ex4-1.htm


    Exhibit 4.1

     

     

     

    
      FIRST
AMENDMENT (this “Amendment”) dated as
of February 17, 2010, to the RIGHTS AGREEMENT dated as of November 17, 2009 (the
“Rights
Agreement”), between BARNES & NOBLE, INC., a Delaware corporation
(the “Company”), and MELLON
INVESTOR SERVICES LLC, a New Jersey limited liability company, as Rights Agent
(the “Rights
Agent”).

       

      WHEREAS
the Company may from time to time supplement or amend the Rights Agreement in
accordance with the provisions of Section 26 thereof; and

       

      WHEREAS
the Company desires to amend certain provisions of the Rights Agreement as set
forth herein.

       

      NOW,
THEREFORE, in consideration of the foregoing and the mutual agreements set forth
in the Rights Agreement and this Amendment, the parties hereto hereby agree as
follows:

       

      SECTION
1.  Amendment of Section
1. Section 1 of the Rights Agreement is hereby amended by deleting the
definition of “Acquiring Person” in
its entirety and inserting the following in place thereof:

       

      ““Acquiring Person”
shall mean any Person who or which, alone or together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of more than 20% of the
Common Shares then outstanding, but not including:

       

      (a) the
Company, any Subsidiary of the Company, any employee benefit or compensation
plan of the Company or of any of its Subsidiaries or any Person organized,
appointed or established by the Company and holding Common Shares for or
pursuant to the terms of any such employee benefit or compensation
plan;

       

      (b) any
such Person who or which, alone or together with all Affiliates and Associates
of such Person, has become and is the Beneficial Owner of more than 20% of the
Common Shares at the time outstanding solely as the result of (i) a change
in the aggregate number of Common Shares outstanding since the last date on
which such Person acquired Beneficial Ownership of any Common Shares or
(ii) the acquisition by such Person or one or more of its Affiliates or
Associates of Beneficial Ownership of additional Common Shares if the Board
determines that such acquisition was made in good faith without the knowledge by
such Person or one or more of its Affiliates or Associates that such Person
would thereby become an Acquiring Person, which determination of the Board shall
be conclusive and binding on such Person, the Rights Agent, the holders of the
Rights and all other Persons;

       

      (c) any
such Person who would, as of the Close of Business on the date hereof, be an
“Acquiring Person” pursuant to the foregoing provisions of this definition (an
“Excluded
Person”), unless and until such Excluded Person shall acquire after the
date hereof, without the prior approval of the Board, Beneficial Ownership of
any additional Common Shares (other than any such ownership resulting from the
exercise of any options or the vesting of any restricted shares, in each case,
granted prior to or after the date hereof to such Excluded Person under any
employee benefit or compensation plan of the Company or any of its
Subsidiaries); and

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      (d) any
Person who is (i) an immediate family member of an Excluded Person and any trust
for the benefit of (or the trustees of which include) such immediate family
member or such Excluded Person, which Person or trust acquires Common Shares
from such Excluded Person, (ii) an executor or trustee for the estate of an
Excluded Person or of such immediate family member, which executor or trustee
acquires Common Shares from such Excluded Person or family member (the shares
acquired by any such family member, trust, executor or trustee as described in
clause (d)(i) or (d)(ii), the “Specified Shares” and
any Person so acquiring Specified Shares, a “Specified Person”) or
(iii) an Affiliate or Associate of a Specified Person; provided that, with
respect to any Specified Person and its Affiliates and Associates, this clause
(d) shall only be applicable if:

       

      (x) in
the event the Specified Shares acquired by a Specified Person after the date of
this Rights Agreement are more than 20% of the Common Shares then outstanding,
(1) within 90 days from such acquisition (or such earlier or later time as the
Board may determine and so advise the Specified Person in writing), such
Specified Person and/or any or all of its Affiliates and Associates take the
necessary actions (if any) to reduce their aggregate Beneficial Ownership of
Common Shares to an amount not more than the Specified Shares acquired by such
Specified Person, (2) such Specified Person and its Affiliates and Associates
vote (which shall include action by written consent for purposes of this
definition), with respect to any matter submitted to a vote of the holders of
Common Shares, any Common Shares then beneficially owned by any of them (other
than such Specified Person’s Specified Shares) on a pro rata basis proportionate
to all other votes of Common Shares actually cast on the matter and (3) at all
times following a Specified Person’s acquisition of Specified Shares, none of
such Specified Person or any of its Affiliates and Associates acquire, without
the prior approval of the Board, Beneficial Ownership of any additional Common
Shares (other than any such ownership resulting from the exercise of any options
or the vesting of any restricted shares, in each case, granted prior to or after
the date hereof under any employee benefit or compensation plan of the Company
or any of its Subsidiaries); and

       

