Form 8-K/A BARNES & NOBLE INC For: Feb 17
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E-mailUNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
Amendment No. 1
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 17, 2015 (December 3, 2014)
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BARNES & NOBLE, INC.
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(Exact name of registrant as specified in its charter)
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Delaware
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1-12302
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06-1196501
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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122 Fifth Avenue, New York, New York
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10011
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (212) 633-3300
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Not Applicable
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(Former name or former address, if changed since last report)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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| Item 1.01. | Entry into a Material Definitive Agreement. |
On December 4, 2014, Barnes & Noble, Inc. (the “Company”) filed a Current Report on Form 8−K (the “Report”) with the Securities and Exchange Commission (the “Commission”) that had, as its Exhibit 10.1, a Commercial Agreement Amendment and Termination Agreement and Patent Agreement Amendment (the “Commercial Agreement Termination Agreement”) with Microsoft Corporation, a Washington corporation, NOOK Media LLC, a Delaware limited liability company, barnesandnoble.com llc, a Delaware limited liability company, and Microsoft Licensing GP, a Nevada general partnership. Portions of the Commercial Agreement Termination Agreement were redacted based upon a request for confidential treatment filed with the Commission.
This Amendment No. 1 to the Report is made in response to comments received from the Staff of the Commission regarding the Company’s request for confidential treatment of certain provisions of the Commercial Agreement Termination Agreement. The Company has withdrawn its request for confidential treatment in response to such comments. The Commercial Agreement Termination Agreement filed with this amendment as Exhibit 10.1 reflects the withdrawal of the confidential treatment request and is incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits |
| (d) | The following exhibits are filed as a part of this Report. |
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Exhibit No.
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Description
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10.1
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Commercial Agreement Amendment and Termination Agreement and Patent Agreement Amendment dated as of December 3, 2014, among Microsoft Corporation, Barnes & Noble, Inc., NOOK Media LLC, barnesandnoble.com llc and Microsoft Licensing GP.
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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.
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Date: February 17, 2015
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By:
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/s/ Bradley A. Feuer | ||
| Name: | Bradley A. Feuer | |||
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Vice President, General Counsel and Corporate Secretary
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Exhibit Index
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Exhibit No.
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Description
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10.1
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Commercial Agreement Amendment and Termination Agreement and Patent Agreement Amendment dated as of December 3, 2014, among Microsoft Corporation, Barnes & Noble, Inc., NOOK Media LLC, barnesandnoble.com llc and Microsoft Licensing GP.
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Exhibit 10.1
EXECUTION VERSION
Commercial Agreement Amendment and Termination Agreement
and Patent Agreement Amendment
This Commercial Agreement Termination Agreement and Patent Agreement Amendment (this “Agreement”) is made and entered into among Microsoft Corporation, a Washington corporation (“Microsoft”), Barnes and Noble, Inc., a Delaware corporation (“B&N”), NOOK Media LLC, a Delaware limited liability company (“NewCo”), barnesandnoble.com llc, a Delaware limited liability company, and Microsoft Licensing GP (“MLGP”), a Nevada general partnership, effective as of December 3, 2014 (the “Termination Effective Date”).
Background and Purpose
A. Microsoft, B&N and NewCo previously entered into a Commercial Agreement with an Effective Date of October 4, 2012, as amended by Amendment No. 1 and the Amended and Restated Exhibit E to the Commercial Agreement (the Commerce Platform Agreement) and Amendment No. 2 dated March 10, 2014 (collectively, the “Commercial Agreement”). Capitalized terms that are used without definition herein shall have the meanings assigned to them in the Commercial Agreement.
B. Microsoft, B&N and NewCo desire to amend and terminate the Commercial Agreement as set forth in this Agreement.
C. B&N, barnesandnoble.com llc, Microsoft and MLGP previously entered into a Confidential Settlement and Patent License Agreement effective as of April 27, 2012, under which B&N’s obligations were assumed by NewCo (collectively, the “Patent Agreement”).
D. B&N, barnesandnoble.com llc, Microsoft and MLGP desire to amend the Patent Agreement as set forth in this Agreement.
Agreement
The parties therefore agree as follows:
Section 1. Amendment of Commercial Agreement.
B&N, NewCo and Microsoft hereby amend the Commercial Agreement to replace Section 11.7 with the following new Section 11.7:
“11.7 Survival. Only Sections 1.1 (and all other definitions), 7.6, 8.1, 9, 10.1, 10.6, 10.7, 11.7, 12, 13 (except 13.4) and 14 (excluding Section 14.1 and the portion of Section 14.5 after the first three sentences); and Exhibit A of this Agreement will survive any expiration or termination of this Agreement; provided that the restrictions in Sections 8.1.1 and 8.1.2 will survive only until the date that is two years after the Termination Effective Date.”
Section 2. Termination of Commercial Agreement.
2.1 Termination.
The Commercial Agreement is hereby terminated effective as of the Termination Effective Date. For the avoidance of any doubt, only the provisions listed in Section 1 of this Agreement shall survive the termination of the Commercial Agreement pursuant to this Agreement.
Section 3. Releases.
3.1 Microsoft Release.
Subject to Section 3.4, Microsoft, on behalf of itself and its current and future Affiliates, hereby irrevocably releases and forever discharges each of NewCo and B&N, their respective past and current Affiliates and their respective employees, officers, directors, stockholders, members and principals from any and all claims, actions, causes of action, suits, damages, injuries, duties, rights, obligations, liabilities, adjustments, responsibilities, judgments, trespasses, and demands, whatsoever, in law or in equity, whether known or unknown, suspected to exist or unsuspected to exist, arising out of or relating to the Commercial Agreement or any actual or potential breach thereof.
