Form 8-K Barnes & Noble Education For: Aug 03

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

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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):  August 3, 2015 (August 2, 2015)

Delaware	1-37499		46-0599018
(State or other jurisdiction of incorporation)	(Commission File Number)		(IRS Employer Identification No.)
120 Mountain View Blvd, Basking Ridge, NJ		07920
(Address of principal executive offices)		(Zip Code)

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

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On August 2, 2015, in connection with the previously announced spin-off (the “Spin-Off”) of Barnes & Noble Education, Inc. (the “Company”) from Barnes & Noble, Inc. (“Barnes & Noble”), the Company entered into several agreements with Barnes & Noble that set forth certain actions taken or to be taken in connection with the Spin-Off and that govern the relationship of the parties following the Spin-Off, including the following:

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a Transition Services Agreement;

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a Tax Matters Agreement;

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an Employee Matters Agreement; and

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a Trademark License Agreement

A description of the material terms and conditions of these agreements can be found in the section titled “Certain Relationships and Related Party Transactions” of the Prospectus dated July 15, 2015 and filed with the Securities and Exchange Commission (the “SEC”) on that date pursuant to Rule 424(b), which is incorporated herein by reference. The descriptions of the Transition Services Agreement, Tax Matters Agreement, Employee Matters Agreement and Trademark License Agreement are qualified in their entirety by reference to the full text of the Transition Services Agreement, Tax Matters Agreement, Employee Matters Agreement and Trademark License Agreement, which are attached as Exhibits 10.1, 10.2, 10.3 and 10.4, respectively, to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference.

Credit Facility

 

On August 3, 2015, the Company and certain of its subsidiaries from time to time party thereto entered into a credit agreement (the “Credit Agreement”) with Bank of America, N.A., as administrative agent, collateral agent and swing line lender, and other lenders from time to time party thereto, under which the lenders committed to provide a five-year asset-backed revolving credit facility in an aggregate committed principal amount of $400 million (the “Credit Facility”). Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC, Wells Fargo Bank, N.A. and SunTrust Robinson Humphrey, Inc. are the joint lead arrangers for the Credit Facility.

The Company and certain of its subsidiaries will be permitted to borrow under the Credit Facility. The Credit Facility is secured by substantially all of the inventory, accounts receivable and related assets of the borrowers under the Credit Facility (collectively, the “Loan Parties”), but excluding the equity interests in the Company and its subsidiaries, intellectual property, equipment and certain other property.  The Company has the option to request an increase in commitments under the Credit Facility of up to $100 million, subject to certain restrictions.

Interest under the Credit Facility accrues, at the election of the Company, at a LIBOR or alternate base rate, plus, in each case, an applicable interest rate margin, which is determined by reference to the level of excess availability under the Credit Facility. Loans will initially bear interest at LIBOR plus 2.000% per annum, in the case of LIBOR borrowings, or at the alternate base rate plus 1.000% per annum, in the alternative, and thereafter the interest rate will fluctuate between LIBOR plus 2.000% per annum and LIBOR plus 1.750% per annum (or between the alternate base rate plus 1.000% per annum and the alternate base rate plus 0.750% per annum), based upon the excess availability under the Credit Facility at such time.

The Credit Agreement contains customary negative covenants, which limit the Company’s ability to incur additional indebtedness, create liens, make investments, make restricted payments or specified payments and merge or acquire assets, among other things.  In addition, if excess availability under the Credit Facility were to fall below certain specified levels, certain additional covenants (including fixed charge coverage ratio requirements) would be triggered, and the lenders will assume dominion and control over the Loan Parties’ cash.

The Credit Agreement contains customary events of default, including payment defaults, material breaches of representations and warranties, covenant defaults, default on other material indebtedness, customary ERISA events of default, bankruptcy and insolvency, material judgments, invalidity of liens on collateral, change of control or cessation of business.  The Credit Agreement also contains customary affirmative covenants and representations and warranties.

The foregoing description of the Credit Facility does not purport to be complete and is qualified in its entirety by reference to the Credit Agreement, a copy of which is attached as Exhibit 10.5 to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference.

 

 

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In connection with the entry into the Credit Facility described under Item 1.01 of this Current Report on Form 8-K, the prior credit facility of Barnes & Noble, as lead borrower, and the Company and certain other subsidiaries of Barnes & Noble as borrowers and guarantors, with Bank of America, N.A. as administrative agent, and the other lenders party thereto, was terminated effective as of August 3, 2015, and all amounts outstanding under the prior credit facility were repaid.

The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 2.03 by reference.

The information set forth under Item 1.02 of this Current Report on Form 8-K with respect to the prepayment of the prior credit facility of Barnes & Noble, as lead borrower, and the Company and certain other subsidiaries of Barnes & Noble, as borrowers and guarantors, is incorporated into this Item 2.04 by reference.

 

Item 3.03

Material Modification to Rights of Security Holders

The information set forth under Item 5.03 of this Current Report on Form 8-K is incorporated into this Item 3.03 by reference.

Departure of Certain Directors; Election of Directors

On August 1, 2015, in anticipation of the Spin-Off, Allen W. Lindstrom and Bradley A. Feuer each tendered his resignation as a member of the board of directors of the Company (the “Board”), effective concurrently with the consummation of the Spin-Off at 12:01 a.m. New York City Time (the “Effective Time”) on August 2, 2015.

On August 1, 2015, Barnes & Noble Booksellers, Inc. (“Booksellers”), the sole stockholder of the Company, elected Daniel A. DeMatteo, Jerry Sue Thornton, David G. Golden and Max J. Roberts to serve as directors of the Company, effective at the Effective Time.  Michael P. Huseby was previously elected to serve as a director of the Company and, on July 22, 2015, Booksellers elected David A. Wilson and John R. Ryan to serve as directors of the Company, effective as of July 22, 2015. Mr. Huseby and Dr. Wilson will serve as Class I directors, whose terms expire at the 2016 annual meeting of stockholders. Mr. Golden, Mr. Roberts and Dr. Thornton will serve as Class II directors, whose terms expire at the 2017 annual meeting of stockholders. Mr. DeMatteo and Vice Admiral Ryan will serve as Class III directors, whose terms expire at the 2018 annual meeting of stockholders.

Mr. Huseby will serve as Executive Chairman of the Board. Dr. Wilson, Mr. DeMatteo and Mr. Golden will serve as members of the Audit Committee of the Board. Mr. Golden, Mr. DeMatteo, Vice Admiral Ryan and Dr. Thornton will serve as members of the Compensation Committee of the Board. Vice Admiral Ryan, Dr. Thornton, and Dr. Wilson will serve as members of the Corporate Governance and Nominating Committee of the Board.

In connection with the Spin-Off, Mr. Huseby, Mr. Golden, Dr. Wilson and Vice Admiral Ryan each tendered his resignation as a member of the board of directors of Barnes & Noble, effective at the Effective Time.

A summary of the qualifications and experience of the members of the Board listed above can be found in the section titled “Management” of the Prospectus dated July 15, 2015 and filed with the SEC on that date pursuant to Rule 424(b), which is incorporated herein by reference.

Appointment of Certain Officers

Each of the individuals listed as executive officers following the Spin-Off in the Prospectus dated July 15, 2015 and file with the SEC on that date pursuant to Rule 424(b) was appointed to his or her respective position, effective as of the Effective Time.

 

 

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In addition, Seema Paul has been appointed as the Chief Accounting Officer of the Company. Ms. Paul is a Certified Public Accountant and a financial executive. Ms. Paul’s experience includes working as the Corporate Controller for Covanta Holding Corporation, as well as other senior financial positions at Sybase, Inc. and Liberty Mutual Insurance Co. She earned a Master’s degree in Accounting Information Systems and two Bachelor’s degrees in Accounting and Finance from the University of Maryland.

 

Item 5.03

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On August 1, 2015, the Amended and Restated Certificate of Incorporation (the “Restated Certificate”) of the Company and the Amended and Restated By-laws of the Company (the “Restated By-laws”) became effective. The Restated Certificate and the Restated By-laws were approved by the Board on July 22, 2015 and the Restated Certificate was approved by Booksellers, in its capacity as sole stockholder of the Company, on July 31, 2015.

A summary of the material provisions of the Restated Certificate and Restated By-laws can be found in the section titled “Description of Our Capital Stock” of the Prospectus dated July 15, 2015 and filed with the SEC on that date pursuant to Rule 424(b), which is incorporated herein by reference. This summary does not purport to be complete and is qualified in its entirety by reference to the full text of the Restated Certificate and Restated By-laws, attached as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K and incorporated into this Item 5.03 by reference.

