Bed, Bath and Beyond 2012 Annual Report Download - page 62

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: (i) acted in bad faith or with dishonesty; (ii) willfully failed to follow
reasonable and lawful directions of the Company’s Chief Executive Officer 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 since fiscal 2009, vesting upon termination without ‘‘cause’’ will be
subject to attainment of performance goals. These agreements also provide for non-competition and non-solicitation
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.
BED BATH & BEYOND PROXY STATEMENT
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