3.2 B&N/NewCo Releases.
Subject to Section 3.4, e ach of B&N and NewCo, on behalf of itself and its current and future Affiliates, hereby irrevocably releases and forever discharges Microsoft, its past and current Affiliates and their respective employees, officers, directors, stockholders and principals from any and all claims, actions, causes of action, suits, damages, injuries, duties, rights, obligations, liabilities, adjustments, responsibilities, judgments, trespasses, and demands, whatsoever, in law or in equity, whether known or unknown, suspected to exist or unsuspected to exist, arising out of or relating to the Commercial Agreement or any actual or potential breach thereof.
3.3 Express Waiver.
Subject to Section 3.4, e ach of Microsoft, B&N, and NewCo, on behalf of itself and its current and future Affiliates, hereby expressly waive all rights under any statutes (such as, for example, California Civil Code § 1542), legal decisions, or common law principles providing that releases of the type extended in Sections 3.1 and 3.2 of this Agreement do not or may not extend to claims which are unknown, unanticipated, or unsuspected at the time such releases are executed.
3.4 Exceptions.
Sections 3.1, 3.2 and 3.3 do not release, discharge, waive or otherwise apply to any claims, actions, causes of action, suits, damages, injuries, duties, rights, obligations, liabilities, adjustments, responsibilities, judgments, trespasses, and demands arising out of or relating to the parties’ respective obligations, or a party’s breach or default with respect to any of its obligations, under any provision of the Commercial Agreement that survives pursuant to Section 11.7 of the Commercial Agreement, as amended by Section 1 of this Agreement, or this Agreement.
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Section 4. Patent Agreement Amendment.
NewCo, barnesandnoble.com llc, Microsoft and MLGP hereby amend the Patent Agreement by:
(1) inserting a new Section 5.2.4 therein, which shall read as follows:
“5.2.4. Termination upon Certain Sales. Other than a transfer of the Consumer Device Business to Barnes & Noble, Inc. or its Subsidiaries (and assignment of this Agreement to Barnes & Noble, Inc. in conjunction with such transfer), this Agreement shall automatically terminate immediately prior to the spin-off, sale, transfer, or other disposition of all or any portion of the Consumer Device Business through any transaction or series of transactions, including without limitation a sale, transfer or other disposition of barnesandnoble.com llc.”, and
(2) inserting the following sentence at the end of Section 7.6:
“Notwithstanding the foregoing, MLGP may assign this Agreement to Microsoft or a subsidiary of Microsoft by providing written notice to Barnes & Noble, provided such assignment is made subject to, and the transferee accepts, the rights and obligations set forth in this Agreement.”
Section 5. General Provisions.
5.1 Additional Provisions.
Sections 14.4, 14.5, 14.6, 14.7, 14.8, 14.9, 14.10, 14.12 and 14.13 of the Commercial Agreement will apply to this Agreement as if set forth fully herein.
5.2 Effectiveness.
This Agreement will become effective as of the Termination Effective Date.
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Microsoft Corporation
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Barnes and Noble, Inc.
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Signature:
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Signature:
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/s/ Michael P. Huseby | |
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Printed Name:
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Printed Name:
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Michael P. Huseby | |
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Title:
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Title:
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Chief Executive Officer | |
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Date Signed:
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Date Signed:
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December 3, 2014 | |
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Barnesandnoble.com llc
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Nook Media LLC
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Signature:
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/s/ Michael P. Huseby |
Signature:
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/s/ Michael P. Huseby |
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Printed Name:
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Michael P. Huseby |
Printed Name:
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Michael P. Huseby |
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Title:
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Chief Executive Officer |
Title:
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Chief Executive Officer |
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Date Signed:
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December 3, 2014 |
Date Signed:
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December 3, 2014 |
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Microsoft Licensing GP
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Signature:
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Printed Name:
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Title:
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Date Signed:
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[Signature Page to the Commercial Agreement Termination Agreement]
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Microsoft Corporation
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Barnes and Noble, Inc.
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Signature:
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/s/ Amy E. Hood |
Signature:
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Printed Name:
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Amy E. Hood |
Printed Name:
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Title:
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Chief Financial Officer |
Title:
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Date Signed:
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Date Signed:
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Barnesandnoble.com llc
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Nook Media LLC
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Signature:
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Signature:
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Printed Name:
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Printed Name:
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Title:
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Title:
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Date Signed:
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Date Signed:
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Microsoft Licensing GP
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Signature:
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Printed Name:
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Title:
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Date Signed:
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Microsoft Corporation
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Barnes and Noble, Inc.
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Signature:
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Signature:
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Printed Name:
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Printed Name:
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Title:
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Title:
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Date Signed:
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Date Signed:
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Barnesandnoble.com llc
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Nook Media LLC
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Signature:
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Signature:
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Printed Name:
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Printed Name:
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Title:
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Title:
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Date Signed:
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Date Signed:
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Microsoft Licensing GP
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Signature:
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Stephen Harlan | ||
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Printed Name:
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Stephen Harlan | ||
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Title:
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Duly Authorized on behalf of Microsoft Licensing, GP | ||
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Date Signed:
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December 2, 2014 | ||
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