 

Item 8.01

Other Events

 

Item 9.01

Financial Statements and Exhibits

* Pursuant to a request for confidential treatment, portions of this Exhibit have been redacted from the publicly filed document and have been furnished separately to the Securities and Exchange Commission as required by Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

 

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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 EDUCATION, INC.,
Date: August 3, 2015	By:	/s/ Sheedeh Moayery
		Name: Sheedeh Moayery
		Title:   Interim Corporate Secretary

 

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Exhibit No.		Description
3.1		Amended and Restated Certificate of Incorporation of Barnes & Noble Education, Inc.
3.2		Amended and Restated By-Laws of Barnes & Noble Education, Inc.
10.1		Transition Services Agreement, dated as of August 2, 2015, between Barnes & Noble Education, Inc. and Barnes & Noble, Inc.
10.2		Tax Matters Agreement, dated as of August 2, 2015, between Barnes & Noble Education, Inc. and Barnes & Noble, Inc.
10.3		Employee Matters Agreement, dated as of August 2, 2015, between Barnes & Noble Education, Inc. and Barnes & Noble, Inc.
10.4		Trademark License Agreement, dated as of August 2, 2015, between Barnes & Noble Education, Inc. and Barnes & Noble, Inc.
10.5		Credit Agreement, dated as of August 3, 2015, by and among Barnes & Noble Education, Inc., as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent, and the other agents party thereto.*
99.1		Press Release, issued August 3, 2015.

 

* Pursuant to a request for confidential treatment, portions of this Exhibit have been redacted from the publicly filed document and have been furnished separately to the Securities and Exchange Commission as required by Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

BARNES & NOBLE EDUCATION, INC.

BARNES & NOBLE EDUCATION, INC., a corporation organized and existing under the laws of the State of Delaware, DOES HEREBY CERTIFY AS FOLLOWS:

ARTICLE I

The name of the corporation (hereinafter called the “Corporation”) is Barnes & Noble Education, Inc.

ARTICLE II

The address of the Corporation’s registered office in the State of Delaware is 1675 South State St. Ste B, City of Dover, County of Kent, Delaware 19901. The name of the Corporation’s registered agent at such address is Capitol Services, Inc.

ARTICLE III

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

ARTICLE IV

SECTION 1. The total number of shares of all classes of stock which the Corporation shall have authority to issue is 205,000,000 shares, consisting of (1) 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Stock”) and (2) 200,000,000 shares of Common Stock, par value $0.01 per share (the “Common Stock”). The number of authorized shares of either the Preferred Stock or the Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of the State of Delaware (or any successor provision thereto), and no vote of the holders of either the Preferred Stock or the Common Stock voting separately as a class shall be required therefor.

SECTION 2. The Board of Directors of the Corporation (the “Board of Directors” or the “Board”) is hereby expressly authorized, by resolution or resolutions, to provide, out of the unissued shares of Preferred Stock, for series of Preferred Stock and, with respect to each such series, to fix the number of shares constituting such series and the designation of such series, the voting powers (if any) of the shares of such series, and the preferences and relative, participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, of the shares of such series. The powers, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.

 

 

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SECTION 3. (a) Each holder of Common Stock, as such, shall be entitled to one vote for each share of Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Amended and Restated Certificate of Incorporation (including any Certificate of Designation relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Amended and Restated Certificate of Incorporation (including any Certificate of Designation relating to any series of Preferred Stock) or pursuant to the General Corporation Law of the State of Delaware.

(b) Except as otherwise required by law, holders of a series of Preferred Stock, as such, shall be entitled only to such voting rights, if any, as shall expressly be granted to such holders by this Amended and Restated Certificate of Incorporation (including any Certificate of Designation relating to such series).

(c) Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock, dividends may be declared and paid on the Common Stock at such times and in such amounts as the Board of Directors in its discretion shall determine.

(d) Upon the dissolution, liquidation or winding up of the Corporation, subject to the rights, if any, of the holders of any outstanding series of Preferred Stock, the holders of the Common Stock, as such, shall be entitled to receive the assets of the Corporation available for distribution to its stockholders ratably in proportion to the number of shares held by them.

ARTICLE V

SECTION 1. The directors, other than those who may be elected by the holders of Preferred Stock pursuant to resolutions of the Board of Directors, adopted pursuant to the provisions of this Amended and Restated Certificate of Incorporation, establishing any series of Preferred Stock and granting to holders of shares of such series of Preferred Stock rights to elect additional directors under specified circumstances, shall be classified with respect to the time for which they severally hold office into three classes, as nearly equal in number as possible, one class initially to be elected for a term expiring at the annual meeting of stockholders to be held in 2016, another class initially to be elected for a term expiring at the annual meeting of stockholders to be held in 2017 and another class initially to be elected for a term expiring at the annual meeting of stockholders to be held in 2018, with the members of each class to hold office until their successors have been elected and qualified. At each annual meeting of stockholders, the successors of the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. Except as otherwise fixed by or pursuant to the provisions of Article IV of this Amended and Restated Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock, the number of the directors of the Corporation shall be fixed from time to time exclusively pursuant to a resolution adopted by a majority of the Board of Directors. The election of directors need not be by written ballot. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

 

 

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SECTION 2. Advance notice of nominations for the election of directors shall be given in the manner and to the extent provided in the By-laws of the Corporation.

SECTION 3. Except as otherwise provided for or fixed by or pursuant to the provisions of Article IV of this Amended and Restated Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock, newly created directorships resulting from any increase in the number of directors and any vacancies on the Board of Directors resulting from death, resignation, removal or other cause shall only be filled by the Board of Directors, and not by the stockholders, by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining director, or as otherwise provided in the By-laws of the Corporation (the “By-laws”). Any director elected in accordance with the preceding sentence of this Section 3 shall hold office until the third annual meeting of stockholders next following his or her election and until such director’s successor shall have been elected and qualified.

ARTICLE VI

Subject to the rights of the holders of any series of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders. Except as otherwise required by law and subject to the rights of the holders of any series of Preferred Stock, special meetings of stockholders of the Corporation may be called only by the Chairman of the Board of the Directors or the Board of Directors pursuant to a resolution approved by a majority of the entire Board of Directors.

ARTICLE VII

In furtherance and not in limitation of the powers conferred upon it by law, the Board of Directors is expressly authorized to adopt, repeal, alter or amend the By-laws of the Corporation by the vote of a majority of the entire Board of Directors or such greater vote as shall be specified in the By-laws of the Corporation. In addition to any requirements of law and any other provision of this Amended and Restated Certificate of Incorporation (and notwithstanding the fact that a lesser percentage may be specified by law), the affirmative vote of the holders of a majority of the combined voting power of the then outstanding shares of all classes and series of capital stock of the Corporation entitled generally to vote in the election of directors of the Corporation, voting together as a single class, shall be required for stockholders to adopt, amend, alter or repeal any provision of the By-laws of the Corporation.

ARTICLE VIII

The Corporation reserves the right to amend, alter or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are subject to this reservation.

ARTICLE IX

SECTION 1. To the fullest extent that the General Corporation Law of the State of Delaware or any other law of the State of Delaware as it exists or as it may hereafter be amended permits the limitation or elimination of the liability of directors, no director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.

 

 

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SECTION 2. To the fullest extent that the General Corporation Law of the State of Delaware or any other law of the State of Delaware as it exists or as it may hereafter be amended permits, the Corporation may provide indemnification of (and advancement of expenses to) its current and former directors, officers and agents (and any other persons to which the General Corporation Law of the State of Delaware permits the Corporation to provide indemnification) through By-law provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise.

SECTION 3. No amendment to or repeal of any Section of this Article IX, nor the adoption of any provision of this Amended and Restated Certificate of Incorporation inconsistent with this Article IX, shall eliminate or reduce the effect of this Article IX in respect of any matter occurring, or any action or proceeding accruing or arising, prior to such amendment, repeal or adoption of an inconsistent provision.

BARNES & NOBLE EDUCATION, INC.

AMENDED AND RESTATED BY-LAWS

Effective as of August 1, 2015

ARTICLE I

SECTION 1. Registered Office. The registered office of BARNES & NOBLE EDUCATION, INC. (hereinafter called the “Corporation“) in the State of Delaware shall be at 1675 South State St. Ste B, City of Dover, County of Kent, Delaware 19901, and the registered agent shall be Capitol Services, Inc., or such other office or agent as the Board of Directors of the Corporation (the “Board“) shall from time to time select.

SECTION 2. Other Offices. The Corporation may also have an office or offices, and keep the books and records of the Corporation, except as may otherwise be required by law, at such other place or places, either within or outside of the State of Delaware, as the Board may from time to time determine or the business of the Corporation may require.

ARTICLE II

SECTION 1. Place of Meeting. All meetings of the stockholders of the Corporation (the “stockholders”) shall be at a place, either within or outside of the State of Delaware, as determined by the Board.

SECTION 2. Annual Meetings. The annual meeting of the stockholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on such date and at such hour as shall from time to time be fixed by the Board. Any previously scheduled annual meeting of the stockholders may be postponed by action of the Board taken prior to the time previously scheduled for such annual meeting of the stockholders.

SECTION 3. Special Meetings. Except as otherwise required by law or the Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate”), and subject to the rights of the holders of any series of Preferred Stock, special meetings of the stockholders for any purpose or purposes may be called by the Chairman of the Board or a majority of the entire Board. Only such business as is specified in the Corporation’s notice of any special meeting of stockholders shall come before such meeting. A special meeting shall be held at such place, on such date and at such time as shall be fixed by the Chairman of the Board or the Board, as applicable.

