Exhibit 10.2


 


AMENDED AND RESTATED EMPLOYMENT
AGREEMENT


 


Dated as of December 31,
2008


 


The parties to this agreement are Bed Bath &
Beyond Inc., a New York corporation (the “Company”), and Leonard Feinstein (the
“Executive”).


 


The Company wishes to continue to employ the
Executive and to amend and restate the existing employment agreement,
originally dated as of June 30, 1997, amended and restated as of April 3,
2002 and subsequently amended as of June 30, 2007, between the Company and
the Executive, which embodies the terms of such employment, and the Executive
and the Company wish to amend and restate such existing employment agreement
and accept such continued employment on such terms with the intent of complying
with Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”) and the applicable regulations thereunder.


 


Accordingly, the parties agree
as follows:


 


1.                                       Positions,
Duties and Responsibilities


 


(a)                                  During
the Executive’s employment under this agreement, the Executive shall be employed
as the co-chairman with Warren Eisenberg or chairman of the Company and be
responsible for the general management of the affairs of the Company.  It is the intention of the parties that the
Executive be elected to and serve as a member of the board of directors of the
Company.  The Executive, in carrying out
his duties under this agreement, shall report to the board of directors of the
Company.


 


(b)                                 Nothing
in this agreement shall preclude the Executive from (i) serving on the
boards of directors of a reasonable number of other corporations or the boards
of a reasonable number of trade associations and/or charitable organizations, (ii) engaging
in charitable activities and community affairs and (iii) managing his
personal investments and affairs, provided that such activities do not
materially interfere with the proper performance of his duties and
responsibilities under this agreement.


 


2.                                       Term
of Employment. The Executive’s employment under this agreement shall continue
until the earlier of (a) June 30, 2010 (as that date may be extended
from time to time by mutual agreement of the parties) (the “Final Date”) or (b) the
termination of his employment in accordance with this agreement.


 


3.                                       Senior
Status.  Notwithstanding anything to the
contrary in sections 1 and 2, at any time during the Executive’s employment
under this agreement and before the Final Date, the Executive may, at his
option, upon 90 days’ written notice given to the Company, elect to terminate
his positions, duties and responsibilities under section 1, and during the
period (the “Senior Status Period”) commencing 90 days after such written
notice is first given and continuing until the earlier of (a) the tenth
anniversary of the termination of his positions, duties and responsibilities
under section 1, or (b) the termination of the Executive’s employment in
accordance with this agreement, provide consulting (but not line executive)
services to the Company as an employee. 
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.


 


It is intended that, during the
Senior Status Period, the Executive shall continue to provide services to the
Company relevant to the general management of the affairs of the Company and to
have a voice as to matters that impact the general management of the affairs of
the Company.


 


It is reasonably anticipated by
the parties and intended that during the Senior Status Period, the level of
services the Executive shall perform shall be as mutually agreed by the
Executive and the Company, but shall not be less than 25% of the average level
of bona fide services performed by the Executive during the immediately
preceding 36 month period and that the commencement of the Senior Status Period
shall not be considered a “separation from service” with the Company within the
meaning of Code Section 409A and the guidance issued thereunder.  It is the intention of the parties that,
during the Senior Status Period, the Executive shall continue to be elected to
and serve as a member of the board of directors of the Company.  The Executive, in carrying out his duties
during the Senior Status Period, shall report to the Company’s chief executive
officer or, if the Executive so elects, to the board of directors of the
Company.  During the Senior Status
Period, the Executive shall, at the request from time to time of the Company’s
chief executive officer or board of directors (whoever the Executive then
reports to), make himself available to the Company, at times that are


 


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reasonably convenient for him,
to provide mutually agreeable advisory services (it being understood, however,
that such services shall not require the Executive to travel to a location more
than 25 miles from his residence from time to time).  During the Senior Status Period, the Company
shall provide the Executive an office (at a location specified by the
Executive, which need not be where the Company’s offices are located),
secretary, car and driver, all on a basis comparable to what is currently
provided to the Executive prior to the Senior Status Period.


