exhibit104-separationagr






-1-     Exhibit 10.4  SEPARATION AND GENERAL RELEASE AGREEMENT   This Separation and General Release Agreement (the “Agreement”) is entered into between  John Hartmann (the “Employee”) and Bed Bath & Beyond Inc. (the “Employer”).   1. Separation of Employment. Employee acknowledges that Employee’s last day of  employment with Employer will be August 31, 2022, which date may be extended by mutual  consent of Employer and Employee (the “Separation Date”).   2. Consideration.   a. Provided Employee executes and does not revoke this Agreement and continues  to comply with all applicable restrictive covenants, Employer will provide the  following consideration to Employee:   Employer will pay Employee severance payments totaling $3,375,000,  comprised of one and one-half (1.5) times the sum of the Employee’s annual salary  ($1,000,000)) and full target annual bonus for fiscal year 2022 ($1,250,000), less  all required withholdings and deductions (together, “Severance Payments”),  payable in substantially equal installments over the eighteen (18) months following  the Separation Date in accordance with the Company’s regular payroll payment  schedule; provided, that no installment or portion of the Severance Payment shall  be payable or paid prior to  the first regular payroll date following the sixtieth (60th)  day after the Separation Date, subject to any delay required pursuant to  Section 409A of the Internal Revenue Code of 1986, as amended (“Severance  Period”). The Severance Payments shall be reported on an IRS Form W-2.    i. The unvested portion (170,664 shares) of Employee’s Make-Whole  RSU Award (as defined in the Employment Agreement, dated as of  April 1, 2020, between Employee and Employer (the “Employment  Agreement” and granted on May 10, 2020) will vest in full as of the  Separation Date.   ii. If Employee timely elects continued health coverage pursuant to the  Consolidated Omnibus Budget Reconciliation Act (“COBRA”),  Employee will only be responsible for paying a portion of the  COBRA premium that is equal to Employee’s contribution rate for  Employee’s applicable Medical, Dental, and Vision coverage for up  to first seventy-eight (78) weeks of COBRA following the  Separation Date. If Employee elects COBRA and does not pay the  applicable COBRA premium within the time frame stipulated under  COBRA, Employee’s coverage will be cancelled, and all costs  incurred will be the responsibility of the Employee. Following the  aforementioned 78-week period, any continued health coverage  pursuant to COBRA shall solely be at Employee’s cost.   





 






-2-     iii. In addition, and pursuant to the Restricted Stock Unit Agreements  between Employee and Employer dated June 8, 2020, May 10, 2021  and May 10, 2022, if at the Separation Date you have outstanding  Restricted Stock Units (as defined therein) (excluding the  Make-Whole RSU Award) granted to you by the Company which  were not then vested by reason of the installment terms thereof, the  Company shall take such steps as may be necessary or appropriate  to vest 178,551, 4,574 and 7,290, respectively, of Restricted Stock  Units on the originally applicable Vesting Dates (as defined therein),  subject to the terms and conditions applicable thereto. Pursuant to  the Performance Stock Unit Agreements between Employee and  Employer dated June 8, 2020 and May 10, 2021 and May 10, 2022,  if at the Separation Date you have outstanding Performance Stock  Units (as defined therein) granted to you by the Company, the  Company shall take such steps as may be necessary or appropriate  to vest up to 76,522, 34,304 and 10,934, respectively, of  Performance Stock Units following the end of the applicable  Performance Period (as defined therein), subject to the terms and  conditions applicable thereto, including achievement of the  performance-based vesting criteria applicable thereto. The vesting  and settlement of such Restricted Stock Units and Performance  Stock Units shall be dependent on your compliance with the  restrictive covenants contained in your existing agreements with the  Company.   iv. Following the Separation Date, Employer will provide at no charge  to Employee a six-month virtual outplacement service program to  provide assistance with resume creation, job searches, interview  preparation and certain related activities.  v. Although Employer does not guarantee to Employee any particular  tax treatment relating to the payments and benefits paid in  accordance with the terms and conditions of this Agreement, it is the  intent of the parties that payments and benefits under this Agreement  are exempt from, or comply with, Section 409A. For purposes of  Section 409A, all payments to be made upon a termination of  employment under this Agreement may only be made upon a  “separation from service” under Section 409A, each payment shall  be treated as a separate payment and the right to a series of  installment payments under this Agreement shall be treated as a right  to a series of separate payments. In no event shall Employee, directly  or indirectly, designate the calendar year of payment of any  severance benefits. All reimbursements and in-kind benefits  provided under this Agreement shall be made or provided in  accordance with the requirements of Section 409A. If Employee is  