SECTION 4. Notice of Meetings. Except as otherwise provided by law, notice of each meeting of the stockholders, whether annual or special, shall be given by the Corporation not less than 10 days nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of the meeting and shall be called by the Corporation. If mailed, such notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. Each such notice shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any meeting of the stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy without protesting, prior to or at the commencement of the meeting, the lack of proper notice to such stockholder, or who shall waive notice thereof as provided in Article X of these By-laws. Notice of adjournment of a meeting of the stockholders need not be given if the time and place to which it is adjourned are announced at such meeting, unless the adjournment is for more than 30 days or, after adjournment, a new record date is fixed for the adjourned meeting.

SECTION 5. Quorum. Except as otherwise provided by law or by the Certificate, the holders of a majority of the votes entitled to be cast by the stockholders entitled to vote generally, present in person or by proxy, shall constitute a quorum at any meeting of the stockholders; provided, however, that in the case of any vote to be taken by classes or series, the holders of a majority of the votes entitled to be cast by the stockholders of a particular class or series, present in person or by proxy, shall constitute a quorum of such class or series.

 

 

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SECTION 6. Adjournments. The chairman of the meeting or the holders of a majority of the votes entitled to be cast by the stockholders who are present in person or by proxy may adjourn the meeting from time to time whether or not a quorum is present. In the event that a quorum does not exist with respect to any vote to be taken by a particular class or series, the chairman of the meeting or the holders of a majority of the votes entitled to be cast by the stockholders of such class or series who are present in person or by proxy may adjourn the meeting with respect to the vote(s) to be taken by such class or series. At any such adjourned meeting at which a quorum may be present, any business may be transacted which might have been transacted at the meeting as originally called.

SECTION 7. Order of Business. At each meeting of the stockholders, the Chairman of the Board or, in the absence of the Chairman of the Board, the Chief Executive Officer (if the position is held by an individual other than the Chairman of the Board) or, in the absence of the Chairman of the Board and the Chief Executive Officer, such person as shall be selected by the Board shall act as chairman of the meeting. The order of business at each such meeting shall be as determined by the chairman of the meeting. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the Corporation, restrictions on entry to such meeting after the time prescribed for the commencement thereof and the opening and closing of the voting polls.

At any annual meeting of the stockholders, only such business shall be conducted as shall have been brought before the annual meeting (i) by or at the direction of the chairman of the meeting or (ii) by any stockholder who is a holder of record of shares of Common Stock or shares of Preferred Stock entitled to vote with Common Stock at the time of the giving of the notice provided for in this Section 7, who is entitled to vote at the meeting and who complies with the procedures set forth in this Section 7.

For business properly to be brought before an annual meeting of stockholders by a stockholder, the stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation (the “Secretary”). To be timely, a stockholder’s notice must be delivered to or mailed and received by the Secretary at the principal executive offices of the Corporation not less than 90 days nor more than 120 days prior to the first anniversary of the date of the immediately preceding annual meeting; provided, however, that in the event that the date of the annual meeting is more than 30 days earlier or more than 60 days later than such anniversary date, notice by the stockholder to be timely must be so delivered or received not earlier than the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made; provided, further, that for the purpose of calculating the timeliness of stockholder notices for the 2016 annual meeting of stockholders, the date of the immediately preceding annual meeting shall be deemed to be August 2, 2015. To be in proper written form, a stockholder’s notice to the Secretary shall set forth in writing as to each matter the stockholder proposes to bring before the annual meeting: (i) a brief description of the business desired to be brought before the annual meeting, the text of the proposal or business (including the complete text of any resolutions proposed for consideration or any amendment to any Corporation document intended to be presented at the annual meeting), the reasons for conducting such business at the annual meeting and any material interest of such stockholder in such business and the beneficial owner, if any, on whose behalf the proposal is made; (ii) the name and address of the stockholder proposing such business, as they appear on the Corporation’s books, and of such beneficial owner; (iii) the class or series and number of shares of the Corporation owned, directly or indirectly, beneficially and of record by the stockholder and any beneficial owner on whose behalf the business is proposed, and any of their respective affiliates or associates or other parties with whom they are acting in concert, as well as any derivative instrument or similar contract or agreement the value of or return on which is based on or linked to the value of or return of any of the Corporation’s securities; and (iv) if the stockholder intends to solicit proxies in support of such stockholder’s proposal, a representation to that effect. The foregoing notice requirements shall be deemed satisfied by a stockholder if the stockholder has notified the Corporation of his or her intention to present a proposal at an annual meeting and such stockholder’s proposal has been included in a proxy statement that has been prepared by management of the Corporation to solicit proxies for such annual meeting; provided, however, that if such stockholder does not appear or send a qualified representative to present such proposal at such annual meeting, the Corporation need not present such proposal for a vote at such meeting, notwithstanding that proxies in respect of such vote may have been received by the Corporation; and provided, further, that the foregoing shall not imply any obligation beyond that required by applicable law to include a stockholder’s proposal in a proxy statement prepared by management of the Corporation. Notwithstanding anything in these By-laws to the contrary, no business shall be conducted at any annual meeting except in accordance with the procedures set forth in this Section 7. The chairman of an annual meeting may refuse to permit any business to be brought before an annual meeting which fails to comply with the foregoing procedures or, in the case of a stockholder proposal, if the stockholder solicits proxies in support of such stockholder’s proposal without having made the representation required by clause (iv) of the third preceding sentence.

SECTION 8. List of Stockholders. It shall be the duty of the Secretary or other officer who has charge of the stock ledger to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in such stockholder’s name. Such list shall be produced and kept available at the times and places required by law.

 

 

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SECTION 9. Voting. Except as otherwise provided by law or by the Certificate, each stockholder of record of any series of Preferred Stock shall be entitled at each meeting of the stockholders to such number of votes, if any, for each share of such stock as may be fixed in the Certificate or in the resolution or resolutions adopted by the Board providing for the issuance of such stock, and each stockholder of record of Common Stock shall be entitled at each meeting of the stockholders to one vote for each share of such stock, in each case, registered in such stockholder’s name on the books of the Corporation:

(1) on the date fixed pursuant to Section 6 of Article VII of these By-laws as the record date for the determination of stockholders entitled to notice of and to vote at such meeting; or

(2) if no such record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of such meeting is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.

Each stockholder entitled to vote at any meeting of the stockholders may authorize not in excess of three persons to act for such stockholder by proxy. Any such proxy shall be delivered to the secretary of such meeting at or prior to the time designated for holding such meeting, but in any event not later than the time designated in the order of business for so delivering such proxies. No such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.

Except as otherwise required by law and except as otherwise provided in the Certificate or these By-laws, at each meeting of the stockholders, all corporate actions to be taken by vote of the stockholders shall be authorized by a majority of the votes cast by the stockholders entitled to vote thereon who are present in person or represented by proxy, and where a separate vote by class or series is required, a majority of the votes cast by the stockholders of such class or series who are present in person or represented by proxy shall be the act of such class or series.

Unless required by law or determined by the chairman of the meeting to be advisable, the vote on any matter, including the election of directors, need not be by written ballot.

SECTION 10. Inspectors. The chairman of the meeting shall appoint one or more inspectors to act at any meeting of the stockholders. Such inspectors shall perform such duties as shall be required by law or specified by the chairman of the meeting. Inspectors need not be stockholders. No director or nominee for the office of director shall be appointed such inspector.

SECTION 11. Public Announcements. For the purpose of Section 7 of this Article II and Section 3 of Article III, “public announcement” shall mean disclosure (i) in a press release reported by the Dow Jones Newswire, Business Wire, Reuters Information Service or any similar or successor news wire service or (ii) in a communication distributed generally to stockholders and in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or any successor provisions thereto.

ARTICLE III

SECTION 1. General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate directed or required to be exercised or done by the stockholders.

SECTION 2. Number, Qualification and Election. Except as otherwise fixed by or pursuant to the provisions of Article IV of the Certificate relating to the rights of the holders of any series of Preferred Stock, the number of directors constituting the Whole Board shall be determined from time to time by the Board. However, no decrease in the number of directors constituting the Whole Board shall shorten the term of any incumbent director. The term “Whole Board” shall mean the total number of authorized directors, whether or not there exist any vacancies or unfilled previously authorized directorships.

Each director shall be at least 21 years of age. Directors need not be stockholders of the Corporation. No person shall qualify for service as a director of the Corporation if he or she is a party to any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity other than the Corporation, or has received any such compensation or other payment from any person or entity other than the Corporation, in each case in connection with candidacy or service as a director of the Corporation; provided that agreements providing only for indemnification and/or reimbursement of out-of-pocket expenses in connection with candidacy as director (but not, for the avoidance of doubt, in connection with service as a director) and any pre-existing employment agreement a candidate has with his or her employer (not entered into in contemplation of the employer’s investment in the Corporation or such employee’s candidacy as a director) shall not be disqualifying under this Section 2; and provided, further, that agreements, arrangements, understandings, compensation or other payments in connection with candidacy or service as a director of the Corporation shall not be disqualifying under this Section 2 if the Board in its discretion makes an affirmative determination that the director satisfies applicable regulatory and stock exchange listing requirements to be an independent director of the Corporation and that the director is free of any other relationship (with the Company (as hereinafter defined in this Section 2) or any stockholder or otherwise) that would interfere with the exercise of independent judgment by such director.

