exhibit105-separationagr






EXECUTION VERSION  -1- SEPARATION AND GENERAL RELEASE AGREEMENT  This Separation and General Release Agreement (the “Agreement”) is entered into between  Joseph Hartsig (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 June 28, 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:   i. Employer will pay Employee severance payments totaling $1,260,000, comprised of the Employee’s annual salary ($700,000) and full target annual bonus for fiscal year 2022 ($560,000), less all required withholdings and deductions (together, “Severance Payments”), payable generally in ratable installments over a twelve (12) month period following the Separation Date in accordance with the Company’s regular payroll payment schedule commencing after the Effective Date (as defined herein), 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.  For the avoidance of doubt, any such payments that are due and payable prior to the Effective Date shall be held back and paid along with the next regularly scheduled payment date after such date. ii. The unvested portion (27,819 shares) of Employee’s Make-Whole RSU Award (as defined in the Employment Agreement, dated as of March 4, 2020, between Employee and Employer (the “Employment Agreement”) and granted on March 4, 2020) will vest in full as of the Separation Date. iii. If Employee is eligible for and 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 fifty-two (52) 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 Exhibit 10.5 





 






EXECUTION VERSION  -2- cancelled, and all costs incurred will be the responsibility of the  Employee. Following the aforementioned 52-week period, any  continued health coverage pursuant to COBRA shall solely be at  Employee’s cost.   iv. 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 up to 82,409, 762 and 1,215, 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 52,977, 29,732 and 3,646, 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. v. 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. vi. 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 





 






  EXECUTION VERSION    -3-   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  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 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).   vii. 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)  rehired 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) rehired  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,  





 






  EXECUTION VERSION    -4-   as well as any predecessors, any future successors or assigns or estates of  any of the foregoing (collectively, the “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  





 






  EXECUTION VERSION    -5-   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 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 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  





 






  EXECUTION VERSION    -6-   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, 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 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 she has reported to  the Company in writing any and all work-related injuries that 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 hereby represents and warrants to Company that  Employee has not and agrees not to make, in any manner, directly or indirectly, any defamatory or  derogatory statements (written or verbal) that disparages or places the Company or any of its  





 






  EXECUTION VERSION    -7-   officers, shareholders, members or advisors, any member of the Board of Directors, 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.    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 also agrees that all terms of this Agreement, including any  payments made hereunder to or on behalf of employee, shall be kept confidential. Employee shall  not reveal the terms of this Agreement to anyone, except to Employee’s immediate family, legal  and financial advisors, if any, unless compelled to do so by judicial or administrative process. If  Employee tells anyone not authorized by this Paragraph 9 of any term of this Agreement or  breaches any other term or condition of this Agreement, it shall constitute a material breach of the  Agreement and in addition to and not instead of Company’s other remedies, including reasonable  attorneys’ fees, Employee shall be required to immediately, upon written notice from Employer,  return any payments paid by Employer hereunder, less $500. 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.   





 






EXECUTION VERSION  -8- 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. 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.   13. 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.   14. 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 the opportunity to review this Agreement for  from the date of receipt 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 





 






EXECUTION VERSION  -9- 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 revoke this Agreement within this 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. Agreed to and accepted by, on this ___ day of _______, 2022  EMPLOYEE:  Joseph Hartsig  Jo  Agreed to and accepted by, on this ___ day of _______, 2022  EMPLOYER:  /s/ Joseph G. Hartsig /s/ Lynda Markoe 





 






EXECUTION VERSION  -10- Lynda Markoe   Chief People & Culture Officer