 






-3-     a “specified employee” within the meaning of Treasury Regulation  Section 1.409A-1(i) as of the Separation Date, Employee shall not  be entitled to any payment or benefit pursuant to the Employment  Agreement that constitutes nonqualified deferred compensation for  purposes of Section 409A (after giving effect to all exceptions to  such character applicable under Section 409A, including the  exemption for short-term deferrals) and that is payable upon a  separation from service (within the meaning of Section 409A) until  the earlier of (A) the date which is six (6) months after her separation  from service for any reason other than death, or (B) the date of  Employee’s death. Any amounts otherwise payable to Employee  upon or in the six (6) month period following Employee’s separation  from service that are not so paid by reason of such required delay  shall be paid (without interest) as soon as practicable (and in any  event within thirty (30) calendar days) after the date that is six (6)  months after Employee’s separation from service (provided that in  the event of Employee’s death after such separation from service but  prior to payment, then such payment shall be made as soon as  practicable, and in all events within thirty (30) calendar days, after  the date of Employee’s death).   vi. Employee is eligible at any time to reapply for employment with the  Company for roles for which Employee is qualified. Employee  agrees, however, that if the Employee is rehired (1) before the  Effective Date, this Agreement is null and void and the Employee is  not entitled to the consideration set forth in this Agreement; (2) after  the Effective Date but before the Severance Period has commenced,  then at the sole discretion of the Company, Employee will not  receive compensation and benefits under this Agreement, this  Agreement will otherwise remain in effect, and Employer shall have  no obligation to make Severance Payments; or (3) during the  Severance Period, then at the sole discretion of the Company,  Employer will cease making any Severance Payments, this  Agreement will otherwise remain in effect, and Employer shall have  no obligation to make further Severance Payments.   b. Employee acknowledges that Employee is not otherwise entitled to receive all  the benefit(s) specified above, which represent an enhancement to separation  benefits to which Employee would otherwise be entitled, absent Employee’s  execution of this Agreement and the fulfillment of the promises contained herein,  and acknowledges that nothing in this Agreement shall be deemed to be an  admission of liability or wrongdoing on the part of Employer or its affiliates,  parent and subsidiaries, their past and present respective officers, directors,  members, employees, attorneys, and agents, as well as any predecessors, any  future successors or assigns or estates of any of the foregoing (collectively, the  





 






-4-     “Company”). Employee agrees that Employee is not entitled to seek anything  further from Company.   c. Employer will also provide Employee all Accrued Obligations (as defined in the  Employment Agreement), regardless of whether Employee executes and does  not revoke this Agreement.  3. General Release.   a. For and in consideration of the consideration set forth above in Paragraph 2 and  other good and valuable consideration, Employee, on behalf of Employee and  Employee’s heirs, beneficiaries, personal representatives, executors,  administrators, successors and assigns (collectively, “Releasors”) hereby  knowingly and voluntarily releases, waives, discharges and gives up any and all  Claims (as defined below) which Employee may have against Company, arising  on or prior to the date hereof, including those of which Employee is not aware  and those not mentioned in this Agreement up to the Effective Date. “Claims”  means any and all actions, controversies, demands, causes of action, suits, rights,  and/or claims whatsoever for debts, sums of money, wages, salary, severance  pay, vacation pay, sick pay, fees and costs, attorneys’ fees, losses, penalties,  damages, including damages for pain and suffering and emotional harm, arising,  directly or indirectly, out of Employee’s employment with the Employer, the  terms and conditions of such employment, the termination of such employment  and/or any of the events relating directly or indirectly to or surrounding the  termination of that employment, including, but not limited to, Claims arising  directly, or indirectly, from any promise, agreement, offer letter, contract,  understanding, common law, tort, the laws, statutes, and/or regulations of the  State of New Jersey, or any other state, and the United States, including, but not  limited to, federal, state and local wage and hour laws, federal, state and local  whistleblower laws, federal, state and local fair employment laws, federal, state  and local anti-discrimination laws, federal, state and local labor laws, Section  1981 of the Civil Rights Act of 1866, Title VII of the Civil Rights Act of 1964,  the Civil Rights Act of 1991, the Equal Pay Act, the Americans with Disabilities  Act, the Employment Retirement Income Security Act of 1974 (“ERISA”), the  Vietnam Era Veterans Readjustment Assistance Act, the Fair Credit Reporting  Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act  (“ADEA”), as amended by the Older Workers Benefit Protection Act, the  Worker Adjustment and Retraining Notification Act of 1988, the Occupational  Safety and Health Act, the Sarbanes-Oxley Act of 2002, the Family and Medical  Leave Act, the Genetic Information Nondiscrimination Act of 2008, the New  Jersey Law Against Discrimination, the New Jersey Family Leave Act, the New  Jersey Civil Rights Act, the New Jersey Wage Payment Law, the New Jersey  Conscientious Employee Protection Act, the New Jersey Millville Dallas  Airmotive Plant Loss Job Notification Act, the New Jersey Paid Sick Leave Act,  the New Jersey Equal Pay Act, and the New Jersey Workers’ Compensation  





