Exhibit 10.2


 


AMENDMENT TO EMPLOYMENT AGREEMENT


 


Reference
is made to the Amended and Restated Employment Agreement between Bed Bath &
Beyond Inc. (the “Company”) and Leonard Feinstein (the “Executive”), dated as
of December 31, 2008, as amended pursuant to an extension agreement dated June 29,
2010 (the “Agreement”).  The Agreement is
now further amended as of August 13, 2010 as follows:


 


1.                                                               The date
reflected in Section 2(a) of the Agreement is hereby amended to read “June 30,
2013.”


 


2.                                                               The last
sentence of the first paragraph of Section 3 of the Agreement is hereby amended
to read as follows:


 


“If the Executive shall not have exercised this option on or before the
90th day before the Final Date, the Executive shall
be deemed to have exercised this option on such date.”


 


3.                                                               Section 8(c) of
the Agreement is hereby amended in its entirety to read as follows:


 


“(c) (i) In the event any
payment or benefit paid or payable, or received or to be received, by or on
behalf of the Executive in connection with a Change in Control, whether any
such payments or benefits are pursuant to the terms of this agreement or any
other plan, arrangement or agreement with the Company (the “Total Payments”),
will or would be subject to the excise tax imposed under Section 4999 of the
Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”) as
determined by tax counsel or a nationally recognized public accounting firm, in
either case mutually agreed upon by the Company and the Executive (the “Tax
Professionals”), then the Executive’s Total Payments shall be either (A) delivered
in full or (B) delivered as to such lesser extent, as would result in no
portion of such amounts being subject to the Excise Tax, whichever of the
foregoing results in the receipt by the Executive on an after-tax basis of the
greatest amount, notwithstanding that all of some of the amounts may be taxable
under Code Section 4999.  If a reduction
is to occur pursuant to the prior sentence, unless an alternative election is
permitted by, and does not result in taxation under, Code Section 409A and
timely elected by the Executive, the Total Payments shall be cutback to an
amount that would not give rise to any Excise Tax by reducing payments and
benefits in the following order: (1) accelerated vesting of restricted stock
awards, to the extent applicable; (2) accelerated vesting of stock options, to
the extent applicable; (3) payments under section 7(d)(ii), section 8(b)(i)(A) or
section 8(b)(i)(B) hereof, as applicable; (4) supplemental pension payments
under section 5(b) hereof;  (5) continued
life insurance under section 7(f) or section 8(b)(ii) hereof; and (6) continued
medical, dental and hospitalization insurance under section 7(f) or section
8(b)(ii) hereof.


 


(ii) For purposes of
determining whether any of the Total Payments will be subject to the Excise Tax
and the amount of such Excise Tax: (A) the Total Payments shall be treated as “parachute
payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess
parachute payments” within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax, unless in the opinion of the Tax
Professionals, (x) such Total Payments (in whole or in part) do not constitute
parachute payments, including (without limitation) by reason of Section 280G(b)(4)(A)
of the Code, (y) such excess parachute payments (in whole or in part) represent
reasonable compensation for services actually rendered, within the meaning of
Section 280G(b)(4)(B) of the Code, or (z) such Total Payments are not otherwise
subject to the Excise Tax; (B) the value of any non-cash benefits or any
deferred payment or benefit shall be determined by the Tax Professionals in
accordance with the principles of Sections 280G(d)(3) and (4) of the Code; and
(C) the calculation will be based on the Executive’s actual marginal rates of
federal, state and local income taxation. 
All determinations described in this section 8(c) shall be made by the
Tax Professionals which shall provide detailed supporting statements to both
the Company and the Executive.”


 


4.                                                               A new Section 8(d)
shall be added to the Agreement to read as follows:


 


1

















 


“(d) Upon a Change in
Control as described in section 8(b), the Company shall deposit into an
irrevocable grantor “rabbi” trust (which shall be substantially in the form of
the model rabbi trust under Revenue Procedure 92-64) (the “Rabbi Trust”) a cash
payment equal to (i) the actuarial equivalent value of the supplemental pension
payments contemplated under section 5(b) hereof (calculated based on the
applicable mortality table and applicable interest rate described under Code
Section 417(e)(3)), (ii) the greatest of the total amount that may become
payable under section 7(d)(ii), section 8(b)(i)(A) or section 8(b)(i)(B) hereof,
as applicable, based on the Executive’s status at the time of the Change in
Control, and (iii) the present value of the anticipated cost of providing
continued medical, dental, hospitalization and life insurance coverage for the
Executive and his family as contemplated under section 7(f) and section
8(b)(ii) hereof as determined in good faith by the Tax Professionals or an
actuary selected by the Tax Professionals using actuarial factors that are
reasonable and customary for such purposes. 
Notwithstanding the foregoing, upon the Executive’s actual termination
on or after a Change in Control, the Company shall deposit into the Rabbi Trust
any such additional amount as may be necessary to satisfy all obligations under
section 5(b) hereof and either section 7 or section 8 hereof, as
applicable.  The Company shall have the
right to direct the manner in which the funds held under the Rabbi Trust shall
be invested, however, the permitted investments shall be limited to: (1) debt
obligations of the U.S. government, (2) short-term investment grade obligations
of U.S. and foreign corporations, including commercial paper, certificates of
deposit, notes, bonds, debentures, and (3) pooled, commingled or mutual funds
which invest solely in (1) or (2) above. 
The trustee of the Rabbi Trust shall be mutually agreed upon by the
Company and the Executive but, in any event, shall be a bank or other financial
institution having assets of at least $10 billion.  Notwithstanding the irrevocable status of the
Rabbi Trust, once all of the Company’s obligations due under this agreement are
satisfied, any excess amount held in the Rabbi Trust shall be returned to the
Company.”


 


5.                                                               Section 13 of
the Agreement shall be amended to include the following language at the end
thereof:


 


“Notwithstanding the foregoing sentence, in the event of a Change in
Control, the Company shall have the right, without the Executive’s consent, to
exercise its discretion to pay in a lump sum the actuarial equivalent value of the
supplemental pension payments contemplated under section 5(b) hereof (calculated
based on the applicable mortality table and applicable interest rate described
under Code Section 417(e)(3)) and/or the present value of the severance benefit
payments contemplated under section 7(d)(ii), section 8(b)(i)(A) or section
8(b)(i)(B) hereof, as applicable (calculated based on the applicable federal
rate which is applicable for the period such payments would have otherwise been
made for the month in which the Change in Control occurs) in accordance with
Treasury Regulation Section 1.409A-3(j)(4)(ix)(B).”


 


6.                                                               A new Section 22
shall be added to the Agreement to read as follows:


 


“22.                 Withholding.  Any payments made or benefits provided to the
Executive under this Agreement, including amounts paid from the Rabbi Trust,
shall be reduced by any applicable withholding taxes or other amounts required
to be withheld by law or contract.”


 


Except
as aforesaid, the Agreement shall remain in full force and effect and unchanged.


 


 


	
   

  	
  BED
  BATH & BEYOND INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven H. Temares

  
	
   

  	
   

  	
  Name:
  Steven H. Temares

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Leonard Feinstein

  
	
   

  	
   

  	
  Leonard
  Feinstein

  



 


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