NOTICE OF PENDENCY AND SETTLEMENT OF DERIVATIVE ACTIONS AND OF SETTLEMENT HEARING TO ALL HOLDERS OF BARNES & NOBLE, INC. STOCK ON SEPTEMBER 11, 2007 This Notice is being sent to let you know of the proposed settlement of derivative actions brought by several stockholders on behalf of Barnes & Noble, Inc. (the Settlement ). As explained below, the Court will hold a hearing on November 14, 2007 to determine whether to approve the Settlement. You have an opportunity to be heard at this hearing. PLEASE READ THIS NOTICE CAREFULLY. IT MAY AFFECT YOUR LEGAL RIGHTS. I. BACKGROUND WHAT IS THIS SETTLEMENT ABOUT? In July and August 2006, four stockholder derivative actions were filed in New York County Supreme Court on behalf of Barnes & Noble, Inc. ( Barnes & Noble or the Company ) against certain of its current or former officers and directors. These actions were subsequently consolidated under the caption In re Barnes & Noble, Inc. Derivative Litigation (the State Derivative Action ). The State Derivative Action names as defendants Leonard Riggio, Stephen Riggio, Matthew A. Berdon, Irene R. Miller, Margaret T. Monaco, William Sheluck, Jr., Michael J. Del Guidice, Lawrence S. Zilavy, Mitchell S. Klipper, Marie J. Toulantis, J. Alan Kahn, David S. Deason, Thomas A. Tolworthy, Maureen E. O Connell, David K. Cully, Michael G. Archbold, Maureen Golden, Mark Bottini, William F. Duffy, Michelle Smith, Mary Ellen Keating, Joseph J. Lombardi, Christopher Grady-Troia, and Gary King. In the State Derivative Action, the plaintiffs allege that from 1997 to 2002, the defendants engaged in and/or benefited from the improper backdating of stock options and, as a result, disseminated materially false financial statements and proxy statements to the stockholders of the Company. The consolidated complaint asserts claims for breach of fiduciary duty or the aiding and abetting thereof, and for unjust enrichment. In July 2006, after the first stockholder derivative action was filed, the Company announced that a committee of the Board was investigating the Company s historical stock option granting practices. The Special Committee authorized to investigate retained independent legal counsel and forensic accountants to assist it in its investigation. In September 2006, three putative stockholder derivative actions were filed in the United States District Court for the Southern District of New York on behalf of Barnes & Noble against the directors of the Company and certain current and former officers. These actions were subsequently consolidated under the caption In re Barnes & Noble, Inc. Shareholders Derivative Litigation (the Federal Derivative Action ). 1 The Federal Derivative Action names as defendants Leonard Riggio, Stephen Riggio, Matthew A. Berdon, Michael J. Del Guidice, William T. Dillard, Irene R. Miller, Margaret T. Monaco, Michael N. Rosen, William Sheluck, Jr., William F. Reilly, Mitchell S. Klipper, Marie J. Toulantis, J. Alan Kahn, William F. Duffy, Joseph J. Lombardi, Christopher Grady-Troia, Mary Ellen Keating, David S. Deason, Michelle Smith, Lawrence S. Zilavy, David K. Cully, Thomas A. Tolworthy, Patricia L. Higgins, Mark Bottini, and Maureen E. O Connell. 2 In the Federal Derivative Action, plaintiff alleges that from 1997 to 2005, the defendants engaged in and/or benefited from the improper backdating of stock options, and, as a result, disseminated materially false financial statements and proxy statements to the stockholders of the Company. The consolidated complaint asserts claims for breach of fiduciary duty or the aiding and abetting thereof, insider selling, corporate waste, unjust enrichment, and violation of Section 14(a) of the Securities Exchange Act of 1934. On February 5, 2007, Defendants filed a motion to dismiss the State Derivative Action, which was fully briefed, and argument was heard on May 4, 2007. On June 8, 2007, Defendants filed a motion to dismiss the Federal Derivative Action, which was also fully briefed. 1 The State Derivative Action and the Federal Derivative Action are referred to collectively herein as the Derivative Actions. 2 All named defendants in both the State Derivative Action and the Federal Derivative Action (other than Patricia Higgins, against whom plaintiff s counsel agreed to dismiss all claims) are referred to herein as the Individual Defendants. The Individual Defendants and nominal defendant Barnes & Noble are collectively referred to herein as Defendants.