 


4.                                       Salary.  During his employment under this agreement
and prior to the Senior Status Period, the Executive shall be entitled to an
annual salary (the “Executive Salary”), payable in accordance with the regular
payroll practices of the Company, of $800,000 as may be increased by the board
of directors of the Company.  The
Executive Salary as of the date hereof is $1,100,000.  During the Senior Status Period, the
Executive shall be entitled to an annual salary (the “Senior Status Salary”),
payable in accordance with the regular payroll practices of the Company, of the
greater of (i) $400,000 increased by the COLA Adjustment (as defined in
section 5(b) below), and (ii) fifty percent of the average of the
Executive Salary over the three year period immediately prior to the Senior
Status Period.  The Company may pay
additional compensation to the Executive, whether in the form of an increase in
Executive Salary or Senior Status Salary (as applicable), bonus or otherwise,
if and to the extent authorized by the board of directors of the Company, in
its sole discretion, from time to time, it being understood that during the
term of this agreement, the board of directors may give consideration to
increasing such compensation at various intervals or to decreasing the
Executive Salary (but not to a level below an annual salary of $800,000 without
the Executive’s written consent).


 


5.                                       Employee
Benefit Programs.


 


(a)                                  Generally.  During the Executive’s employment under this
agreement, including the Senior Status Period, the Executive shall be entitled
to participate in all employee pension and welfare benefits plans and programs
available to the Company’s senior level executives or to its employees
generally, as such plans or programs may be in effect from time to time,
including, without limitation, pension, profit sharing, savings and other
retirement plans or programs, medical, dental, hospitalization, short-term and
long-term disability and life insurance plans, accidental death and
dismemberment protection, travel accident insurance, and any other pension or
retirement plans or programs and any other employee welfare benefit plans or
programs that may be sponsored by the Company from time to time, including any
plans that supplement the above-listed types of plans or programs, whether
funded or unfunded.


 


(b)                                 Supplemental
Pension.  In addition, the Executive
shall be entitled to payments in the nature of supplemental pension payments at
the rate of $200,000 (or such higher amount resulting from the annual COLA
Adjustment described below) per year, payable in accordance with the regular
payroll practices of the Company, for the period following the termination of
his employment until the death of the survivor of the Executive and his current
spouse, such payments to begin on the first payroll date following the
Executive’s “separation from service” within the meaning of Code Section 409A
(other than in the case of a termination of the Executive’s employment by the
Company for Cause as defined in section 7(c)(i)), subject to Section 21(c).  The amount of such supplemental pension
payments shall be increased (the “COLA Adjustment”) during each year the
supplemental pension payments are payable by an amount which reflects any
increase in the cost of living on the immediately preceding June 30th over
the cost of living on June 30, 2000, using as a basis for such increase
the Consumer Price Index for all Urban Consumers (CPI-U) for New York, Northern
New Jersey-Long Island, as published by the U.S. Department of Labor (the
“Index”) or, in the event such Index is no longer published, such other index
as is determined in good faith to be comparable by the board of directors of
the Company. The COLA Adjustment shall be made each July 1st and shall
remain applicable until the next June 30th.  The Executive acknowledges that the Company’s
obligation under section 5(b) is an unfunded, unsecured promise to pay
certain amounts to the Executive, in the future. The amounts payable under this
section 5(b) shall be paid out of the Company’s general assets and shall
be subject to the risk of the Company’s creditors. In no event shall the
Executive’s rights under section 5(b) be greater than the right of any
unsecured general creditor of the Company. 
Notwithstanding the foregoing, to the extent any amounts in excess of
accrued amounts and benefits are payable under section 7(a), (b), (d) or
8(b)(i) of this agreement, amounts payable under this section 5(b) shall
be reduced by such other amounts on a payroll period basis.


 


6.                                       Reimbursement
of Business and Other Expenses.  The
Executive is authorized to incur reasonable expenses in carrying out his duties
and responsibilities under this agreement, and the Company shall promptly
reimburse him for all business expenses incurred in carrying out the business
of the Company, subject to documentation in accordance with the Company’s
policies.  In no event shall any such
reimbursement be made later than six (6) months after the applicable
expense is incurred, subject to the Executive submitting a reimbursement
request and supporting documentation at least sixty (60) days prior to the end
of such six (6) month period.


 


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7.                                       Termination
of Employment.


 


(a)                                  In
the event the Executive’s employment terminates due to his death, his estate or
his beneficiaries, as the case may be, shall be entitled to his salary for a
period of one year following his death (paid at such times as, and in
accordance with, normal payroll), any amount owing but not yet paid under
section 6 and other or additional benefits owing but not yet paid in accordance
with applicable plans and programs of the Company.


