Bed, Bath and Beyond 2010 Annual Report Download - page 54

BED BATH & BEYOND PROXY STATEMENT
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own office location as assigned to him by the Company is relocated and the executive elects to terminate his employment, the
executive 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. The agreements were amended effective as of August 13, 2010 to provide that 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 payments
and benefits due to the executive will be reduced if the reduction would result in a greater amount payable to the executive
after taking into account the excise tax imposed by Section 4999 of the Code. The agreements also provide that upon a change in
control of the Company, the Company will fund a “rabbi trust” for each of the executives to hold an amount equal to the value
of the payments and certain benefits payable to each of the executives upon his termination of employment with the Company.
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 employment.
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 termination
(less any amounts received under the Company’s benefit plans as a result of such disability). To the extent that any payments
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 since fiscal 2009, 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:
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