 

 

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SECTION 3. Notification of Nominations. Subject to the rights of the holders of any series of Preferred Stock, nominations for the election of directors may be made by the Board or by any stockholder who is a holder of record of shares of Common Stock or shares of Preferred Stock entitled to vote with Common Stock at the time of giving of the notice of nomination provided for in this Section 3 and who is entitled to vote for the election of directors. Any stockholder of record entitled to vote for the election of directors at a meeting may nominate persons for election as directors only if timely written notice of such stockholder’s intent to make such nomination is given, either by personal delivery or by United States mail, postage prepaid, to the Secretary. To be timely, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the Corporation (i) with respect to an election to be held at an annual meeting of the stockholders, not less than 90 days nor more than 120 days prior to the first anniversary of the date of the immediately preceding annual meeting; provided, however, that in the event that the date of the annual meeting is more than 30 days earlier or more than 60 days later than such anniversary date, notice by the stockholder to be timely must be so delivered or received not earlier than the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made; provided, further, that for the purpose of calculating the timeliness of stockholder notices for the 2016 annual meeting of stockholders, the date of the immediately preceding annual meeting shall be deemed to be August 2, 2015 and (ii) with respect to an election to be held at a special meeting of the stockholders for the election of directors, not earlier than the 90th day prior to such special meeting and not later than the close of business on the later of the 60th day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees to be elected at such meeting. Each such notice shall set forth: (a) the name and address, as they appear on the Corporation’s books, of the stockholder who intends to make the nomination and the name and address of the person or persons to be nominated; (b) the class or series and number of shares of the Corporation owned, directly or indirectly, beneficially and of record by the stockholder and any beneficial owner on whose behalf the nomination is made, and any of their respective affiliates or associates or other parties with whom they are acting in concert, as well as any derivative instrument or similar contract or agreement the value of or return on which is based on or linked to the value of or return of any of the Corporation’s securities; (c) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote in the election of directors and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (d) a description of all arrangements or understandings between the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (e) such other information regarding each nominee proposed by such stockholder as would have been required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission had each nominee been nominated, or intended to be nominated, by the Board; (f) the executed written consent of each nominee to serve as a director of the Corporation if so elected; and (g) if the stockholder intends to solicit proxies in support of such stockholder’s nominee(s), a representation to that effect. The chairman of the meeting may refuse to acknowledge the nomination of any person not made in compliance with the foregoing procedure or if the stockholder solicits proxies in favor of such stockholder’s nominee(s) without having made the representations required by the immediately preceding sentence. If such stockholder does not appear or send a qualified representative to present such proposal at such meeting, the Corporation need not present such proposal for a vote at such meeting, notwithstanding that proxies in respect of such vote may have been received by the Corporation. Only such persons who are nominated in accordance with the procedures set forth in this Section 3 shall be eligible to serve as directors of the Corporation.

Notwithstanding anything in the immediately preceding paragraph of this Section 3 to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting of the stockholders is increased and there is no public announcement naming all of the nominees for directors or specifying the size of the increased Board made by the Corporation at least 90 days prior to the first anniversary of the date of the immediately preceding annual meeting, a stockholder’s notice required by this Section 3 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to or mailed to and received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation.

SECTION 4. Quorum and Manner of Acting. Except as otherwise provided by law, the Certificate or these By-laws, a majority of the Whole Board shall constitute a quorum for the transaction of business at any meeting of the Board, and, except as so provided, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board. The chairman of the meeting or a majority of the directors present may adjourn the meeting to another time and place whether or not a quorum is present. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called.

 

 

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SECTION 5. Place of Meeting. Subject to Sections 6 and 7 of this Article III, the Board may hold its meetings at such place or places, either within or outside of the State of Delaware, as the Board may from time to time determine, or as shall be specified or fixed in the respective notices or waivers of notice thereof.

SECTION 6. Regular Meetings. Regular meetings of the Board shall be held at such times as the Board shall from time to time determine, at such locations as the Board may determine. If any day fixed for a regular meeting shall be a legal holiday under the laws of the place where the meeting is to be held, the meeting which would otherwise be held on that day shall be held at the same hour on the next succeeding business day. No fewer than four meetings of the Board shall be held per year.

SECTION 7. Special Meetings. Special meetings of the Board shall be held whenever called by the Chairman of the Board, the Chief Executive Officer or by a majority of the non-employee directors, and shall be held at such place, on such date and at such time as he or they, as applicable, shall fix.

SECTION 8. Notice of Meetings. Notice of regular meetings of the Board or of any adjourned meeting thereof need not be given. Notice of each special meeting of the Board shall be given by overnight delivery service or mailed to each director, in either case addressed to such director at such director’s residence or usual place of business, at least two days before the day on which the meeting is to be held or shall be sent to such director at such place by telecopy or by electronic transmission or shall be given personally or by telephone, not later than the day before the meeting is to be held, but notice need not be given to any director who shall, either before or after the meeting, submit a waiver of such notice or who shall attend such meeting without protesting, prior to or at its commencement, the lack of notice to such director. Unless otherwise required by these By-laws, every such notice shall state the time and place but need not state the purpose of the meeting.

SECTION 9. Rules and Regulations. The Board may adopt such rules and regulations not inconsistent with the provisions of law, the Certificate or these By-laws for the conduct of its meetings and management of the affairs of the Corporation as the Board may deem proper.

SECTION 10. Participation in Meeting by Means of Communications Equipment. Any one or more members of the Board or any committee thereof may participate in any meeting of the Board or of any such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other or as otherwise permitted by law, and such participation in a meeting shall constitute presence in person at such meeting.

SECTION 11. Action Without Meeting. Any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or of any such committee consent thereto in writing or as otherwise permitted by law and, if required by law, the writing or writings are filed with the minutes or proceedings of the Board or of such committee.

SECTION 12. Resignations. Any director of the Corporation may at any time resign by giving written notice to the Board, the Chairman of the Board, the Chief Executive Officer or the Secretary. Such resignation shall take effect at the time specified therein or, if the time be not specified therein, upon receipt thereof; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

SECTION 13. Vacancies. Subject to the rights of the holders of any series of Preferred Stock, any vacancies on the Board resulting from death, resignation, removal or other cause shall only be filled by the Board, and not by the stockholders, by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board, or by a sole remaining director, and newly created directorships resulting from any increase in the number of directors shall only be filled by the Board, or if not so filled, by the stockholders at the next annual meeting thereof or at a special meeting called for that purpose in accordance with Section 3 of Article II of these By-laws. Any director elected in accordance with the preceding sentence of this Section 13 shall hold office until the next annual meeting of the stockholders at which the term of office of the class of directors of which such director is a member expires and until such director’s successor shall have been elected and qualified

SECTION 14. Compensation. Each director, in consideration of such person serving as a director, shall be entitled to receive from the Corporation such amount per annum and such fees (payable in cash or stock-based compensation) for attendance at meetings of the Board or of committees of the Board, or both, as the Board or a committee thereof shall from time to time determine. In addition, each director shall be entitled to receive from the Corporation reimbursement for the reasonable expenses incurred by such person in connection with the performance of such person’s duties as a director. Nothing contained in this Section 14 shall preclude any director from serving the Corporation or any of its subsidiaries in any other capacity and receiving compensation therefor.

 

 

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ARTICLE IV

SECTION 1. Committees of the Board. The Board shall designate such committees as may be required by the rules of the New York Stock Exchange (or any other principal United States exchange upon which the shares of the Corporation may be listed) and may from time to time designate other committees of the Board (including an executive committee), with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee.

SECTION 2. Conduct of Business. Any committee, to the extent allowed by law and provided in the resolution establishing such committee or the charter of such committee, shall have and may exercise all the duly delegated powers and authority of the Board in the management of the business and affairs of the Corporation. The Board shall have the power to prescribe the manner in which proceedings of any such committee shall be conducted. In the absence of any such prescription, any such committee shall have the power to prescribe the manner in which its proceedings shall be conducted. Unless the Board or such committee shall otherwise provide, regular and special meetings and other actions of any such committee shall be governed by the provisions of ARTICLE III applicable to meetings and actions of the Board. Each committee shall keep regular minutes and report on its actions to the Board.

ARTICLE V

SECTION 1. Number; Term of Office. The officers of the Corporation shall be elected by the Board and may consist of: a Chairman of the Board, a Chief Executive Officer, a President, a Chief Operating Officer, a Chief Financial Officer and one or more Vice Presidents (including, without limitation, Assistant, Executive, Senior Vice Presidents) and a Treasurer, Secretary and Controller and such other officers and agents with such titles and such duties as the Board may from time to time determine, each to have such authority, functions or duties as in these By-laws provided or as the Board may from time to time determine, and each to hold office for such term as may be prescribed by the Board and until such person’s successor shall have been chosen and shall qualify, or until such person’s death or resignation, or until such person’s removal in the manner hereinafter provided. One person may hold the offices and perform the duties of any two or more of said officers; provided, however, that no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required by law, the Certificate or these By-laws to be executed, acknowledged or verified by two or more officers. The Board may require any officer or agent to give security for the faithful performance of such person’s duties.