 


(b)                                 In
the event the Executive’s employment terminates due to his inability
substantially to perform his duties and responsibilities under this agreement
for a period of 180 consecutive days, he shall be entitled to receive 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) paid, subject to Section 21(c), at such times as, and in
accordance with, normal payroll, and any amount owing but not yet paid under
section 6 in accordance with section 6. 
In no event shall a termination of the Executive’s employment under this
section 7(b) occur, unless the party terminating the Executive’s
employment gives written notice to the other party in accordance with this
agreement.


 


(c)                                  (i)                                     As
used in this agreement, the term “Cause” means (A) the Executive is
convicted of a felony involving moral turpitude or (B) the Executive is
guilty of willful gross neglect or willful gross misconduct in carrying out his
duties under this agreement, resulting, in either case, in material economic
harm to the Company, unless the Executive believed in good faith that such act
or nonact was in the best interests of the Company.


 


(ii)                                  The
Company may terminate the Executive’s employment under this agreement for
Cause. A termination for Cause shall not take effect, however, unless the
provisions of this paragraph (c)(ii) are complied with.  The Executive shall be given written notice
by the board of directors of the Company of the 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
Executive shall have 10 days after the date that such written notice has been
given in which to cure such conduct, to the extent a cure is possible. If he
fails to cure such conduct, his employment shall be terminated for Cause.


 


(iii)                               In
the event the Company terminates the Executive’s employment for Cause, he shall
be entitled to his salary through the date of the termination of his
employment, any amounts owing but not yet paid under section 6 and other or
additional benefits in accordance with applicable plans or programs of the
Company.


 


(d)                                 (i)                                     As
used in this agreement, the term “Constructive Termination Without Cause” means
a termination of the Executive’s employment at his initiative following the
occurrence, without the Executive’s prior written consent, of one or more of
the events described below (except in consequence of a prior termination) which
event is not remedied by the Company within the 30 day period following the
Executive’s notice of his intent to terminate due to the condition (which
notice shall be provided no more than 90 days following the occurrence of the
event):


 


(A)    
a reduction in the Executive’s salary (other than as contemplated
pursuant to section 4 hereof) or a material reduction of any employee benefit
or perquisite enjoyed by him (other than as part of any across-the-board action
applicable to all executive officers of the Company);


 


(B)    
the failure to elect or reelect the Executive to (I) any of the
officer or director positions referred to in section 1(a) or removal of
him from any of such positions prior to the Senior Status Period, or (II) any
executive officer position during the Senior Status Period;


 


(C)    
prior to the Senior Status Period, a material diminution in the
Executive’s duties or the assignment to the Executive of duties materially
inconsistent with his duties or that materially impair the Executive’s ability
to function as the co-chairman or chairman of the Company;


 


(D)    
prior to the Senior Status Period, the relocation of the Company’s
principal office, or the Executive’s own office location as assigned to him by
the Company, to a location more than twenty-five (25) miles from Union, New
Jersey.


 


(ii)                                  In
the event the Company terminates the Executive’s employment without Cause,
other than pursuant to section 7(a) or (b), or in the event there is a
Constructive Termination Without Cause, the Executive shall be entitled to
receive his salary through the date of termination of employment, his Executive
Salary through the Final Date and thereafter his Senior Status Salary through
the tenth anniversary of the earlier of (A) the Final Date, or (B) commencement
of the Senior Status Period, paid, subject to Section 21(c), at such times
as, and in accordance with normal payroll, and any amount owing but not yet
paid under section 6 in accordance with section 6.


 


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(e)                                  Except
with regard to a voluntary termination described in section 8(b), in the event
of a termination of employment by the Executive on his own initiative other
than a termination otherwise provided for in this section 7, the Executive
shall have the same entitlements as provided in section 7(c)(iii) for a
termination for Cause, but shall be entitled to the supplemental pension
described in section 5(b).  If the
Executive, voluntarily or otherwise without interference of the Company,
reduces the level of services he performs during the Senior Status Period below
the level set forth in Section 3 such that a “separation from service”
with the Company within the meaning of Code Section 409A and the guidance
issued thereunder is deemed to occur, then his employment with the Company
shall terminate at such time, he shall have the same entitlements as provided
in section 7(c)(iii) for a termination for Cause, but shall be entitled to
the supplemental pension described in section 5(b).


