each Right will thereafter have the right to receive, upon
exercise of the Right and the payment of the Purchase Price, that number of
1/1,000ths of a share of Preferred Stock equal to the number of shares of Common
Stock which at the time of the applicable triggering transaction would have a
market value of twice the Purchase Price. However, any Rights that
are or previously were beneficially owned by an Acquiring Person, on or after
the Distribution Date, will become null and void and will not be subject to the
“flip-in” provision.
The Flip-Over
Provision. In the event the Company is acquired in a merger or
other business combination by an Acquiring Person, or 50% or more of the
Company’s assets are sold to an Acquiring Person, each Right will entitle its
holder to purchase common shares in the surviving entity at 50% of market price
(subject to exceptions if the surviving entity does not have common shares
registered under the Exchange Act of 1934, as further described in the Rights
Agreements). As with the “flip-in” provision, any Rights that are or
previously were beneficially owned by an Acquiring Person on or after the
Distribution Date will become null and void.
Exchange. After any
person or group becomes an Acquiring Person, the Board may elect to exchange
each Right (other than Rights owned by an Acquiring Person) for consideration
per Right consisting of one-half of the Preferred Stock (or fraction thereof)
securities that would be issuable at such time upon the exercise of one Right
pursuant to the terms of the Rights Agreement (or, under certain circumstances,
an equivalent value in cash, shares of Common Stock or other
securities).
Redemption. The
Rights are redeemable by the Board at a redemption price of $0.001 per Right
(the “Redemption Price”) any
time prior to the earlier of (i) the Distribution Date and (ii) the Expiration
Date. Immediately upon the action of the Board ordering the
redemption of the Rights, and without any further action and without any notice,
the right to exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
Amendment. At
any time prior to such time as any person or group becomes an Acquiring
Person, the Company may, without the approval of any holder of the Rights,
supplement or amend any provision of the Rights Agreement (including the date on
which a Distribution Date shall occur, the amount of the Purchase Price, the
definition of “Acquiring Person” or the time during which the Rights may be
redeemed), except that no supplement or amendment may be made which extends the
date on which the Expiration Date shall occur or reduces the Redemption Price of
the Rights.
Voting. Until
a Right is exercised, the holder thereof, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote or
to receive dividends.
Item
3.03. Material
Modification to Rights of Security Holders
The
information set forth under “Item 1.01. Entry into a Material Definitive
Agreement” of this Current Report on Form 8-K is incorporated into this
Item 3.03 by reference.
Item
9.01. Financial
Statements and Exhibits
(d) The
following exhibits are filed as a part of this Report.
| Exhibit No. | Description |
| 3.1 |
Form
of Certificate of Designation, dated as of November 17,
2009.
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| 4.1 |
Rights
Agreement, dated as of November 17, 2009, between Barnes & Noble, Inc.
and Mellon Investor Services LLC, as Rights
Agent.
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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.
| BARNES & NOBLE, INC. | |||
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Date:
November 18, 2009
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By:
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/s/ Joseph J. Lombardi | |
| Name: Joseph J. Lombardi | |||
| Title: Chief Financial Officer | |||
Exhibit
Index
| Exhibit No. | Description |
| 3.1 |
Form
of Certificate of Designation, dated as of November 17,
2009.
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| 4.1 |
Rights
Agreement, dated as of November 17, 2009, between Barnes & Noble, Inc.
and Mellon Investor Services LLC, as Rights
Agent.
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