SECTION 2. Removal. Subject to Section 14 of this Article V, any officer may be removed, either with or without cause, by the Board at any meeting thereof called for the purpose, by the Chief Executive Officer, or by any other superior officer upon whom such power may be conferred by the Board.

SECTION 3. Resignation. Any officer may resign at any time by giving notice to the Board, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later date specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

SECTION 4. Chairman of the Board. The Chairman of the Board may be an officer of the Corporation, subject to the control of the Board, and shall report directly to the Board. The Chairman shall be appointed by a majority of the Whole Board and shall have such duties and responsibilities as the Board from time to time shall determine.

SECTION 5. Chief Executive Officer. The Chief Executive Officer shall have general supervision and direction of the business and affairs of the Corporation, subject to the control of the Board, and shall report directly to the Board.

 

 

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SECTION 6. President. The President shall perform such senior duties as he may agree with the Chief Executive Officer (if the position is held by an individual other than the Chief Executive Officer) or as the Board shall from time to time determine.

SECTION 7. Chief Operating Officer. The Chief Operating Officer shall perform such senior duties in connection with the operations of the Corporation as he may agree with the Chief Executive Officer or as the Board shall from time to time determine.

SECTION 8. Chief Financial Officer. The Chief Financial Officer shall perform all the powers and duties of the office of the chief financial officer and in general have overall supervision of the financial operations of the Corporation. The Chief Financial Officer shall, when requested, consult with and advise the other officers of the Corporation and shall perform such other duties as the Chief Executive Officer or the Board may from time to time determine.

SECTION 9. Vice Presidents. Any Vice President shall have such powers and duties as shall be prescribed by his superior officer or the Board. A Vice President shall, when requested, consult with and advise the other officers of the Corporation and shall perform such other duties as the Chief Executive Officer or the Board may from time to time determine. A Vice President need not be an officer of the Corporation and shall not be deemed an officer of the Corporation unless elected by the Board.

SECTION 10. Treasurer. The Treasurer shall supervise and be responsible for all the funds and securities of the Corporation; the deposit of all moneys and other valuables to the credit of the Corporation in depositories of the Corporation; borrowings and compliance with the provisions of all indentures, agreements and instruments governing such borrowings to which the Corporation is a party; the disbursement of funds of the Corporation and the investment of its funds; and in general shall perform all of the duties incident to the office of the Treasurer. The Treasurer shall, when requested, consult with and advise the other officers of the Corporation and shall perform such other duties as the Chief Executive Officer, the Chief Financial Officer or the Board may from time to time determine.

SECTION 11. Controller. The Controller shall be the chief accounting officer of the Corporation. The Controller shall, when requested, consult with and advise the other officers of the Corporation and shall perform such other duties as the Chief Executive Officer, the Chief Financial Officer or the Board may from time to time determine.

SECTION 12. Secretary. It shall be the duty of the Secretary to act as secretary at all meetings of the Board, of the committees of the Board and of the stockholders and to record the proceedings of such meetings in a book or books to be kept for that purpose; the Secretary shall see that all notices required to be given by the Corporation are duly given and served; the Secretary shall be custodian of the seal of the Corporation and when deemed necessary shall affix the seal or cause it to be affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these By-laws; the Secretary shall have charge of the books, records and papers of the Corporation and shall see that the reports, statements and other documents required by law to be kept and filed are properly kept and filed; and in general shall perform all of the duties incident to the office of Secretary. The Secretary shall, when requested, consult with and advise the other officers of the Corporation and shall perform such other duties as the Chief Executive Officer or, the Board may from time to time determine.

SECTION 13. Assistant Treasurers, Assistant Controllers and Assistant Secretaries. Any Assistant Treasurers, Assistant Controllers and Assistant Secretaries shall perform such duties as shall be assigned to them by the Board or by the Treasurer, Controller or Secretary, respectively, or by the Chief Executive Officer. An Assistant Treasurer, Assistant Controller or Assistant Secretary need not be an officer of the Corporation and shall not be deemed an officer of the Corporation unless elected by the Board.

SECTION 14. Additional Matters. The Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer and the Chief Financial Officer of the Corporation shall have the authority to designate employees of the Corporation to have the title of Vice President, Assistant Vice President, Assistant Treasurer, Assistant Controller or Assistant Secretary. Any employee so designated shall have the powers and duties determined by the officer making such designation. The persons upon whom such titles are conferred shall not be deemed officers of the Corporation unless elected by the Board.

 

ARTICLE VI

SECTION 1. Right to Indemnification. The Corporation, to the fullest extent permitted or required by the General Corporation Law of the State of Delaware (the “DGCL”) or other applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment and unless applicable law otherwise requires, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), shall indemnify and hold harmless any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceedings by or in the right of the Corporation to procure a judgment in its favor) (a “Proceeding”) by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) (a “Covered Entity”) against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer unless the proceeding was commenced after a Change in Control (as defined below). Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an “Indemnitee”. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive payment in advance of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of the DGCL or other applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment and unless applicable law otherwise requires, only to the extent that such amendment permits the Corporation to provide broader rights to payment of expenses than such law permitted the Corporation to provide prior to such amendment), and the other provisions of this Article VI.

 

 

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For purposes of this Section 1, “Change in Control” means the occurrence of any of the following: (w) any merger or consolidation of the Corporation in which the Corporation is not the continuing or surviving corporation or pursuant to which shares of the Corporation’s Common Stock would be converted into cash, securities or other property, other than a merger of the Corporation in which the holders of the Corporation’s Common Stock immediately prior to the merger have the same proportionate ownership of common stock of the surviving corporation immediately after the merger, (x) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, the assets of the Corporation, or the liquidation or dissolution of the Corporation or (y) individuals who would constitute a majority of the members of the Board elected at any meeting of stockholders or by written consent (without regard to any members of the Board elected pursuant to the terms of any series of Preferred Stock) shall be elected to the Board and the election or the nomination for election by the stockholders of such directors was not approved by a vote of at least two-thirds of the directors in office immediately prior to such election.

SECTION 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article VI or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article VI, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article VI and may create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided or authorized in this Article VI.

SECTION 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article VI shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article VI shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article VI and shall be applicable to Proceedings commenced or continuing after the adoption of this Article VI, whether arising from acts or omissions occurring before or after such adoption.

SECTION 4. Severability. If any provision or provisions of this Article VI shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Article VI (including, without limitation, all portions of any paragraph of this Article VI containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VI (including, without limitation, all portions of any paragraph of this Article VI containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or enforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.

SECTION 5. Indemnification of Employees Serving as Directors. The Corporation, to the fullest extent of the provisions of this Article VI with respect to the indemnification of directors and officers of the Corporation, shall indemnify any person who is or was an employee of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such employee is or was serving (a) as a director of a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50% or greater equity interest (a “Subsidiary Director”) or (b) at the written request of an Authorized Officer, as a director of another corporation in which the Corporation had at the time of such service, directly or indirectly, a less than 50% equity interest (or no equity interest at all) or in a capacity equivalent to that of a director for any partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) in which the Corporation has an interest (a “Requested Employee”), against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Subsidiary Director or Requested Employee in connection with such Proceeding. The Corporation, to the fullest extent of the provisions of this Article VI with respect to the advancement of expenses of directors and officers of the Corporation, shall also advance expenses incurred by any such Subsidiary Director or Requested Employee in connection with any such Proceeding, consistent with the provisions of this Article VI with respect to the advancement of expenses of directors and officers of the Corporation.

 

 

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 For purposes of this Section 5, “Authorized Officer” means any one of the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, any Vice President or the Secretary of the Corporation.

SECTION 6. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article VI, the Corporation, to the fullest extent of the provisions of this Article VI with respect to the indemnification of directors and officers of the Corporation, may indemnify any person other than a director or officer of the Corporation, a Subsidiary Director or a Requested Employee, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation or of a Covered Entity against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of this Article VI with respect to the advancement of expenses of directors and officers of the Corporation.

ARTICLE VII

SECTION 1. Uncertificated Shares. The shares of stock of the Corporation shall be uncertificated shares that are evidenced by a book-entry system maintained by the registrar of such stock.

 

The stock ledger shall be kept by the Secretary or by a transfer agent or by a registrar or by any other officer or agent designated by the Board.

SECTION 2. Transfer of Shares. Transfers of shares of stock of each class of the Corporation shall be made only on the books of the Corporation upon authorization by the registered holder thereof, or by such holder’s attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary or a transfer agent for such stock, if any; provided, however, that the Corporation shall be entitled to recognize and enforce any lawful restriction on transfer. The person in whose name shares are registered on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation; provided, however, that whenever any transfer of shares shall be made for collateral security and not absolutely, and written notice thereof shall be given to the Secretary or to such transfer agent, such fact shall be stated in the entry of the transfer. No transfer of shares shall be valid as against the Corporation, its stockholders and creditors for any purpose, except to render the transferee liable for the debts of the Corporation to the extent provided by law, until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred.