 


(f)                                    (i) 
In the event of a termination of employment other than pursuant to section
7(c), the Executive (and his current spouse, to the extent applicable) shall be
entitled to continue to participate at the Company’s expense in medical,
dental, hospitalization and life insurance coverage and in all other employee
plans and programs in which he or his family was participating on the date of
termination of his employment and other or additional benefits in accordance
with applicable plans and programs of the Company until the earlier of (A) the
death of the survivor of the Executive and his current spouse or (B) the
date, or dates, the Executive receives equivalent coverage and benefits under
the plans and programs of a subsequent employer (such coverages and benefits to
be determined on a coverage-by-coverage, or benefit-by-benefit, basis).


 


(ii)  If the Executive is
precluded from continuing his participation in any benefit plan or program
referred to in subparagraph (i), the Company shall, during the period described
in subparagraph (i) above, provide, for the benefit of the Executive and
his current spouse, substantially similar coverage and benefits through
fully-insured replacement policies.


 


(g)                                 In
the event of any termination of employment under this section 7, the Executive
shall be under no obligation to seek other employment and there shall be no
offset against amounts due the Executive under this agreement on account of any
remuneration attributable to any subsequent employment that he may obtain,
except as specifically provided in this section 7.  Except as set forth in this agreement, the
Company’s obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
circumstances, including without limitation, set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others.


 


8.                                       Change
in Control


 


(a)                                  As
used in this agreement, the term “Change in Control” means the occurrence of
any one of the following events:


 


(i)                                     any
“person,” as such term is used in sections 3(a)(9) and 13(d) of the
Securities Exchange Act of 1934, becomes a “beneficial owner,” as such term is
used in Rule 13d-3 under that act, of 30% or more of the outstanding
common stock of the Company, excluding a person that is an affiliate (as such
term is used under that act) of the Company on the date of this agreement, or
any affiliate of any such person;


 


(ii)                                  the
majority of the board of directors of the Company consists of individuals other
than Incumbent Directors, which term means the members of the board of
directors of the Company on the date of this agreement; provided that any
person becoming a director subsequent to such date whose election or nomination
for election was supported by two-thirds of the directors who then comprised
the Incumbent Directors shall be considered an Incumbent Director;


 


(iii)                               the
Company adopts any plan of liquidation providing for the distribution of all or
substantially all its assets;


 


(iv)                              all
or substantially all the assets or business of the Company are disposed of
pursuant to a merger, consolidation or other transaction (unless the shareholders
of the Company immediately prior to such merger, consolidation or other
transaction beneficially own, directly or indirectly, in substantially the same
proportion as they own the common stock of the Company, all the common stock or
other ownership interests of the entity or entities, if any, that succeed to
the business of the Company); or


 


(v)                                 the
Company combines with another company and is the surviving corporation, but,
immediately after the combination, the shareholders of the Company immediately
prior to the combination hold, directly


 


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or indirectly, 50% or less of
the common stock or other ownership interests of the combined company (there
being excluded from the number of shares held by such shareholders, but not
from the common stock or other ownership interests of the combined company, any
shares other ownership interests received by affiliates of such other company
in exchange for stock of such other company).


 


(b)                                 Following
a Change in Control, the Executive may, at his option, upon 90 days’ written
notice given to the Company, terminate his employment under this agreement and,
in lieu of any other amounts otherwise payable to him under section 7, (i) the
Executive will be entitled to receive an amount equal to (A) the product
of (x) the Executive Salary then in effect, and (y) three (3), if the
written notice is given before the Senior Status Period, or (B) the
product of (x) one half of his Senior Status Salary, and (y) the
number of years (including fractions), if any, remaining in the Senior Status
Period, if the written notice is given during the Senior Status Period, and (ii) pursuant
to section 7(f) and in accordance with terms thereof, he shall be afforded
continued participation in all medical, dental, hospitalization and life
insurance coverage and in other employee benefit plans or programs in which he
was participating on the date of the termination of his employment.  Amounts payable under (i)(A) above shall
be paid in equal installments over a period of three (3) years at such
times and in accordance with normal payroll, and amounts payable under (i)(B) above
shall be paid in equal installments over the remainder of the Senior Status
Period at such times and in accordance with normal payroll, in each case
subject to Section 21(c).