 






-5-     Anti-Retaliation Law, the New York State Human Rights Law, New York  Executive Law §§ 290 et. Seq., New York Civil Rights Law, New York Labor  Law, New York Employers’ Liability Law, New York Workers’ Compensation  Law, New York City Human Rights Law, the New York State WARN Act; the  New York City Earned Sick Time Act, as each has been or may be amended  from time to time, and Claims premised on any other legal theory, whether  arising directly or indirectly from any act or omission, whether intentional or  unintentional.  Employee acknowledges that he/she is releasing claims based on  age, race, color, sex, sexual orientation or preference, marital status, religion,  national origin, citizenship, veteran status, disability and other legally protected  categories. Employee expressly acknowledges and agrees that Employee has not  asserted and does not have, the basis for asserting any claim, the factual  foundation of which involves sexual harassment or sexual abuse, against the  Company, and as such no portion of the consideration paid to Employee as part  of this Agreement is attributable to any such claims; thus, Employee  acknowledges and agrees that this Agreement does not constitute the settlement  of a sexual harassment or sexual abuse claim.   b. Notwithstanding the provisions set forth in Paragraphs 3(a) (General  Release), 5(c) (Covenant Not to Sue), 7 (Non-Disparagement) and  9 (Confidentiality), Employee is not waiving any rights he/she may have to  (1) exercise Employee’s rights under Section 601-608 of ERISA as amended,  popularly known as COBRA; (2) exercise Employee’s rights, if any, for  accrued vested benefits under any employee benefit plan, such as the  Employer’s 401(k) plan, in accordance with the terms and conditions of  such plan(s) and applicable law; (3) benefits and/or the right to seek benefits  under applicable workers’ compensation and/or unemployment  compensation statutes; (4) any rights Employee may have to any bounty  that may be recoverable as a result of participating in the Securities and  Exchange Commission Whistleblower Program; (5) pursue claims which by  law cannot be waived by signing this Agreement; (6) enforce this  Agreement; and/or (7) challenge the validity of this Agreement.   c. Notwithstanding the provisions set forth in Paragraphs 3(a) (General  Release), 5(c) (Covenant Not to Sue), 7 (Non-Disparagement) and  9 (Confidentiality), nothing in this Agreement shall preclude Employee  from: disclosing any allegations relating to a claim under the New Jersey  Law Against Discrimination; and/or filing a charge or participating in any  manner in an investigation, hearing or proceeding before any federal, state,  or local government agency (e.g., EEOC, NLRB, SEC, etc.) or assisting or  having assisted others in doing so, nor does anything in this Agreement  preclude, prohibit or otherwise limit in any way, Employee’s rights and  abilities to contact, communicate with, report matters to or otherwise  participate in any whistleblower program administered by any such  agencies, but Employee hereby waives, to the extent permitted by law, any  and all rights to recover under, or by virtue of, any such investigation,  





 