On April 4, 2007, Barnes & Noble announced in a Form 8-K filed with the Securities & Exchange Commission the findings and recommendations of the Special Committee, as well as the steps that the Company and its board and officers would take in response thereto. A copy of the Form 8-K is attached as Exhibit A. After April 4, 2007, counsel for plaintiffs in the State Derivative Action met and conferred with Defendants counsel on multiple occasions, both in person and telephonically, to discuss additional therapeutic remedies beyond those recommended by the Special Committee. On July 26, 2006, counsel for the parties to the Derivative Actions reached an agreement-in-principle (subject to the negotiation of a definitive written agreement) concerning the proposed Settlement. The parties agreement was reached after repeated meetings, both telephonic and in person, between counsel for plaintiffs and Defendants. Counsel for all parties have independently concluded that the terms of the Settlement are fair, reasonable, and adequate both to the Company and its stockholders based upon the benefits and protections offered therein. The plaintiffs and their counsel believe that the claims asserted in the consolidated complaints have merit. Nevertheless, the plaintiffs and their counsel, considering the terms of the proposed Settlement and the risks associated with the plaintiffs claims and the litigation, believe that the proposed Settlement, described below, is in the best interests of the Company and its stockholders. Counsel have evaluated information made available in the settlement negotiations, and have taken into account the risks and uncertainties of proceeding with this litigation. Those risks include the uncertainty of overcoming Defendants motions to dismiss, prevailing on the merits, proving liability and damages at trial, and prevailing on post-trial motions and likely appeals. Counsel have also taken into consideration the value of timely relief versus the delay of protracted litigation, and the substantial time and expense that will be incurred. Based upon their consideration of all of these factors, as well as the value of the relief obtained, plaintiffs and their counsel believe that the Settlement is in the best interests of the Company and its stockholders. Defendants deny any and all liability to plaintiffs and the Company. Defendants deny that any of the claims asserted in the consolidated complaints have merit and have agreed to settle the litigation to avoid the expense and burdens of further litigation. The Court has not determined the merits of plaintiffs claims or Defendants defenses. This Notice does not, and is not intended to, imply that there have been or would be any findings of a violation of law by Defendants or that recovery could be had in any amount if the litigation were not settled. II. TERMS OF THE PROPOSED SETTLEMENT The terms and conditions of the proposed Settlement are set forth in the Stipulation. The following description of the terms of the proposed Settlement are only a summary. 1. Monetary Remedies Defendants confirm that approximately $3 million worth of stock options have been repriced and that another $2 million has been voluntarily repaid to the Company by current Section 16 officers consistent with the Company s announcement dated April 4, 2007. 2. Therapeutic Remedies a. Defendants confirm that the Compensation Committee has been reconstituted with independent directors who were not members of this committee during the period of the option grant practices at issue. b. Defendants confirm that the Audit Committee has added independent directors. c. Defendants confirm that the Nominating and Corporate Governance Committee has been reconstituted to include the Chairs of the Compensation and Audit Committees as members of this Committee and has been renamed the Corporate Governance and Nominating Committee. 2
The Defendants acknowledge and agree that the pendency of the Derivative Actions was a factor underlying Barnes & Noble s decision to implement the above monetary and therapeutic remedies. In addition, the Defendants have agreed that the Barnes & Noble Board of Directors will adopt the following corporate governance and internal control measures within ninety days of the Settlement becoming effective and those measures will remain in effect for at least three years, unless modifications in applicable listing requirements, regulations or laws mandate changes: 3. Additional Therapeutic Remedies a. The Compensation Committee will be the only body authorized to approve the final terms of stock option grants (e.g., strike price, number of options, grantees). In connection with authorizing stock option grants, the Compensation Committee may consider proposals from and consult with the Company s management. The Compensation Committee shall be entitled to delegate authority necessary to oversee and implement the issuance and exercise of stock options, provided that, for purposes of clarification, such delegation not include the authority to establish or approve option grants to Section 16 officers. b. The Compensation Committee s final determinations regarding stock options will be made only at duly-convened Compensation Committee meetings (in person or telephonic) and contemporaneous minutes will be prepared within 5 business days of the meeting or as soon thereafter as reasonably practicable. c. The Compensation Committee shall, at least once per calendar year, preset a schedule of dates on which stock options will be granted to new employees ( Hiring Grants ) or to groups of twenty (20) or more employees ( Mass Grants ). The pre-scheduled dates for Hiring Grants shall be a date or dates certain in every month, such that hiring grants will be granted on the next-occurring pre-scheduled date following the date of hire. The