 


(c)                                  In
the event the amount provided to the Executive under section 8(b) (the
“Payment”) is determined to constitute a “parachute payment,” as such term is
defined in section 280G(b)(2) of the Internal Revenue Code of 1986, as
amended (the “Code”), notwithstanding anything to the contrary in this
agreement, the Executive shall be entitled to receive an additional payment (a
“Gross-Up Payment”) in an amount such that after payment by the Executive of
all taxes (including any interest or penalties imposed with respect to such
taxes), including, without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and any excise tax imposed by section
4999 of the Code (and any interest and penalties imposed with respect thereto)
(collectively, “Excise Tax”) imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payment. The determination of whether the Payment constitutes a “parachute
payment” and, if so, the amount to be paid to the Executive and the time of
payment pursuant to this section 8(c) shall be made by an independent
auditor (the “Auditor”) jointly selected by the Company and the Executive and
paid by the Company. The Auditor shall be a nationally recognized United States
public accounting firm, which has not, during the two years preceding the date
of its selection, acted in any way on behalf of the Company or any affiliate of
the Company. If the Executive and the Company cannot agree on the firm to serve
as the Auditor, the Executive and Company shall each select one accounting firm
and those two firms shall jointly select the accounting firm to serve as the
Auditor.


 


Notwithstanding the foregoing,
any Gross-Up Payment required to be paid pursuant to this section 8(c) shall
be paid in a lump sum by the end of the taxable year next following the
Executive’s taxable year in which he remits the related taxes and shall not be
paid prior to the expiration of the six (6) month period following the
Executive’s separation from service with the Company.


 


9.                                       Indemnification


 


(a)                                  The
Company agrees that, if the Executive is made a party, or is threatened to be
made a party, to any action, suit or proceeding, whether civil, criminal,
administrative or investigation (a “Proceeding”), by reason of the fact that he
is or was a director, officer or employee of the Company or is or was serving
at the request of the Company as a director, officer, member, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether or not the
basis of such Proceeding is the Executive’s alleged action in an official
capacity while serving as director, officer, member, employee or agent, the
Executive shall be indemnified and held harmless by the Company to the fullest
extent permitted or authorized by the Company’s certificate of incorporation or
bylaws or, if greater, by the laws of the state of New York, against all cost,
expense, liability and loss (including, without limitation, attorneys’ fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be
paid in settlement) reasonably incurred or suffered by the Executive in
connection therewith, and such indemnification shall continue as to the
Executive even if he has ceased to be a director, member, employee or agent of
the Company or other entity and shall inure to the benefit of the Executive’s
heirs, executors and administrators.  The
Company shall advance to the Executive all reasonable costs and expenses
incurred by him in connection with a Proceeding within 20 days after receipt by
the Company of a written request for such advance.  Such request shall include an undertaking by
the Executive to repay the amount of such advance if it shall ultimately be
determined that he is not entitled to be indemnified against such costs and
expenses.


 


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(b)                                 Neither
the failure of the Company (including its board or directors, independent legal
counsel or shareholders) to have made a determination prior to the commencement
of any proceeding concerning payment of amounts claimed by the Executive under
section 9(a) that indemnification of the Executive is proper because he
has met the applicable standard of conduct, nor a determination by the Company
(including its board of directors, independent legal counsel or shareholders)
that the Executive has not met such applicable standard of conduct, shall
create a presumption that the Executive has not met the applicable standard of
conduct.


 


(c)                                  The
Company agrees to continue and maintain a director’s and officers’ liability
insurance policy covering the Executive to the extent the Company provides such
coverage for its other executive officers.


 


10.                                 Confidentiality.  The Executive shall at all times during the
period of his employment and thereafter hold in confidence any and all
Confidential Information (as defined below) that may have come or may come into
his possession or within his knowledge concerning the products, services,
processes, businesses, suppliers, customers and clients of the Company or its
controlled affiliates.  The Executive
agrees that neither he nor any person or enterprise controlled by him will for
any reason directly or indirectly, for himself or any other person, use or
disclose any trade secrets, proprietary or confidential information,
inventions, manufacturing or industrial processes or procedures, patents, trademarks,
trade names, customer lists, service marks, service names, copyrights,
applications for any of the foregoing or licenses or other rights in respect
thereof (collectively, “Confidential Information”), owned or used by, or
licensed to, the Company or any of its controlled affiliates, provided that the
Executive may disclose Confidential Information that has become generally
available to the public other than as a result of a breach of this agreement by
the Executive or pursuant to an order of a court of competent jurisdiction or
of a governmental agency, department or commission.  Upon termination of his employment under this
agreement, the Executive shall promptly surrender to the Company all documents
he believes contain Confidential Information and that are within his possession
or control, other than documents to which the Executive is or was a party or
that relate to the Executive or the basis, or purported basis, on which his
employment was terminated.


