Delaware
(State or other jurisdiction
of incorporation or organization)
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06-1196501
(I.R.S. Employer
Identification No.)
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122 Fifth Avenue
New York, NY
(Address of Principal Executive Offices)
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10011
(Zip Code)
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Large accelerated filer ý
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Accelerated filer ¨
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Non-accelerated filer (Do not check if a smaller reporting company) ¨
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Smaller reporting company ¨
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Title of Securities to be Registered
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Amount to be Registered
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Proposed Maximum Offering Price per Share (6)
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Proposed Maximum Aggregate Offering Price (6)
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Amount of Registration Fee
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Common Stock, $0.001 par value
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Outstanding Award Shares (1)(2)
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5,789,989 | n/a | n/a | n/a | ||||||||||||
Remaining Shares (3)(4)
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1,177,098 | n/a | n/a | n/a | ||||||||||||
Shares not previously registered(5) | 1,700,000 | $ |
11.545
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$ | 19,626,500 | $ | 2,249.20 | |||||||||
Total
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8,667,087 | (7) | n/a | n/a | $ | 2,249.20 |
(1)
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The Outstanding Award Shares are shares of common stock of Barnes & Noble, Inc. (the “Company”) that are subject to outstanding awards under the Company’s 2004 Incentive Plan (the “2004 Plan”) or under the Company’s 2009 Incentive Plan (the “Prior 2009 Plan” and, together with the 2004 Plan, the “Prior Plans”) as of September 11, 2012. On September 11, 2012, the Company’s stockholders approved the adoption of the Amended and Restated 2009 Incentive Plan (the “Plan”), which replaced and superseded the Prior 2009 Plan. The Prior 2009 Plan had previously replaced and superseded the 2004 Plan. Pursuant to Section 3.1 of the Plan, the Outstanding Award Shares will become available for issuance under the Plan if such awards under the Prior Plans are forfeited, expire, are otherwise terminated, are settled for cash or otherwise do not result in the issuance of all or a portion of the Outstanding Award Shares subject to such award on or after September 11, 2012. In addition, any shares of common stock of the Company that are (i) tendered in connection with the exercise of an award or (ii) withheld by the Company in payment of the exercise price of an award or any taxes required to be withheld in respect of such an award, will again become available for issuance under the Plan.
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(2)
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The Outstanding Award Shares include: shares of unvested restricted stock that were granted under the Prior Plans and shares subject to options that were granted under the Prior Plans.
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(3)
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The Remaining Shares are shares of common stock of the Company that were previously registered by the Company and available for grant under the Prior 2009 Plan but were not subject to outstanding awards on September 11, 2012 and are now available for grant under the Plan pursuant to Section 3.1 of the Plan.
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(4)
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The Outstanding Award Shares and the Remaining Shares are referred to as the “Carried Forward Shares”. The Carried Forward Shares were previously registered by the Company under a registration statement on Form S-8 filed on July 13, 2009 (File No. 333-160560) and the Company paid the required fee. Pursuant to Interpretation 89 under Section G of the Manual of Publicly Available Telephone Interpretations of the Division of Corporation Finance of the Securities and Exchange Commission (July 1997) and Instruction E to the General Instructions to Form S-8, the Company has carried forward the registration fee for the Carried Forward Shares. The Company has concurrently filed Post-Effective Amendment No. 1 to the registration statement on Form S-8 filed on July 13, 2009 (File No. 333-160560) deregistering the Carried Forward Shares under the Prior 2009 Plan.
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(5)
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Represents 1,700,000 shares of common stock not previously registered and available for issuance under the Plan.
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(6)
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Calculated solely for purposes of this offering under Rule 457(c) and (h) of the Securities Act of 1933 on the basis of the average of the high and low selling price per share of common stock of the Company on September 10, 2012, as reported by the New York Stock Exchange.
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(7)
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Pursuant to Rule 416 of the Securities Act of 1933, this registration statement shall also cover any additional shares of common stock which become issuable under the Plan pursuant to this registration statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Company’s outstanding shares of common stock.
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(a)
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Annual Report on Form 10-K for the fiscal year ended April 28, 2012;
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(b)
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Quarterly Report on Form 10-Q for the quarterly period ended July 28, 2012;
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(c)
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Current Reports on Form 8-K filed on April 30, 2012, June 15, 2012, June 22, 2012 and July 3, 2012; and
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(d)
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Description of the Company’s common stock contained in Item I of the Company’s Registration Statement on Form 8-A, filed with the Commission on September 2, 1993.
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Exhibit
Number |
Exhibit
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4.1
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Amended and Restated Certificate of Incorporation of the Company, as amended, filed as an exhibit to the Company’s Registration Statement on Form S-4 (Commission File No. 33-59778) filed with the SEC on March 22, 1993, and incorporated herein by reference.
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4.2
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Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Company, dated as of June 17, 1998, filed as Exhibit 3.2 to the Company’s Quarterly Report on Form 10-Q filed with the SEC on September 15, 1998, and incorporated herein by reference.
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4.3
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Form of Certificate of Designation, dated as of November 17, 2009, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on November 18, 2009, and incorporated herein by reference.
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4.4
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Certificate of Designation, dated as of August 18, 2011, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on August 18, 2011, and incorporated herein by reference.
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4.5
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Amended and Restated By-laws of the Company, dated as of April 14, 2008, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on April 14, 2008, and incorporated herein by reference.
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4.6
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Amendment to Amended and Restated By-laws of the Company, dated as of September 29, 2009, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on October 1, 2009, and incorporated herein by reference.
