Attached files
| file | filename |
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| 8-K - CURRENT REPORT - BARNES & NOBLE INC | form8-k.htm |
| EX-4.1 - RIGHTS AGREEMENT - BARNES & NOBLE INC | ex4-1.htm |
Exhibit
3.1
CERTIFICATE
OF THE
DESIGNATIONS,
PREFERENCES AND RELATIVE
PARTICIPATING,
OPTIONAL AND OTHER SPECIAL
RIGHTS
AND QUALIFICATIONS, LIMITATIONS
OR
RESTRICTIONS OF SERIES I
PREFERRED
STOCK OF
BARNES
& NOBLE, INC.
Pursuant
to Section 151 of the General Corporation Law of the State of Delaware, BARNES
& NOBLE, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware, in accordance with the provisions of
Section 103 thereof, DOES HEREBY CERTIFY:
That,
pursuant to the authority conferred upon the Board of Directors (the “Board”) of BARNES
& NOBLE, INC. (the “Company”) by Article
FOURTH, paragraph (b), of the Amended and Restated Certificate of
Incorporation of the Company, the Board on November 17, 2009, adopted the
following resolution designating a new series of preferred stock as Series I
Preferred Stock:
RESOLVED,
that, pursuant to the authority vested in the Board of Directors (the “Board”) of BARNES
& NOBLE, INC. (the “Company”) in
accordance with the provisions of the Amended and Restated Certificate of
Incorporation of the Company (the “Certificate”) and the
provisions of Section 151(g) of the General Corporation Law of the State of
Delaware, a series of preferred stock of the Company is hereby authorized, and
the designation and number of shares thereof, and the preferences and relative,
participating, optional and other special rights, and the qualifications,
limitations or restrictions thereof, shall be as follows (in addition to any
preferences and relative, participating, optional and other special rights, and
the qualifications, limitations or restrictions thereof, set forth in the
Certificate which are applicable to shares of Preferred Stock, par value $0.001
per share of the Company (the “Preferred
Stock”)):
SECTION
1. Designation and Number of
Shares. The shares of such series shall be designated as
“Series I Preferred Stock” (the “Series I Preferred
Stock”). The number of shares initially constituting the
Series I Preferred Stock shall be 300,000; provided, however, that, if
more than a total of 300,000 shares of Series I Preferred Stock shall be
issuable upon the exercise of Rights (the “Rights”) issued
pursuant to the Rights Agreement dated as of November 17, 2009, between the
Company and Mellon Investor Services LLC, a New Jersey limited liability
company, as Rights Agent (the “Rights Agreement”),
the Board, pursuant to Section 151(g) of the General Corporation Law of the
State of Delaware, shall direct by resolution or resolutions that a certificate
be properly executed, acknowledged, filed and recorded, in accordance with the
provisions of Section 103 thereof, providing for the total number of shares of
Series I Preferred Stock authorized to be issued to be increased (to the extent
that the Certificate then permits) to the largest number of whole shares
(rounded up to the nearest whole number) issuable upon exercise of such
Rights.