SECTION 3. Registered Stockholders and Addresses of Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its records as the owner of shares of stock to receive dividends and to vote as such owner, shall be entitled to hold liable for calls and assessments a person registered on its records as the owner of shares of stock, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares of stock on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.

Each stockholder shall designate to the Secretary or transfer agent of the Corporation an address at which notices of meetings and all other corporate notices may be given to such person, and, if any stockholder shall fail to designate such address, corporate notices may be given to such person by mail directed to such person at such person’s post office address, if any, as the same appears on the stock record books of the Corporation or at such person’s last known post office address.

 

 

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SECTION 4. Regulations. The Board may make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of shares of stock of each class and series of the Corporation.

SECTION 5. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of the stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 days nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. If in any case involving the determination of stockholders for any purpose other than notice of or voting at a meeting of stockholders the Board shall not fix a record date, then the record date for determining stockholders for such purpose shall be the earlier of the close of business on the day on which the Board shall adopt the resolution relating thereto and the close of business on the 60th day prior to the action for which the determination of stockholders is being made.  A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

SECTION 6. Transfer Agents and Registrars. The Board may appoint, or authorize any officer or officers to appoint, one or more transfer agents and one or more registrars.

ARTICLE VIII

The Board shall approve a suitable corporate seal, which shall be in the form of a circle and shall bear the full name of the Corporation and shall be in the charge of the Secretary. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

ARTICLE IX

The fiscal year of the Corporation shall end on the Saturday closest to the last day of April each year.

ARTICLE X

Whenever any notice whatsoever is required to be given by these By-laws, by the Certificate or by law, the person entitled thereto may, either before or after the meeting or other matter in respect of which such notice is to be given, waive such notice in writing or as otherwise permitted by law, which shall be filed with or entered upon the records of the meeting or the records kept with respect to such other matter, as the case may be, and in such event such notice need not be given to such person and such waiver shall be deemed equivalent to such notice.

ARTICLE XI

These By-laws may be altered, amended or repealed, in whole or in part, or new By-laws may be adopted by the stockholders or by the Board at any meeting thereof; provided, however, that notice of such alteration, amendment, repeal or adoption of new By-laws is contained in the notice of such meeting of the stockholders or in the notice of such meeting of the Board and, in the latter case, such notice is given not less than twenty-four hours prior to the meeting. Unless a higher percentage is required by the Certificate, all such amendments must be approved by either the holders of a majority of the combined voting power of the outstanding shares of all classes and series of capital stock of the Corporation entitled generally to vote in the election of directors of the Corporation, voting as a single class, or by a majority of the Board.

 

 

---

 

ARTICLE XII

SECTION 1. Execution of Documents. The Board or any committee thereof shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, notes, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confined to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.

SECTION 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any committee thereof or any officer of the Corporation to whom power in respect of financial operations shall have been delegated by the Board or any such committee or in these By-laws shall select.

 

SECTION 3. Checks. All checks, drafts and other orders for the payment of money out of the funds of the Corporation, and all notes or other evidences of indebtedness of the Corporation, shall be signed on behalf of the Corporation in such manner as shall from time to time be determined by resolution of the Board or of any committee thereof or by any officer of the Corporation to whom power in respect of financial operations shall have been delegated by the Board or any such committee thereof or as set forth in these By-laws.

SECTION 4. Proxies in Respect of Stock or Other Securities of Other Corporations. The Board or any committee thereof shall designate the officers of the Corporation who shall have authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation or other entity, and to vote or consent in respect of such stock or securities; such designated officers may instruct the person or persons so appointed as to the manner of exercising such powers and rights; and such designated officers may execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal, or otherwise, such written proxies, powers of attorney or other instruments as they may deem necessary or proper in order that the Corporation may exercise its said powers and rights.

SECTION 5. Subject to Law and Certificate of Incorporation. All powers, duties and responsibilities provided for in these By-laws, whether or not explicitly so qualified, are qualified by the provisions of the Certificate and applicable laws.

SECTION 6. Forum Selection. Unless the Corporation consents in writing to the selection of an alternative forum, a state or federal court located within the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL or (d) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 6.

Exhibit 10.1

 

ARTICLE I
Definitions
SECTION 1.01.  Defined Terms	1
ARTICLE II
Services to be Provided
SECTION 2.01.  Provision of Services	2
SECTION 2.02.  Agreement Coordinators	2
SECTION 2.03.  Performance Standard	3
SECTION 2.04.  Warranty Disclaimer	3
SECTION 2.05.  Consents	3
ARTICLE III
Term; Fees Reports
SECTION 3.01.  Service Term	3
SECTION 3.02.  Early Termination	4
SECTION 3.03.  Fees and Costs	4
ARTICLE IV
Monthly Statements; Audits; Disagreements; Taxes
SECTION 4.01.  Monthly Statements	4
SECTION 4.02.  Books and Records; Audits	5
SECTION 4.03.  Disagreements	5
SECTION 4.04.  Taxes	6
ARTICLE V
Recipient Assistance
SECTION 5.01.  Recipient Assistance	7
ARTICLE VI
Limitation on Liability
SECTION 6.01.  Limitation on Liability	7

ARTICLE VII
Force Majeure
SECTION 7.01.  Force Majeure		8
ARTICLE VIII
Miscellaneous
SECTION 8.01.  Entire Agreement; Third Party Beneficiaries		8
SECTION 8.02.  Notices		8
SECTION 8.03.  Successors and Assignment		9
SECTION 8.04.  Amendment		9
SECTION 8.05.  Waivers		9
SECTION 8.06.  Books and Records		9
SECTION 8.07.  Governing Law; Submission to Jurisdiction; Waiver of		10
	Jury Trial
SECTION 8.08.  Severability		11
SECTION 8.09.  Counterparts		11
SECTION 8.10.  Headings		11
SECTION 8.11.  Interpretation		11

Description of Service:	End Date:	Fee:
HR Administration:  B&N shall provide BNED general advice, consultation for benefits administration, timekeeping and processing for payroll services.	December 31, 2016.   BNED has the option to extend the end date of payroll processing service to December 31, 2017.	Pro rata share of HR service center costs (based upon average employee count).   Pass-Through Cost for all other HR Administration services.
Learning and Development (Navex Global):  B&N shall provide BNED access to the Preventing Workplace Harassment course from the Navex Global, provided such vendors consent to B&N’s provision of such access to BNED.	February 4, 2017	No cost.
Learning and Development (Trivantis):  B&N shall provide BNED access to the LMS by Trivantis, provided such vendors consent to B&N’s provision of such access to BNED.	The first anniversary of the date of this Agreement.	20% of B&N’s Annual payment to Trivantis.

Description of Service:	End Date:	Fee:
Expenses:  B&N shall continue to make available to BNED its expense payment services provided by Concur under contract.	The first anniversary of the date of this Agreement.	Pass-Through Cost.
Travel Services:  B&N shall continue to make available to BNED its travel services provided by American Express Company under contract, provided such vendor permits B&N’s provision of such services to BNED.	The second anniversary of the date of this Agreement.	Pass-Through Cost.

Description of Service:	End Date:	Fee:
Metadata Feed for Digital Trade Books:  B&N will make available metadata relating to digital trade books.	The six-month anniversary of the date of this Agreement.	$30,000 per month.
Customer Service:  B&N will provide staffing oversight of third party customer service agents, review and analyze consolidated reports from third party and audit third party invoicing.  B&N will also host and maintain the customer service toll-free lines staffed by third party.	The two-year anniversary of the date of this Agreement.	$2,000 per month plus Pass-Through Costs.

Description of Service:	End Date:	Fee:
Legal:  General legal advice and services.	The six-month anniversary of the date of this Agreement.	For services provided by B&N employees:  Pass-Through Cost.   For outside Service Providers, all direct costs to B&N relating to such Service directly attributable to BNED.
Treasury:  General advice and consultation in the areas of cash management, management of bank lines, and management of cash investments.	The six-month anniversary of the date of this Agreement.
Investor Relations:  General advice and consultation in the areas of investor relations, investor website management, investor webcast and quarterly conference call preparation, Annual Report preparation and press release preparation and dissemination.	The 60th day after the date of this Agreement.
PR:  Assistance with public relations and media strategy, issuing press releases, organizing and holding briefings, author launch events, device launch events and other launch events and general media and public relations services, including through the use of and provision of access to outside public relations firms and other relevant external service providers.	The 60th day after the date of this Agreement.
SEC Reporting:  General advice and consultation relating to SEC reporting obligations, including advice on filing through EDGAR.	The 90th day after the date of this Agreement.
Tax:  General advice and consultation in the areas of federal and state tax planning and compliance, management of open audits, tax accounting, general advice on audit dispute resolution, calculation of estimated tax payments, tax compliance software selection, and preparation, review and filing of all tax returns.	The 18-month anniversary of the date of this Agreement.