      (y) in
the event the Specified Shares acquired by a Specified Person after the date of
this Rights Agreement are not more than 20% of the Common Shares then
outstanding and, after giving effect to the acquisition of such Specified
Shares, such Specified Person and its Affiliates and Associates then
beneficially own collectively more than 20% of the Common Shares then
outstanding, (1) within 90 days from such acquisition (or such earlier or later
time as the Board may determine and so advise the Specified Person in writing),
such Specified Person and/or any or all of its Affiliates and Associates take
the necessary actions to reduce their aggregate Beneficial Ownership of Common
Shares to 20% or less of the Common Shares then outstanding, (2) until such
Beneficial Ownership is so reduced and solely with respect to the Common Shares
beneficially owned by such Specified Person and its Affiliates and Associates in
excess of 20% of the Common Shares then outstanding, such Specified Person and
its Affiliates and Associates vote, with respect to any matter submitted to a
vote of the holders of Common Shares, all such excess Common Shares on a pro
rata basis proportionate to all other votes of Common Shares actually cast on
the matter, (3) following its acquisition of Specified Shares and until they
comply with the requirements of clause (y)(1) above, none of such Specified
Person or any of its Affiliates or Associates acquire, without the prior
approval of the Board, Beneficial Ownership of any additional Common Shares
(other than any such ownership resulting from the exercise of any options or the
vesting of any restricted shares, in each case, granted prior to or after the
date hereof under any employee benefit or compensation plan of the Company or
any of its Subsidiaries) and (4) at all times following their compliance with
the requirements of clause (y)(1) above, such Specified Person and its
Affiliates and Associates, taken together, do not, without the prior approval of
the Board, become the Beneficial Owners of more than 20% of the Common Shares
then outstanding (other than any such ownership resulting from the exercise of
any options or the vesting of any restricted shares, in each case, granted prior
to or after the date hereof under any employee benefit or compensation plan of
the Company or any of its Subsidiaries).

       

       

      
        
          
          

        

        
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      Notwithstanding
clause (b)(ii) of the prior sentence, if any Person that is not an Acquiring
Person due to such clause (b)(ii) does not reduce its percentage of
Beneficial Ownership of Common Shares to 20% or less by the Close of Business on
the tenth calendar day after notice from the Company (the date of notice being
the first day) that such Person’s Beneficial Ownership of Common Shares would
make it an Acquiring Person, such Person shall, at the end of such ten calendar
day period, become an Acquiring Person (and such clause (b)(ii) shall no longer
apply to such Person).

       

      Any
Specified Person subject to clause (x) of the proviso to clause (d) of the
second preceding sentence shall, for so long as such Specified Person complies
with the requirements of such clause (x), be considered an “Excluded Person” for
purposes of clause (d) of such sentence (including for purposes of the
definition of “Specified Shares” and “Specified Person”).  Any
Excluded Person who transfers more than 20% of the Common Shares then
outstanding to a Specified Person shall, following such transfer, no longer be
considered an Excluded Person for purposes of clause (c) of the third preceding
sentence.”

       

      SECTION
2.  Full
Force and Effect.  Except as expressly amended hereby, the
Rights Agreement shall continue in full force and effect in accordance with the
provisions thereof.

       

      SECTION
3.  Governing
Law.  This Amendment shall be deemed to be a contract made
under the law of the State of Delaware and for all purposes shall be governed by
and construed in accordance with the law of such State applicable to contracts
to be made and performed entirely within such State; provided, however, that all
provisions regarding the rights, duties and obligations of the Rights Agent
shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made to be performed entirely within such
State.

       

      SECTION
4.  Counterparts;
Effectiveness.  This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.  This Amendment shall be effective as of the date
hereof.

       

      SECTION
5.  Descriptive
Headings.  Descriptive headings of the several Sections of this
Amendment are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.

       

       

      
        
          
          

        

        
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      SECTION
6.  Rights
Agreement as Amended.  From and after the date hereof, any
reference to the Rights Agreement shall mean the Rights Agreement as amended
hereby.

      


      SECTION
7.  Severability.  If
any term, provision, covenant or restriction of this Amendment is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and shall
in no way be affected, impaired or invalidated; provided, however, that if the
absence of such excluded provision shall, in the reasonable judgment of the
Rights Agent, materially and adversely affect its rights, immunities, duties or
obligations under the Rights Agreement, the Rights Agent shall be entitled to
resign on the next business day.

      


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      IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the day and year first above written.

      


       

      
        	
                BARNES
      & NOBLE, INC.,

              
	
                by

              
	 
      	
                /s/
      Joseph J. Lombardi

              
	 
      	
                Name:
      Joseph J. Lombardi

              
	 
      	
                Title:  Chief
      Financial Officer

              


      

      


      


      


      
        	
                MELLON
      INVESTOR SERVICES LLC, as Rights Agent

              
	
                by

              
	 
      	
                /s/
      Stephen Jones

              
	 
      	
                Name:
      Stephen
      Jones                                           
 

              
	 
      	
                Title:  Vice
      President