SECTION
2. Dividends or
Distributions. (a) Subject to the superior rights
of the holders of shares of any other series of Preferred Stock or other class
of capital stock of the Company ranking superior to the shares of Series I
Preferred Stock with respect to dividends, the holders of shares of Series I
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board, out of the assets of the Company legally available therefor, (1)
quarterly dividends payable in cash on the last day of each fiscal quarter in
each year, or such other dates as the Board shall approve (each such date being
referred to herein as a “Quarterly Dividend Payment
Date”), commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or a fraction of a share of Series I Preferred Stock,
in the amount of $0.25 per whole share (rounded to the nearest cent) less the
amount of all cash dividends declared on the Series I Preferred Stock pursuant
to the following clause (2) since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of Series I
Preferred Stock (the total of which shall not, in any event, be less than zero)
and (2) dividends payable in cash on the payment date for each cash dividend
declared on the shares of Common Stock, par value $0.001 per share, of the
Company (the “Common
Stock”) in an amount per whole share (rounded to the nearest cent) equal
to the Formula Number (as hereinafter defined) then in effect times the cash
dividends then to be paid on each share of Common Stock. In addition,
if the Company shall pay any dividend or make any distribution on the Common
Stock payable in assets, securities or other forms of noncash consideration
(other than dividends or distributions solely in shares of Common Stock), then,
in each such case, the Company shall simultaneously pay or make on each
outstanding whole share of Series I Preferred Stock a dividend or distribution
in like kind equal to the Formula Number then in effect times such dividend or
distribution on each share of Common Stock. As used herein, the
“Formula
Number” shall be 1,000; provided, however, that, if at
any time after November 17, 2009, the Company shall (i) declare or pay any
dividend on the Common Stock payable in shares of Common Stock or make any
distribution on the Common Stock in shares of Common Stock, (ii) subdivide
(by a stock split or otherwise) the outstanding shares of Common Stock into a
larger number of shares of Common Stock or (iii) combine (by a reverse stock
split or otherwise) the outstanding shares of Common Stock into a smaller number
of shares of Common Stock, then in each such event the Formula Number shall be
adjusted to a number determined by multiplying the Formula Number in effect
immediately prior to such event by a fraction, the numerator of which is the
number of shares of Common Stock that are outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
are outstanding immediately prior to such event (and rounding the result to the
nearest whole number); and provided further
that, if at any time after November 17, 2009, the Company shall issue any
shares of its capital stock in a merger, reclassification, or change of the
outstanding shares of Common Stock, then in each such event the Formula Number
shall be appropriately adjusted to reflect such merger, reclassification or
change so that each share of Preferred Stock continues to be the economic
equivalent of a Formula Number of shares of Common Stock prior to such merger,
reclassification or change.
(b) The
Company shall declare a cash dividend on the Series I Preferred Stock as
provided in Section 2(a) immediately prior to or at the same time it declares a
cash dividend on the Common Stock; provided, however, that, in the
event no cash dividend shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, during the period between the first issuance of any share or
fraction of a share of Series I Preferred Stock, a dividend of $0.25 per whole
share on the Series I Preferred Stock shall nevertheless accrue on such
subsequent Quarterly Dividend Payment Date or the first Quarterly Dividend
Payment Date, as the case may be. The Board may fix a record date for
the determination of holders of shares of Series I Preferred Stock entitled to
receive a dividend or distribution declared thereon, which record date shall be
the same as the record date for any corresponding dividend or distribution on
the Common Stock.
(c) Dividends
shall begin to accrue and be cumulative on outstanding shares of Series I
Preferred Stock from and after the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue and be
cumulative from and after the date of issue of such shares, or unless the date
of issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series I Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in either of which events such dividends shall begin to accrue and be cumulative
from and after such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the
shares of Series I Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding.
(d) So
long as any shares of Series I Preferred Stock are outstanding, no dividends or
other distributions shall be declared, paid or distributed, or set aside for
payment or distribution, on the Common Stock unless, in each case, the dividend
required by this Section 2 to be declared on the Series I Preferred Stock
shall have been declared and set aside.
(e) The
holders of shares of Series I Preferred Stock shall not be entitled to receive
any dividends or other distributions except as herein provided.
SECTION
3. Voting
Rights. No voting rights shall attach to the Series I
Preferred Stock.
SECTION
4. Certain
Restrictions. (a) Whenever quarterly dividends or
other dividends or distributions on the Series I Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series I Preferred
Stock outstanding shall have been paid in full, the Company shall
not:
(i) declare
or pay dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series I
Preferred Stock;
(ii) declare
or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series I Preferred Stock, except dividends paid ratably on
the Series I Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) redeem
or purchase or otherwise acquire for consideration shares of any stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series I Preferred Stock; provided, however, that the
Company may at any time redeem, purchase or otherwise acquire shares of any such
parity stock in exchange for shares of any stock of the Company ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to the
Series I Preferred Stock; or
(iv) purchase
or otherwise acquire for consideration any shares of Series I Preferred Stock,
or any shares of stock ranking on a parity with the Series I Preferred Stock,
except in accordance with a purchase offer made in writing or by publication (as
determined by the Board) to all holders of such shares upon such terms as the
Board, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(b) The
Company shall not permit any subsidiary of the Company to purchase or otherwise
acquire for consideration any shares of stock of the Company unless the Company
could, under Section 4(a), purchase or otherwise acquire such shares at such
time and in such manner.