Insurance/Risk Management:  General advice, consultation and performance of duties in the areas of broker selection, review of bids, selection and monitoring of insurers/underwriters, communications with brokers and underwriters, claims management and reporting, and interpretation of reports inclusive of Worker’s Compensation plans and vendors.	The six-month anniversary of the date of this Agreement.	For services provided by B&N employees:  Pass-Through Cost.   For outside Service Providers, all direct costs to B&N relating to such Service directly attributable to BNED.
Payments Administration under Certain Insurance Policies:  B&N shall manage and administer payments on Pre-Separation Insurance Claims under the insurance policies identified in Section 8.01(c) of the Separation Agreement on behalf of BNED in accordance with the Separation Agreement.  BNED shall pay B&N for such management and administration on a monthly basis.	Until such Pre-Separation Insurance Claims are resolved.	Pass-Through Cost.
Internal Audit: General advice and consultation regarding internal audit procedures.	The six-month anniversary of the date of this Agreement.	Pass-Through Cost.

Description of Service:	End Date:	Fee:
Reflexis Eplanner System:  The hosting of the Reflexis eplanner system, provided such vendor permits B&N’s provision of such services to BNED.	The first anniversary of the date of this Agreement.	$1,667 per month.
Datacenter Monitoring:  B&N will monitor the uptime and performance of the datacenter during off-hours when BNED does not have staff to undertake such monitoring.	The first anniversary of the date of this Agreement.	$1,667 per month.
Payroll Processing: B&N will provide BNED with continued access to and use of the Payroll and HR/Benefits System provided by Peoplesoft’s online self-service system.  The services provided include printing payroll checks, direct deposit advices, and W-2s.  Incremental vendor costs, if any, shall be born by BNED.	December 31, 2016.   BNED has the option to extend the end date to December 31, 2017.	$2.50 per BNED employee per month.

Description of Service:	End Date:	Fee:
Freight Claims:  B&N shall process the freight claims arising out of or relating to the daily operation of BNED Business on behalf of BNED.	The first anniversary of the date of this Agreement.	Pass-Through Cost.

A-7

 

 

 

TAX MATTERS AGREEMENT

By and Between

BARNES & NOBLE, INC.

and

BARNES & NOBLE EDUCATION, INC.

Dated as of August 2, 2015

 

 

 

 

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TABLE OF CONTENTS

 

---

 

 

 

 

---

 

 

ARTICLE I
Definitions
SECTION 1.01.	Definitions	1
SECTION 1.02.	Glossary of Defined Terms	4
ARTICLE II
General Principles
SECTION 2.01.	BNED Employees	4
SECTION 2.02.	Transferred to BNED Employees	5
SECTION 2.03.	Collectively Bargained Employees	5
SECTION 2.04.	Liabilities	5
SECTION 2.05.	Benefit Plans	5
SECTION 2.06.	Payroll Services	6
ARTICLE III
Bonuses
SECTION 3.01.	BNED Employee Annual Bonuses	6
SECTION 3.02.	BNED Employee Retention Bonuses	6
ARTICLE IV
Service Credit
SECTION 4.01.	B&N Benefit Plans	6
SECTION 4.02.	BNED Benefit Plans	6
ARTICLE V
Severance
SECTION 5.01.	Post-Distribution Severance	7
SECTION 5.02.	Transferred To BNED Employees	7

ARTICLE VI
Certain Welfare Benefit Plan Matters
SECTION 6.01.	BNED Welfare Plans	7
SECTION 6.02.	Allocation of Welfare Benefit Claims	7
SECTION 6.03.	Workers’ Compensation Claims	8
SECTION 6.04.	COBRA	8
ARTICLE VII
Defined Benefit Pension Plan
SECTION 7.01.	B&N Defined Benefit Pension Plan	9
ARTICLE VIII
Defined Contribution Plan
SECTION 8.01.	BNED 401(k) Plan	9
SECTION 8.02.	Trust-to-Trust Transfer	9
SECTION 8.03.	Employer 401(k) Plan Contributions	10
SECTION 8.04.	Limitation of Liability	10
ARTICLE IX
Nonqualified Deferred Compensation
SECTION 9.01.	B&N Deferred Compensation Plan	10
SECTION 9.02.	Section 409A	10
ARTICLE X
Flexible Spending Arrangements; Transportation Reimbursement Arrangements
SECTION 10.01.	Flexible Spending Arrangements	11
SECTION 10.02.	Transportation Reimbursement Arrangements	11
ARTICLE XI
Vacation
SECTION 11.01.	Vacation	12

ARTICLE XII
B&N Equity Compensation Awards
SECTION 12.01.	Treatment of Outstanding B&N Stock Options	13
SECTION 12.02.	Treatment of Outstanding B&N Restricted Stock Units	13
SECTION 12.03.	Treatment of Outstanding B&N Restricted Shares	13
ARTICLE XIII
Benefit Plan Reimbursements
SECTION 13.01.	Pre-Separation Benefit Plan Matters	14
ARTICLE XIV
Cooperation; Access to Information; Litigation; Confidentiality
SECTION 14.01.	Cooperation	14
SECTION 14.02.	Access to Information; Litigation; Confidentiality	15
ARTICLE XV
Reimbursements
SECTION 15.01.	Reimbursements by the BNED Group	15
SECTION 15.02.	Invoices	15
ARTICLE XVI
Termination
SECTION 16.01.	Termination	15
SECTION 16.02.	Effect of Termination	15
ARTICLE XVII
Indemnification
SECTION 17.01.	Incorporation of Indemnification Provisions of Separation Agreement	15

ARTICLE XVIII
Further Assurances; Tax Treatment of Certain Amounts Paid Pursuant to this Agreement
SECTION 18.01.	Further Assurances	15
SECTION 18.02.	Tax Treatment of Certain Amounts Paid Pursuant to this Agreement	16
ARTICLE XIX
Miscellaneous
SECTION 19.01.	Administration	17
SECTION 19.02.	Employment Tax Reporting Responsibility	17
SECTION 19.03.	Confidentiality	17
SECTION 19.04.	Additional Provisions	18

Definition	Section
Agreement	Preamble
BNED	Preamble
BNED 401(k) Plan	8.01
BNED Cafeteria Plan	10.01(a)
BNED Restricted Share	12.03
BNED Transportation Plan	10.02(a)
BNED Welfare Plans	6.01
BNED Workers’ Compensation Plan	6.03
B&N	Preamble
B&N 401(k) Plan	8.01
B&N Benefit Plan Costs	13.01
B&N Cafeteria Plan	10.01(a)
B&N COBRA Costs	13.01
B&N Deferred Compensation Plan	9.01
B&N Option	12.01
B&N Pension Plan	7.01
B&N Restricted Share	12.03
B&N RSU	12.02
B&N Transportation Plan	10.02(a)
B&N Workers’ Compensation Plan	6.03
Claiming Party	18.02(f)
Converted BNED RSUs	12.02
Other Party	18.02(g)
Parties	Preamble
Separation Agreement	Recitals
Specified Welfare Plan Date	6.01
Transferred to BNED Employee	2.02

 

1.	Carolyn Brown
2.	Thomas Donohue
3.	Lisa Feldstein
4.	Tapan Garg
5.	Michael P. Huseby
6.	Kanuj Malhotra
7.	Philip O’Reilly

1.	Barnes & Noble Education, Inc. 401(k) Plan
2.	Barnes & Noble Education, Inc. Comprehensive Medical & Dental Plan *
3.	Barnes & Noble Education, Inc. Life Insurance and AD&D Plan
4.	Barnes & Noble Education, Inc. Business Travel Accident Plan
5.	Barnes & Noble Education, Inc. HMO Plans (Kaiser; HMSA)
6.	Barnes & Noble Education, Inc. Long-Term Disability Plan
7.	Barnes & Noble Education, Inc. Short-Term Disability Plan*
8.	Barnes & Noble Education, Inc. Healthcare Flexible Spending Account Plan
9.	Vacation Policy
10.	Sick Day Policy
11.	Personal Day Policy
12.	Bereavement Policy
13.	Jury Duty Policy
14.	Continuing Education / Tuition Assistance
15.	Transit Program
16.	Employee Assistance Program
17.	Premium Conversion Plan
18.	Merchandise Discounts
19.	Workers Compensation
20.	Amended and Restated Barnes & Noble, Inc. 2009 Incentive Plan

1.	Retention Bonus Agreements dated February 7, 2014, between Barnes & Noble, Inc. and the following:
	a.	Barry Brover
	b.	Stephen Culver
	c.	Thomas Donohue
	d.	Joel Friedman
	e.	Joanne Magill
	f.	Lisa Malat
	g.	Kanuj Malhotra
	h.	Patrick Maloney
	i.	Philip O’Reilly
2.	Retention Bonus Agreements dated July 1, 2014, between Barnes & Noble College Booksellers, LLC and the following:
	a.	Ann Fraley
	b.	Paul Maloney
	c.	Kim Otte
	d.	Chris Peterson
	e.	Brian Stark
3.	Retention Bonus Agreement dated October 1, 2014, between Barnes & Noble, Inc. and Tapan Garg

1.	Barnes & Noble Education, Inc. Comprehensive Medical & Dental Plan
2.	Barnes & Noble Education, Inc. Life Insurance and AD&D Plan
3.	Barnes & Noble Education, Inc. Business Travel Accident Plan
4.	Barnes & Noble Education, Inc. HMO Plans (Kaiser; HMSA)
5.	Barnes & Noble Education, Inc. Long-Term Disability Plan
6.	Barnes & Noble Education, Inc. Short-Term Disability Plan
7.	Barnes & Noble Education, Inc. Healthcare Flexible Spending Account Plan
8.	Vacation Policy
9.	Sick Day Policy
10.	Personal Day Policy
11.	Bereavement Policy
12.	Jury Duty Policy
13.	Continuing Education / Tuition Assistance
14.	Transit Program
15.	Employee Assistance Program
16.	Premium Conversion Plan
17.	Merchandise Discounts

Exhibit 10.4

 

 

LICENSOR:	LICENSEE:
BARNES & NOBLE, INC.	BARNES & NOBLE EDUCATION, INC.