pre-scheduled dates for Mass Grants shall be preset in the discretion of the Compensation Committee, and can be set, for example, at or around the occurrence of an event such as annual salary increases. Notwithstanding the foregoing, the Compensation Committee may approve nonscheduled grant dates for a Hiring Grant or a Mass Grant if the Compensation Committee has reason to believe that, as of the preset date of the grant, the Company s stock option plan will have insufficient outstanding shares available for the grant in question. d. The Compensation Committee will set the exercise price of all stock options at 100% of the market value of the stock (i.e., the closing price) on the day of the grant, and grants shall vest ratably over a period no shorter than two years, subject to any shorter vesting periods that may apply in the case of a change of corporate control, under any employment agreements, upon the termination of an employee s employment, pursuant to the Company s by-laws, or in other circumstances so determined by the Compensation Committee. e. Any list of grantees approved by the Compensation Committee will be complete and final on the date of the grant. Once a list of grantees (by name, position or title) has been approved by the Compensation Committee, no changes, amendments, or modifications to the list may be made until the Compensation Committee approves such changes, amendments, or modifications at a subsequent Compensation Committee meeting. f. The Board or Compensation Committee will designate one or more specific officer(s) within the Company who will be responsible for ensuring that (i) all SEC forms 4 and 5 are filed accurately and timely, (ii) the Company s stock option plans are followed, and (iii) all pre-scheduled grant dates are adhered to. g. At least once each year, the Audit Committee will review the adequacy of internal controls with regard to stock options. If any material weakness is found, the Company will take such action and make such disclosures as required by applicable listing requirements, regulations and laws. h. On a going forward basis, the Company will retain documents evidencing approval of stock option grants for a minimum of three (3) years following expiration of the options. 3
Releases i. The Company shall disclose its executive compensation policies annually and the Compensation Committee will periodically (every 3-5 years) retain an independent compensation consultant to review and evaluate senior executive compensation, conduct any appropriate market assessments and report to the Committee. j. The Audit Committee will meet once a year with both internal and outside auditors to discuss the methods of accounting for stock-based compensation. k. At least one member of the Audit Committee shall not be a member of the Compensation Committee. Where practicable, at least two members of the Audit Committee shall not be members of the Compensation Committee. l. The Company will amend its Code of Business Conduct ( Code ) as follows: 1. The Code will apply to all Company directors, as well as officers and employees; and 2. The Code will specify the types of disciplinary action to which violators may be subject. m. The Board will designate a Company officer who will be responsible for overseeing compliance with the Insider Trading provisions (section 3) of the Code. n. The Audit Committee will designate a Company officer who will be responsible for overseeing compliance with the Record-Keeping provisions (section 9) of the Code. This officer may be the same officer designated pursuant to sub-paragraph (f) above. o. The Audit Committee will oversee compliance with the Company s Code of Ethics for Senior Financial Officers. If the Settlement is approved by the Court, then upon the effective date of the Settlement, the plaintiffs, on behalf of Barnes & Noble and all other stockholders of Barnes & Noble during the time of the events alleged in the complaints, shall be deemed to have and shall have, fully, finally, and forever released all Released Claims against the Released Parties. As used herein, Released Claims means any statutory or common law claims, rights, demands, suits, matters, issues or causes of action under federal, state, local, foreign law, or any other law, rule or regulation, whether known or unknown, that were, could have been, or might have been asserted against the Released Parties by plaintiffs or any other holder of Barnes & Noble securities, derivatively on behalf of Barnes & Noble or any of Barnes & Noble s Related Persons, in any court of competent jurisdiction or any other adjudicatory tribunal, in connection with, arising out of, related to, based upon, in whole or in part, directly or indirectly, in any way, the facts, transactions, events, occurrences, acts, disclosures, oral or written statements, representations, filings, publications, disseminations, press releases, presentations, accounting practices or procedures, compensation practices or procedures, omissions or failures to act which were or which could have been alleged in these Derivative Actions. As used herein, Released Parties means Barnes & Noble and all persons who are or were, at any time, named as defendants in any of the Derivative Actions, as well as their present and former parent entities, subsidiaries (direct or indirect) and affiliates, and each of their respective present and former shareholders, general partners, limited partners, affiliates, divisions, joint ventures, partnerships, officers, directors, employees, agents, representatives, attorneys, insurers, excess insurers, experts, advisors, investment advisors, underwriters, fiduciaries, trustees, auditors, accountants, representatives, spouses and immediate family members, and the predecessors, heirs, legatees, successors, assigns, agents, executors, devisees, personal representatives, attorneys, advisors and administrators of any of them, and the predecessors, successors, and assigns of each of the foregoing, and any other Person in which any such Person has or had a controlling interest or which is or was related to or affiliated with such Person, and any trust of which such Person is the settler or which is for the benefit of such Person or member(s) of his or her family. 4