-6-     hearing or proceeding, except that Employee may recover any bounty that  may be payable as a result of participating in the SEC’s Whistleblower  Program as set forth in Paragraph 3(b) above.  Employee further represents  that he/she has not filed any complaints or charges against the Company or  any of its affiliates with such agencies, or with any other federal, state or  local agency or court.  Employee further represents that he/she has reported  to the Company in writing any and all work-related injuries that he/she has  suffered or sustained during her employment with the Company or its  affiliates.    4. Receipt of Wages and Benefits. Employee understands and acknowledges that  except as otherwise specifically provided under this Agreement, Employee is entitled to no  payments or any other benefits from Company. Employee acknowledges that Employee has  received all wages for work performed, overtime compensation, bonuses, commissions, vacation  pay and all other benefits and compensation due to Employee by virtue of Employee’s  Employment with and termination of employment with the Company up through the Effective  Date.   5. Representations; Covenant Not to Sue. Employee hereby represents and warrants  to Company that (a) Employee has not filed, caused or permitted to be filed any pending  proceeding (nor has Employee lodged a complaint with any governmental or quasi-governmental  authority) against Company, nor has Employee agreed to do any of the foregoing, (b) Employee  has not assigned, transferred, sold, encumbered, pledged, hypothecated, mortgaged, distributed, or  otherwise disposed of or conveyed to any third party any right or Claim against Company which  has been released in this Agreement, and (c) Employee has not directly or indirectly assisted any  third party in filing, causing or assisting to be filed, any Claim against Company. In addition,  Employee hereby represents and warrants to Company that Employee shall not encourage or solicit  or voluntarily assist or participate in any way in the filing, reporting or prosecution by Employee  or any third party of a proceeding or Claim against Company based upon or relating to any Claim  released by Employee in this Agreement, unless expressly allowed by Paragraph 3(b) and 3(c).  If  any court has or assumes jurisdiction of any action against the Company or any of its affiliates on  behalf of Employee, Employee will request that court to withdraw from or dismiss the matter with  prejudice.    6. Who is Bound. The terms of this Agreement shall be binding upon and inure to the  benefit of the parties and their respective heirs, successors and assigns.   7. Non-Disparagement. Employee shall not, in any manner, directly or indirectly,  make any oral or written statement to any Person (as defined in the Employment Agreement) that  disparages or places any Company Group Member (as defined in the Employment Agreement) or  any of their respective officers, shareholders, members or advisors, any member of the Board (as  defined in the Employment Agreement), or any agents or others with whom the Company has  business relationships, in a false or negative light; provided, however, that Employee shall not be  required to make any untruthful statement or to violate any law, and shall not be prohibited from  enforcing his rights under the Employment Agreement or any other written agreement, plan or  arrangement of the Company Group (as defined in the Employment Agreement).  





 






-7-     8. Request for References. For employment reference information, Employee shall  direct prospective employers or others seeking employment verification information regarding  Employee to The Work Number (an automated system administered by a third party 800-367-5690  or www.theworknumber.com using Employer’s Employer Code 13452), or such other third party  as Employer may contract with in the future, which will provide Employee’s dates of employment,  last position held and, with Employee’s express authorization, salary information.   9. Confidentiality. Employee confirms and agrees that Employee shall not, directly or  indirectly, disclose to any person or entity or use for Employee’s own benefit, any confidential  information concerning the business, finances or operations of the Company; provided, however,  that Employee’s obligations under this Paragraph 9 shall not apply to information generally known  in Company’s industry through no fault of Employee or the disclosure of which is required by law.  Employee also agrees that Employee is not permitted to disclose to anyone the conditions of  Employee’s employment except where those conditions relate to claims under the New Jersey Law  Against Discrimination.  Employee agrees that if Employee is required to return any payments,  this Agreement shall continue to be binding on Employee and Company shall be entitled to enforce  the provisions of this Agreement as if the payments had not been repaid to Employer and Employer  shall have no further payment obligations under this Agreement. Notwithstanding the foregoing,  Employee has the absolute right to challenge the ADEA waiver and will not be required to return  any payments for making any such challenge. Additionally, under the Defend Trade Secrets Act  of 2016, Employee shall not be held criminally or civilly liable under any Federal or State trade  secret law for the disclosure of a trade secret that is (a) made in confidence to a Federal, State, or  local government official, either directly or indirectly, or to an attorney; and solely for the purpose  of reporting or investigating a suspected violation of law; or (b) in a complaint or other document  filed in a lawsuit or other proceeding, if such filing is made under seal. Further, an individual who  files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose  the employer’s trade secrets to the attorney and use the trade secret information in the court  proceeding if the individual: (a) files any document containing the trade secret under seal; and (b)  does not disclose the trade secret, except pursuant to court order.   10. Company Property. By executing this Agreement, Employee acknowledges that  Employee has returned to Employer all Company property in Employee’s possession, including,  but not limited to, all Company equipment, Company car, computers, smartphones, pass codes,  keys, swipe cards, documents or other materials that Employee received, prepared, or helped  prepare. Employee acknowledges that Employee has not retained any copies, duplicates,  reproductions, computer disks, or excerpts thereof of Company documents.   11. Restrictive Covenants. Employee acknowledges and agrees that all existing  covenants applicable to Employee, including but not limited to the Restrictive Covenants   contained in the Employment Agreement (as defined therein), will remain in effect for their  intended duration pursuant to the Employment Agreement without regard to entry into this  Agreement.   12. Resignation. Effective as of the Separation Date, Employee will be deemed to have  resigned, without any further action by Employee, from any and all positions (including, but not  