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4.7
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The Company’s Amended and Restated 2009 Incentive Plan, filed as an appendix to the Company’s Definitive Proxy Statement on Schedule 14A filed with the SEC on July 23, 2012, and incorporated herein by reference.
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4.8
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The Company’s 2009 Incentive Plan, filed as an appendix to the Company’s Definitive Proxy Statement on Schedule 14A filed with the SEC on April 16, 2009, and incorporated herein by reference.
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4.9
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The Company’s 2004 Incentive Plan, filed as Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed with the SEC on June 9, 2004, and incorporated herein by reference.
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4.10
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Amendment to the Company’s 2004 Incentive Plan, filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 21, 2006, and incorporated herein by reference.
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4.11
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Second Amendment to the Company’s 2004 Incentive Plan, filed as Exhibit 2.03 to the Company’s Current Report on Form 8-K filed with the SEC on December 19, 2008, and incorporated herein by reference.
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5.1
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Opinion of Cravath, Swaine & Moore LLP, regarding the legality of the securities being registered.
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23.1
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Consent of Cravath, Swaine & Moore LLP (included in Exhibit 5.1).
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23.2
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Consent of BDO USA, LLP.
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23.3 |
Acknowledgement Letter from BDO USA, LLP.
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24.1
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Power of Attorney (included in the signature page hereto).
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
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(2)
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That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering.
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BARNES & NOBLE, INC., | |||
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By:
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/s/Eugene V. DeFelice | |
Name: Eugene V. DeFelice | |||
Title: Vice President, General Counsel & Corporate Secretary | |||
SIGNATURE
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CAPACITY
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DATE
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/s/ Leonard Riggio |
Chairman of the Board
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September 11, 2012
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Leonard Riggio
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/s/ William J. Lynch, Jr. |
Chief Executive Officer and Director (Principal Executive Officer)
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September 11, 2012
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William J. Lynch, Jr.
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/s/ Michael P. Huseby |
Chief Financial Officer (Principal Financial Officer)
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September 11, 2012
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Michael P. Huseby
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/s/ Allen W. Lindstrom |
Vice President, Corporate Controller (Principal Accounting Officer)
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September 11, 2012
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Allen W. Lindstrom
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/s/ George Campbell, Jr. |
Director
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September 11, 2012
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George Campbell, Jr.
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/s/ Mark D. Carleton |
Director
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September 11, 2012
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Mark D. Carleton
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/s/ William Dillard, II |
Director
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September 11, 2012
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William Dillard, II
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/s/ David G. Golden |
Director
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September 11, 2012
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David G. Golden
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/s/ Patricia L. Higgins |
Director
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September 11, 2012
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Patricia L. Higgins
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/s/ Gregory B. Maffei |
Director
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September 11, 2012
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Gregory B. Maffei
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/s/ David A. Wilson |
Director
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September 11, 2012
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David A. Wilson
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Exhibit Number
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Exhibit
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4.1
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Amended and Restated Certificate of Incorporation of the Company, as amended, filed as an exhibit to the Company’s Registration Statement on Form S-4 (Commission File No. 33-59778) filed with the SEC on March 22, 1993, and incorporated herein by reference.
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4.2
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Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Company, dated as of June 17, 1998, filed as Exhibit 3.2 to the Company’s Quarterly Report on Form 10-Q filed with the SEC on September 15, 1998, and incorporated herein by reference.
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4.3
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Form of Certificate of Designation, dated as of November 17, 2009, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on November 18, 2009, and incorporated herein by reference.
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4.4
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Certificate of Designation, dated as of August 18, 2011, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on August 18, 2011, and incorporated herein by reference.
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4.5
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Amended and Restated By-laws of the Company, dated as of April 14, 2008, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on April 14, 2008, and incorporated herein by reference.
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4.6
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Amendment to Amended and Restated By-laws of the Company, dated as of September 29, 2009, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on October 1, 2009, and incorporated herein by reference.
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4.7
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The Company’s Amended and Restated 2009 Incentive Plan, filed as an appendix to the Company’s Definitive Proxy Statement on Schedule 14A filed with the SEC on July 23, 2012, and incorporated herein by reference.
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4.8
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The Company’s 2009 Incentive Plan, filed as an appendix to the Company’s Definitive Proxy Statement on Schedule 14A filed with the SEC on April 16, 2009, and incorporated herein by reference.
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4.9
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The Company’s 2004 Incentive Plan, filed as Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed with the SEC on June 9, 2004, and incorporated herein by reference.
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4.10
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Amendment to the Company’s 2004 Incentive Plan, filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 21, 2006, and incorporated herein by reference.
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4.11
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Second Amendment to the Company’s 2004 Incentive Plan, filed as Exhibit 2.03 to the Company’s Current Report on Form 8-K filed with the SEC on December 19, 2008, and incorporated herein by reference.
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5.1
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Opinion of Cravath, Swaine & Moore LLP, regarding the legality of the securities being registered.
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23.1
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Consent of Cravath, Swaine & Moore LLP (included in Exhibit 5.1).
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23.2
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Consent of BDO USA, LLP.
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23.3 |
Acknowledgement Letter from BDO USA, LLP.
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24.1
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Power of Attorney (included in the signature page hereto).
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Very truly yours, | |||
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/s/Cravath, Swaine & Moore LLP | |||
Cravath, Swaine & Moore LLP | |||
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Barnes & Noble, Inc.
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122 Fifth Avenue
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New York, NY 10019
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/s/ BDO USA, LLP
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BDO USA, LLP
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New York, New York
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