Upon the effective date of the Settlement, Defendants shall be deemed to have, and shall have, fully, finally, and forever released the plaintiffs and their counsel from all claims (including Unknown Claims) relating to their bringing and prosecuting the Derivative Actions. After any final Court approval of the Settlement, plaintiffs counsel shall apply to the Court for an award of attorneys fees (the Fee Application ) not to exceed $2.75 million and to be paid by Barnes & Noble or its insurers. Pursuant to the terms of the Settlement, Defendants have agreed not to object to this application. III. SETTLEMENT HEARING AND YOUR RIGHT TO OBJECT The Honorable Richard B. Lowe III of the New York Supreme Court, will hold a hearing (the Settlement Hearing ) on November 14, at 9:30 a.m. at the courthouse of the Supreme Court of New York, New York County, 60 Centre Street, New York, New York 10007, to consider whether to grant final approval to the proposed Settlement. You have a right to appear in person or through counsel at the Settlement Hearing to object to the terms of the proposed Settlement or otherwise present evidence or argument that may be proper and relevant. However, you shall not be heard, and no papers, briefs or other documents by you shall be received and considered by the Court (unless the Court in its discretion shall thereafter otherwise direct, upon application of such person and for good cause shown), unless not later than November 5, 2007, you file with the Court: (a) a written notice of intention to appear; (b) competent evidence that you held shares of Barnes & Noble common stock as of September 11, 2007, and that you continue to hold shares of Barnes & Noble common stock as of the date of the Settlement Hearing; and (c) a statement of your objections to any matters before the Court, the grounds therefor or the reasons for your desiring to appear and be heard, as well as all documents or writings you desire the Court to consider. In addition, on or before the date of such filing, you must also serve the same documents via first class mail or overnight delivery upon all of the following counsel of record: Lead Counsel for Plaintiffs in the State Derivative Action: Michael J. Hynes Schiffrin Barroway Topaz & Kessler, LLP 280 King of Prussia Road Radnor, PA 19087 Lead Counsel for Plaintiff in the Federal Derivative Action: William B. Federman Federman & Sherwood 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Liaison Counsel for Plaintiffs in the State Derivative Action: William Ban Barrack, Rodos & Bacine 1350 Broadway, Suite 1001 New York, NY 10018 Attorney for Nominal Defendant Barnes & Noble, Inc. and the Individual Defendants: Jeffrey A. Conciatori Stephen R. Neuwirth Quinn Emanuel Urquhart Oliver & Hedges, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 5
You must also contemporaneously deliver a copy of all documents described above to the Clerk of Court, New York Supreme Court, 60 Centre Street, New York, New York 10007; and even if you do not appear at the Settlement Hearing, the Court will consider your written submission. Unless the Court otherwise directs, you shall not be entitled to object to the approval of the Settlement, to any Order and Final Judgment entered thereon, to the Fee Application, or to otherwise be heard, except by serving and filing a written objection and supporting papers and documents as prescribed above. If you fail to object in the manner and within the time prescribed above you shall be deemed to have waived your right to object (including the right to appeal) and shall forever be barred, in this proceeding or in any other proceeding, from raising such objection(s). IV. FURTHER INFORMATION For more details about the matters involved in this litigation, you may inspect the case files of the New York Supreme Court for In re Barnes & Noble, Inc. Derivative Litigation, Case No. 602389/2006, at the Courthouse located at 60 Centre Street, New York, New York 10007, and of the United States District Court for the Southern District of New York for In re Barnes & Noble, Inc. Shareholders Derivative Litigation, Case No. 06-CV-6692, at the Courthouse located at 500 Pearl Street, New York, New York 10007 during regular business hours. Any other inquiries regarding the Derivative Actions should be addressed in the first instance as follows: Michael J. Hynes SCHIFFRIN BARROWAY TOPAZ & KESSLER, LLP 280 King of Prussia Road Radnor, PA 19087 (610) 667-7706 PLEASE DO NOT CALL OR DIRECT ANY INQUIRIES TO THE COURT V. NOTICE TO BANKS, BROKERS, AND OTHER NOMINEES Banks, brokerage firms, institutions, and other persons who are nominees who, on September 11, 2007, held common stock of Barnes & Noble for the beneficial interest of other persons are requested within ten (10) days of receipt of this Notice, to: (a) provide the Notice Administrator (at the address set forth below) with the names and addresses of such beneficial holders, or (b) forward a copy of this Notice to each such beneficial holder and provide the Notice Administrator with written confirmation that the Notice has been so forwarded. Additional copies of the Notice may be obtained from the Notice Administrator for forwarding to such beneficial owners. All such correspondence should be addressed as follows: Barnes & Noble Derivative Litigation c/o The Garden City Group, Inc. P.O. Box 9194 Dublin, OH 43017-4194 DATED: September 19, 2007 BY ORDER OF THE COURT 6