Bed, Bath and Beyond 2009 Annual Report Download - page 56

BED BATH & BEYOND PROXY STATEMENT
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office location as assigned to him by the Company is relocated and the executive elects to terminate his employment, the execu-
tive shall be paid through the end of the term of employment and the Senior Status Period. Following a change in control of
the Company (as defined in the agreements), each of the executives may, at his option, upon 90 days’ written notice, terminate
employment and shall be paid an amount equal to three times salary then in effect, if the written notice is given before the
Senior Status Period, or, if during the Senior Status Period, one half of Senior Status Salary for the number of years (including
fractions), if any, remaining in the Senior Status Period, payable over such applicable period in accordance with normal payroll
practices. In the event any amounts paid or provided to the executive in connection with a change in control are determined to
constitute “excess parachute payments” under Section 280G of the Code which would be subject to the excise tax imposed by
Section 4999 of the Code, the executive shall be entitled to receive an additional “gross-up payment” in an amount such that
after payment by the executive of all taxes the executive retains an amount of such “gross-up payment” equal to the excise tax
imposed. In the event of termination of employment, the executives are under no obligation to seek other employment and there
is no reduction in the amount payable to the executive on account of any compensation earned from any subsequent employ-
ment. In the event of termination due to death of either of the executives, the executive’s estate or beneficiary shall be entitled
to his salary for a period of one year following his death and payment of expenses incurred by executive and not yet reimbursed
at the time of death. In the event of termination due to the inability to substantially perform his duties and responsibilities for a
period of 180 consecutive days, the executive shall be entitled to his salary for a period of one year following the date of termi-
nation (less any amounts received under the Company’s benefit plans as a result of such disability). To the extent that any pay-
ments under the employment agreements due following the termination of Messrs. Eisenberg and Feinstein are considered to be
deferred compensation under Section 409A, such amounts will commence to be paid on the earlier of the six-month anniversary
of termination of employment or the executive’s death. Either of the executives may be terminated for “cause” upon written
notice of the Company’s intention to terminate his employment for cause, such notice to state in detail the particular act or acts
or failure or failures to act that constitute the grounds on which the proposed termination for cause is based. The executives shall
have ten days after such notice is given to cure such conduct, to the extent a cure is possible. “Cause” means (i) the executive is
convicted of a felony involving moral turpitude or (ii) the executive is guilty of willful gross neglect or willful gross misconduct
in carrying out his duties under the agreement, resulting, in either case, in material economic harm to the Company, unless the
executive believed in good faith that such act or non-act was in the best interests of the Company. In addition, pursuant to their
respective restricted stock agreements, shares of restricted stock granted to Messrs. Eisenberg and Feinstein will vest upon death,
disability, termination of employment without “cause” or constructive termination, and for restricted stock awards granted during
fiscal 2009 and fiscal 2010, vesting upon termination without “cause” or constructive termination will be subject to attainment
of performance goals.
In substitution for a split dollar insurance benefit previously provided to such executives, in fiscal 2003, the Company entered into
deferred compensation agreements with Messrs. Eisenberg and Feinstein under which the Company is obligated to pay Messrs.
Eisenberg and Feinstein $2,125,000 and $2,080,000, respectively, in each case payable only on the last day of the first full fiscal
year of the Company in which the total compensation of Mr. Eisenberg or Feinstein, as applicable, will not result in the loss of a
deduction for such payment pursuant to applicable federal income tax law.
Messrs. Temares, Stark and Castagna
The agreements with Messrs. Temares and Stark provide for severance pay equal to three years’ salary, and the agreement with
Mr. Castagna provides for severance pay equal to one year’s salary, if the Company terminates their employment other than for
“cause” (including by reason of death or disability) and one year’s severance pay if the executive voluntarily leaves the employ
of the Company. Severance pay will be paid in accordance with normal payroll, however any amount due prior to the six months
after termination of employment will be paid in a lump sum on the date following the six month anniversary of termination of
employment. Any severance payable to these executives will be reduced by any monetary compensation earned by them as a
result of their employment by another employer or otherwise. Cause is defined in the agreements as when the executive has:
(i)฀acted฀in฀bad฀faith฀or฀with฀dishonesty;฀(ii)฀willfully฀failed฀to฀follow฀reasonable฀and฀lawful฀directions฀of฀the฀Company’s฀Chief฀
Executive฀Ofcer฀or฀the฀Board฀of฀Directors,฀as฀applicable,฀commensurate฀with฀his฀titles฀and฀duties;฀(iii)฀performed฀his฀duties฀with฀
gross฀negligence;฀or฀(iv)฀been฀convicted฀of฀a฀felony.฀Upon฀a฀termination฀of฀employment฀by฀the฀Company฀for฀any฀reason฀other฀
than for “cause,” all unvested options will vest and become exercisable. In addition, pursuant to their respective restricted
stock agreements, shares of restricted stock granted to Messrs. Temares, Stark and Castagna will vest upon death, disability
or termination of employment without “cause,” and for restricted stock awards granted during fiscal 2009 and fiscal 2010,
vesting upon termination without “cause” will be subject to attainment of performance goals. These agreements also provide
for non-competition during the term of employment and for one year thereafter (two years in the case of Mr. Castagna), and
confidentiality during the term of employment and surviving the end of the term of employment.