 






-8-     limited to, any officer and/or director positions or positions as a fiduciary of any of the employee  benefit plans of the Company) that Employee, immediately prior to such termination, (a) held  within the Company and (b) held with any other entities at the direction of, or as a result of  Executive’s affiliation with, the Company.  13. Entire Agreement and Amendment. This Agreement sets forth the entire agreement  between the parties and fully supersedes any other prior agreements or understandings between  the parties, except that the obligations contained in Sections 6, 7, 9, 10 and 11 of the Employment  Agreement shall survive and shall remain fully enforceable.   14. Construction of Agreement. In the event that one or more of the provisions  contained in this Agreement shall for any reason be held unenforceable in any respect under the  law of any state of the United States, such unenforceability shall not affect any other provision of  this Agreement, but this Agreement shall then be construed as if such unenforceable provision or  provisions had never been contained herein. If it is ever held that any restriction hereunder is too  broad to permit enforcement of such restriction to its fullest extent, such restriction shall be  enforced to the maximum extent permitted by applicable law. This Agreement and any and all  matters arising directly or indirectly therefrom shall be governed under the laws of the State of  New Jersey, without reference to choice of law rules. Employee consents to the sole jurisdiction  of the federal and state courts of New Jersey. EMPLOYER AND EMPLOYEE HEREBY  WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY  DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT.   15. Opportunity For Review.   a. Employee acknowledges that Employee has read and fully understands this  Agreement and represents that prior to signing this Agreement Employee has  been advised to, and has been given an opportunity to, consult Employee’s  independent counsel with respect to this Agreement and Employee executes this  Agreement freely and voluntarily. Employee understands that Employee has  been given forty-five (45) days from the date the Employee received this  Agreement, to review this Agreement before signing it, and that if Employee  fails to execute this Agreement and return it to Employer at attn: Chief Legal  Officer, Bed Bath & Beyond Inc., 650 Liberty Ave., Union, NJ 07083, within  forty-five (45) days of Employee’s receipt of this Agreement, then Employer  shall have no obligation to enter into this Agreement. Employee acknowledges  that any modifications, material or otherwise, made to this Agreement will not  restart or affect in any manner the original forty-five (45) day review period.  Employee and Employer understand that they are each responsible for their own  attorneys’ fees and costs.   b. For a period of seven (7) calendar days following Employee’s execution of this  Agreement, Employee will have the right to revoke it under the Older Workers  Benefit Protection Act, a federal statute which requires that releases of federal  age discrimination claims be knowing and voluntary. If Employee elects to  





 






-9-     revoke this Agreement within this seven (7)-day period, Employee must inform  the Company by delivering a written notice of revocation to attn: Chief Legal  Officer, Bed Bath & Beyond Inc., 650 Liberty Ave., Union, NJ 07083, no later  than 11:59 p.m. on the seventh calendar day after Employee signs the  Agreement. This Agreement, provided the Employee does not revoke it, shall be  effective and enforceable on the eighth (8th) day after execution and delivery to  Employer (the “Effective Date”). If Employee revokes this Agreement, it shall  not be effective or enforceable, and Employee shall not receive the benefits of  this Agreement.   [Signature Page Follows]     





 






-10-       Agreed to and accepted by, on this ___ day of September, 2022    EMPLOYEE:   /s/ John R. Hartmann  John Hartmann    Jo         Agreed to and accepted by, on this ___ day of September, 2022    EMPLOYER:   /s/ Lynda Markoe  Lynda Markoe         Chief People & Culture Officer