 


11.                                 Noncompetition
and Nonsolicitation.


 


(a)                                  The
Executive agrees that from the date of this agreement and subsequent to the
termination of his employment under this agreement and continuing for the
period (the “Non-Compete Period”) after termination of employment under section
7 (but not under section 8) in respect of which salary continuation payments
would be required to be made under section 7(d) (regardless of whether
termination of employment occurs pursuant to section 7 (d)), neither the
Executive nor any person or enterprise controlled by him will become a
shareholder, lender, director, officer, agent or employee of a corporation or
member of or lender to a partnership, engage as a sole proprietor in any
business, act as a consultant to any of the foregoing or otherwise engage
directly or indirectly in any business that is in competition with the business
then conducted by the Company or any of its controlled affiliates in any state
in the United States or any other country in which the Company or any of its
controlled affiliates has engaged in such business during the Executive’s
employment under this agreement; provided, however, that the foregoing shall
not prohibit the Executive from owning less than two percent of the outstanding
securities of any class of capital stock of a corporation the securities of
which are regularly traded or quoted on a national securities exchange or on an
inter-dealer quotation system or from acting as a passive investor in any
private equity or similar fund.


 


(b)                                 The
Executive agrees that, during the Non-Compete Period, neither he nor any person
or enterprise controlled by him will (i) solicit for employment any person
who was employed by the Company or any of its controlled affiliates at any time
within one year prior to the time of the act of solicitation or (ii) in
any way cause, influence or participate in the solicitation for employment of
any such individual by anyone else.


 


(c)                                  The
Executive acknowledges that there is no adequate remedy at law for a breach of
this section 11 and that, in the event of such a breach or attempted breach,
the Company shall be entitled to injunctive or other equitable relief to
prevent any such breach, attempted breach or continuing breach, without
prejudice to any other remedies for damages or otherwise.


 


12.                                 Assignability;
Binding Nature.  This agreement shall
inure to the benefit of the parties and their respective successors, heirs (in
the case of the Executive) and assigns. No rights or obligations of the Company
under this agreement may be assigned or transferred by the Company, except
pursuant to a merger or consolidation, or the sale or liquidation of all or
substantially all the assets of the Company, provided that, in the case of such
a sale or liquidation, the assignee or transferee assumes in writing the
obligation to perform this agreement (it being understood, however, that no
such assignment or transfer shall relieve the Company of its liabilities or
obligations under this agreement).


 


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13.                                 Amendment
or Waiver.  This agreement may not be
amended or waived, except by an instrument in writing signed by the party to be
charged.


 


14.                                 Severability.  If any provision of this agreement is invalid
or unenforceable, the remaining provisions of this agreement shall remain in
effect.


 


15.                                 Governing
Law.  This agreement shall be governed by
and construed and interpreted in accordance with the law of the state of New
York as applied to agreements among New York residents entered into and to be
performed entirely within New York.


 


16.                                 Disputes.  Except as otherwise expressly provided in
this agreement, any dispute arising under or in connection with this agreement
shall, at the election of the Executive, be resolved by binding arbitration to
be held in New York City in accordance with the rules of the American
Arbitration Association. Judgment upon the arbitrator’s award may be entered in
any court having jurisdiction.  Until the
later of the death of the Executive or his current spouse, costs of any such arbitration
or litigation, including, without limitation, attorneys’ fees of both parties,
shall be borne by the Company and advanced to the Executive as appropriate from
time to time, but no later than 180 days after they are incurred, provided
that, if the arbitrator or judge, as the case may be, determines that the
claims or defenses of the Executive were without any reasonable basis, each
party shall bear his or its own costs.