 

Exhibit 10.5

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CREDIT AGREEMENT

Dated as of August 3, 2015

among

BARNES & NOBLE EDUCATION, INC.,

as the Lead Borrower,

The Other Borrowers From Time to Time Party Hereto,

The Guarantors From Time to Time Party Hereto,

BANK OF AMERICA, N.A.,

as Administrative Agent, Collateral Agent and

Swing Line Lender,

The Other Lenders From Time to Time Party Hereto,

JPMORGAN CHASE BANK, N.A.,

WELLS FARGO BANK, NATIONAL ASSOCIATION and

SUNTRUST BANK

as Co-Syndication Agents,

CITIZENS BANK, N.A. and

REGIONS BANK,

as Co-Documentation Agents,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

J.P. MORGAN SECURITIES LLC,

WELLS FARGO BANK, NATIONAL ASSOCIATION, and

SUNTRUST ROBINSON HUMPHREY, INC.

as Joint Lead Arrangers and Joint Book Runners

 

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TABLE OF CONTENTS

 

ARTICLE I		DEFINITIONS AND ACCOUNTING TERMS	1
1.01		Defined Terms	1
1.02		Other Interpretive Provisions	44
1.03		Accounting Terms	44
1.04		Rounding	45
1.05		Times of Day; Rates	45
1.06		Letter of Credit Amounts	45
1.07		Ratio Adjustments for Acquisitions and Dispositions	45
1.08		[Intentionally Omitted.]	46
1.09		Notices Generally	46
ARTICLE II		THE COMMITMENTS AND CREDIT EXTENSIONS	46
2.01		Committed Loans; Reserves	46
2.02		Borrowings, Conversions and Continuations of Committed Loans	47
2.03		Letters of Credit	49
2.04		Swing Line Loans	58
2.05		Prepayments	60
2.06		Termination or Reduction of Commitments	62
2.07		Repayment of Loans	62
2.08		Interest	62
2.09		Fees	63
2.10		Computation of Interest and Fees	63
2.11		Evidence of Debt	63
2.12		Payments Generally; Administrative Agent’s Clawback	64
2.13		Sharing of Payments by Lenders	66
2.14		Settlement Among Lenders	66
2.15		Increase in Commitments	67
2.16		Cash Collateral	68
2.17		Defaulting Lenders	69
ARTICLE III		TAXES, YIELD PROTECTION AND ILLEGALITY; APPOINTMENT OF LEAD BORROWER	71
3.01		Taxes	71
3.02		Illegality	76
3.03		Inability to Determine Rates	76
3.04		Increased Costs; Reserves on LIBO Rate Loans	77
3.05		Compensation for Losses	78

3.06		Mitigation Obligations; Replacement of Lenders	79
3.07		Survival	79
3.08		Designation of Lead Borrower as Borrowers’ Agent	79
ARTICLE IV		CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	80
4.01		Conditions of Initial Credit Extension	80
4.02		Conditions to all Credit Extensions	82
ARTICLE V		REPRESENTATIONS AND WARRANTIES	83
5.01		Existence, Qualification and Power	83
5.02		Authorization; No Contravention	83
5.03		Governmental Authorization; Other Consents	84
5.04		Binding Effect	84
5.05		Financial Statements; No Material Adverse Effect	84
5.06		Litigation	85
5.07		No Default	85
5.08		Ownership of Property; Liens	85
5.09		[Intentionally Omitted]	85
5.10		Insurance	85
5.11		Taxes	85
5.12		ERISA Compliance	85
5.13		Subsidiaries; Equity Interests	86
5.14		Margin Regulations; Investment Company Act	86
5.15		Disclosure	87
5.16		Compliance with Laws	87
5.17		Intellectual Property; Licenses, Etc	87
5.18		Labor Matters	87
5.19		Security Documents	88
5.20		Solvency	88
5.21		Deposit and Securities Accounts; Credit Card Arrangements	88
5.22		Brokers	88
5.23		Customer and Trade Relations	88
5.24		Storage Locations	89
5.25		OFAC	89
5.26		Anti-Corruption Laws	89
ARTICLE VI		AFFIRMATIVE COVENANTS	89
6.01		Financial Statements	89

6.02		Certificates; Other Information	90
6.03		Notices	92
6.04		Payment of Obligations	93
6.05		Preservation of Existence, Etc	94
6.06		Maintenance of Properties	94
6.07		Maintenance of Insurance	94
6.08		Compliance with Laws	95
6.09		Books and Records; Accountants; Corporate Separateness	95
6.10		Inspection Rights	96
6.11		Use of Proceeds	97
6.12		Additional Loan Parties; Additional Collateral; Further Assurances	97
6.13		Cash Management	98
6.14		Information Regarding the Collateral	100
6.15		Physical Inventories	101
6.16		[Intentionally Omitted.]	101
6.17		[Intentionally Omitted.]	101
6.18		[Intentionally Omitted.]	101
6.19		Compliance with ERISA	101
6.20		[Intentionally Omitted.]	101
6.21		Anti-Corruption Laws	101
ARTICLE VII		NEGATIVE COVENANTS	102
7.01		Liens	102
7.02		Investments	104
7.03		Indebtedness; Disqualified Stock	106
7.04		Fundamental Changes	107
7.05		Dispositions	107
7.06		Restricted Payments	108
7.07		Prepayments of Indebtedness	109
7.08		Change in Nature of Business	109
7.09		Transactions with Affiliates	109
7.10		Burdensome Agreements	109
7.11		Use of Proceeds	110
7.12		Amendment of Organizational Documents or Material Indebtedness	110
7.13		Corporate Name; Fiscal Year	110
7.14		Deposit Accounts; Credit Card Processors	110

7.15		Consolidated Fixed Charge Coverage Ratio	110
7.16		[Intentionally Omitted]	111
7.17		Sanctions	111
7.18		Anti-Corruption Laws	111
ARTICLE VIII		EVENTS OF DEFAULT AND REMEDIES	111
8.01		Events of Default	111
8.02		Remedies Upon Event of Default	113
8.03		Application of Funds	114
ARTICLE IX		ADMINISTRATIVE AGENT	115
9.01		Appointment and Authority	115
9.02		Rights as a Lender	116
9.03		Exculpatory Provisions	116
9.04		Reliance by Agents	117
9.05		Delegation of Duties	117
9.06		Resignation of Agents	118
9.07		Non-Reliance on Administrative Agent and Other Lenders	119
9.08		No Other Duties, Etc	119
9.09		Administrative Agent May File Proofs of Claim	119
9.10		Collateral and Guaranty Matters	120
9.11		Notice of Transfer	121
9.12		Reports and Financial Statements	121
9.13		Agency for Perfection	122
9.14		Indemnification of Agents	122
9.15		Relation among Lenders	122
ARTICLE X		MISCELLANEOUS	123
10.01		Amendments, Etc	123
10.02		Notices; Effectiveness; Electronic Communications	124
10.03		No Waiver; Cumulative Remedies	126
10.04		Expenses; Indemnity; Damage Waiver	127
10.05		Payments Set Aside	129
10.06		Successors and Assigns	129
10.07		Treatment of Certain Information; Confidentiality	133
10.08		Right of Setoff	134
10.09		Interest Rate Limitation	135
10.10		Counterparts; Integration; Effectiveness	135

10.11		Survival	135
10.12		Severability	136
10.13		Replacement of Lenders	136
10.14		Governing Law; Jurisdiction; Etc	136
10.15		Waiver of Jury Trial	137
10.16		No Advisory or Fiduciary Responsibility	138
10.17		USA PATRIOT Act Notice	138
10.18		Foreign Assets Control Regulations	139
10.19		Time of the Essence	139
10.20		Press Releases	139
10.21		Additional Waivers; Keepwell	139
10.22		No Strict Construction	141
10.23		Attachments	141
10.24		Copies and Facsimiles	141
ARTICLE XI		GUARANTY	142
11.01		Guaranty	142
11.02		Guaranty of Payment	142
11.03		No Discharge or Diminishment of Facility Guaranty	142
11.04		Defenses Waived	143
11.05		Rights of Subrogation	143
11.06		Reinstatement; Stay of Acceleration	143
11.07		Information	143
11.08		[Intentionally Omitted]	143
11.09		Maximum Liability	143
11.10		Contribution	144
11.11		Liability Cumulative	144
11.12		Release of Guarantors and Borrowers	144