SECTION
5. Liquidation
Rights. Upon the liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, no distribution shall be made
(1) to the holders of any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series I
Preferred Stock unless, prior thereto, the holders of shares of Series I
Preferred Stock shall have received an amount equal to the accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, plus an amount equal to the greater of (x) $1,000 per whole share
or (y) an aggregate amount per share equal to the Formula Number then in effect
times the aggregate amount to be distributed per share to holders of Common
Stock or (2) to the holders of any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up) with the Series
I Preferred Stock, except distributions made ratably on the Series I Preferred
Stock and all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up; provided, that no
holder of any Series I Preferred Stock shall be authorized or entitled to
receive upon involuntary liquidation of the Company an amount in excess of
$100.00 per share of Series I Preferred Stock.
SECTION
6. Consolidation, Merger,
etc. In case the Company shall enter into any consolidation,
merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash or any other
property, then in any such case the then outstanding shares of Series I
Preferred Stock shall at the same time be similarly exchanged or changed into an
amount per share equal to the Formula Number then in effect times the aggregate
amount of stock, securities, cash or any other property (payable in kind), as
the case may be, into which or for which each share of Common Stock is exchanged
or changed. In the event both this Section 6 and Section 2 appear to
apply to a transaction, this Section 6 will control.
SECTION
7. No
Redemption; No Sinking Fund. (a) The shares of
Series I Preferred Stock shall not be subject to redemption by the Company or at
the option of any holder of Series I Preferred Stock; provided, however, that,
subject to Section 4(a)(iv), the Company may purchase or otherwise acquire
outstanding shares of Series I Preferred Stock in the open market or by offer to
any holder or holders of shares of Series I Preferred Stock.
(b) The
shares of Series I Preferred Stock shall not be subject to or entitled to the
operation of a retirement or sinking fund.
SECTION
8. Ranking. The
Series I Preferred Stock shall rank junior to all other series of Preferred
Stock of the Company unless the Board shall specifically determine otherwise in
fixing the powers, preferences and relative, participating, optional and other
special rights of the shares of such series and the qualifications, limitations
and restrictions thereof.
SECTION
9. Fractional
Shares. The Series I Preferred Stock shall be issuable upon
exercise of the Rights issued pursuant to the Rights Agreement in whole shares
or in any fraction of a share that is one one-thousandth of a share (as
such fraction may be adjusted as provided in the Rights Agreement) or any
integral multiple of such fraction which shall entitle the holder, in proportion
to such holder’s fractional shares, to receive dividends, participate in
distributions and to have the benefit of all other rights of holders of Series I
Preferred Stock. In lieu of fractional shares, the Company, prior to
the first issuance of a share or a fraction of a share of Series I Preferred
Stock, may elect (a) to make a cash payment as provided in the Rights Agreement
for fractions of a share other than one one-thousandths of a share (as such
fraction may be adjusted as provided in the Rights Agreement) or any integral
multiple thereof or (b) to issue depository receipts evidencing such
authorized fraction of a share of Series I Preferred Stock pursuant to an
appropriate agreement between the Company and a depository selected by the
Company; provided, however, that such
agreement shall provide that the holders of such depository receipts shall have
all the rights, privileges and preferences to which they are entitled as holders
of the Series I Preferred Stock.
SECTION
10. Reacquired
Shares. Any shares of Series I Preferred Stock purchased or
otherwise acquired by the Company in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such shares
shall upon their cancelation become authorized but unissued shares of Preferred
Stock, without designation as to series until such shares are once more
designated as part of a particular series by the Board pursuant to the
provisions of the Certificate.
SECTION
11. Amendment. So
long as any shares of Series I Preferred Stock shall be outstanding,
(i) none of the powers, preferences and relative, participating, optional
and other special rights of the Series I Preferred Stock as herein provided
shall be amended in any manner which would alter or change the powers,
preferences, rights or privileges of the holders of Series I Preferred Stock so
as to affect them adversely and (ii) no amendment, alteration or repeal of
the Certificate or of the By-laws of the Company shall be effected so as to
affect adversely any of such powers, preferences, rights or
privileges.
IN
WITNESS WHEREOF, the Company has caused this Certificate to be duly executed in
its corporate name on this 17th day of November, 2009.
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