 


17.                                 Notices.  All notices and other communications under
this agreement shall be in writing and may be given by any of the following
methods: (a) personal delivery; (b) facsimile transmission; (c) registered
or certified mail, postage prepaid, return receipt requested; or (d) overnight
delivery service. Notices shall be sent to the appropriate party at its or his address
or facsimile number given below (or at such other address or facsimile number
for that party as specified by notice given under this section 17):


 


if to the Company, to it at:


 


650 Liberty Avenue


Union, New Jersey 07083


Fax: 908-688-8385


 


if to the Executive, to him at:


[***]


 


All such notices and
communications shall be deemed given and received upon (a) actual receipt
by the addressee, (b) actual delivery to the appropriate address or (c) in
the case of a facsimile transmission, upon transmission by the sender and
issuance by the transmitting machine of a confirmation slip confirming that the
number of pages constituting the notice have been transmitted without
error. In the case of notices sent by facsimile transmission, the sender shall
contemporaneously mail a copy of the notice to the addressee at the address
provided above; however, such mailing shall in no way alter the time at which
the facsimile notice is deemed given and received.


 


18.                                 Headings.  The section headings in this agreement are for
convenience only and shall not affect the meaning or construction of any
provision of this agreement.


 


19.                                 Counterparts.  This agreement may be executed in
counterparts.


 


20.                                 Entire
Agreement.  This agreement contains the
entire agreement and understanding of the parties concerning its subject matter
and supersedes all prior agreements and understandings with respect to that
subject matter. Nothing in this agreement is intended to or shall affect the
rights or obligations of the parties under any agreement relating to the
maintenance of life insurance or stock options.


 


21.                                 Code
Section 409A.


 


(a)                                  While
the Company does not guarantee any particular tax treatment, this agreement is
intended to comply with the applicable requirements of Section 409A of the
Code and the applicable regulations thereunder and shall be limited, construed
and interpreted in accordance with such intent.


 


(b)                                 With
regard to any provision herein that provides for reimbursement of costs and
expenses or in-kind benefits, except as permitted by Section 409A of the
Code, (i) the right to reimbursement or in-kind benefits shall not be 


 


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subject to liquidation or
exchange for another benefit, (ii) the amount of expenses eligible for
reimbursement or in-kind benefits provided during any taxable year shall not
affect the expenses eligible for reimbursement, or in-kind benefits to be
provided, in any other taxable year, provided that the foregoing clause (ii) shall
not be violated with regard to expenses reimbursed under any arrangement
covered by Section 105(b) of the Code solely because such expenses
are subject to a limit related to amounts that may be reimbursed during the
period the arrangement is in effect, and (iii) such payments shall be made
on or before the last day of the Executive’s taxable year following the taxable
year in which the expense was incurred.


 


(c)                                  A
termination of employment shall not be deemed to have occurred for purposes of
any provision of this agreement providing for the payment of any amounts or
benefits upon or following a termination of employment unless such termination
is also a “separation from service” within the meaning of Code Section 409A
and, for purposes of any such provision of this agreement, references to a
“termination,” “termination of employment” or like terms shall mean separation
from service.  Notwithstanding any
provision to the contrary in this agreement, because the Executive is deemed to
be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B),
then with regard to any payment or the providing of any benefit that
constitutes “non-qualified deferred compensation” pursuant to Code Section 409A,
to the extent required to be delayed in compliance with Code Section 409A(a)(2)(B),
such payment or benefit shall not be made or provided to the Executive, prior
to the earlier of (A) the expiration of the six (6)-month period measured
from the date of the Executive’s separation from service, and (B) the date
of the Executive’s death.  On the first
day of the seventh month following the date of the Executive’s separation from
service or, if earlier, on the date of the Executive’s death, all payments
delayed pursuant to this Section 21(c) (whether they would have
otherwise been payable in a single sum or in installments in the absence of
such delay) shall be paid or reimbursed to the Executive in a lump sum, and any
remaining payments and benefits due to the Executive under this agreement shall
be paid or provided in accordance with the normal payment dates specified for
them herein.


 


(d)                                 If
under this agreement, an amount is to be paid in two or more installments, for
purposes of Code Section 409A, each installment shall be treated as a
separate payment.


 


	
   

  	
  BED BATH & BEYOND INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Steven H. Temares

  
	
   

  	
   

  	
  Name: Steve H. Temares

  
	
   

  	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  THE EXECUTIVE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Leonard Feinstein

  
	
   

  	
   

  	
  Leonard Feinstein

  



 


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