exhibit101stipplandocume






                                                                   Exhibit 10.1                            BED BATH & BEYOND INC.                         SHORT-TERM INCENTIVE PLAN                                                                        Effective July 16, 2020   Section 1.  Purpose.         The  compensation  policies  of  Bed  Bath  &  Beyond  Inc.,  a  New  York  corporation  (the  “Company”), are intended to support the Company’s overall objective of enhancing shareholder  value.  In furtherance of this philosophy, the Bed Bath & Beyond Inc. Short-Term Incentive Plan  (the  “Plan”)  is  designed  to  provide  incentives  for  business  performance,  reward  contributions  towards goals consistent with the Company’s business strategy and enable the Company to attract  and retain highly qualified Corporate Officers and other Eligible Employees.   Section 2.  Definitions.         The terms used in the Plan include the feminine as well as the masculine gender and the  plural as well as the singular, as the context in which they are used requires. The following terms,  unless the context requires otherwise, are defined as follows:         “409A Covered Bonus” has the meaning set forth in Section 7(k)(ii) of the Plan.         “Affiliate”  means  each  of  the  following:  (a)  any  Subsidiary;  (b)  any  Parent;  (c)  any  corporation,  trade  or  business  (including,  without  limitation,  a  partnership  or  limited  liability  company)  that  is  directly  or  indirectly  controlled  fifty  percent  (50%)  or  more  (whether  by  ownership of stock, assets or an equivalent ownership interest or voting interest) by the Company  or one of its Affiliates;  (d) any  corporation, trade or business (including, without  limitation, a  partnership or limited liability company) that directly or indirectly controls fifty percent (50%) or  more (whether by ownership of stock, assets or an equivalent ownership interest or voting interest)  of the Company; and (e) any other entity in which the Company or any of its Affiliates has  a  material equity interest and that is designated as an “Affiliate” by resolution of the Committee.         “Board” means the Board of Directors of the Company.         “Bonus”  means  the  incentive  compensation  payable  in  cash,  as  determined  by  the  Committee under Section 4 of the Plan.         “Cause” means, with respect to a Participant’s Termination of Employment, the following:  (a) in the case where there is an employment agreement, severance agreement, change in control  agreement or similar agreement in effect between the Company or an Affiliate and the Participant  that  defines  “cause”  (or  words  or  a  concept  of  like  import),  “cause”  as  defined  under  such  agreement; provided, however, that with regard to any agreement under which the definition of  “cause” applies only on occurrence of a change in control, such definition of “cause” shall not  apply until a change in control actually takes place and then only with regard to a termination in  connection  therewith;  or  (b)  in  the  case  where  there  is  no  employment  agreement,  severance  agreement, change in control agreement or similar agreement in effect between the Company or  an Affiliate and the Participant (or where there is such an agreement but it does not define “cause”  (or  words  or  a  concept  of  like  import)),  termination  due  to  a  Participant’s  insubordination,      





 






dishonesty, fraud, incompetence, moral turpitude, willful misconduct, refusal to perform his or her  duties or responsibilities for any reason other than illness or incapacity or materially unsatisfactory  performance of his or her duties for the Company or an Affiliate, as determined by the Committee  in its sole discretion.         “Change in Control” means the occurrence of one or more of the following events:               (a)   any  “person”  as  such  term  is  used  in  Sections  13(d)  and  14(d)  of  the  Exchange Act (other than the Company, any trustee or other fiduciary holding securities under any  employee  benefit  plan  of  the  Company,  or  any  company  owned,  directly  or  indirectly,  by  the  shareholders of the Company in substantially the same proportions as their ownership of common  stock  of  the  Company),  becoming  the  beneficial  owner  (as  defined  in  Rule  13d-3  under  the  Exchange Act), directly or indirectly, of securities of the Company representing more than fifty  percent  (50%)  of  the  combined  voting  power  of  the  Company’s  then  outstanding  securities,  excluding a person that is an “affiliate” (as such term is used in the Exchange Act) of the Company  on the Effective Date, or any affiliate of any such person;               (b)   during any period of twelve (12) months, the majority of the Board consists  of individuals other than “Incumbent Directors,” which term means the members of the Board at  the beginning of such period, and any new director (other than a director designated by a person  who  has  entered  into  an  agreement  with  the  Company  to  effect  a  transaction  described  in  subsections (a), (c), or (d) or a director whose initial assumption of office occurs as a result of  either an actual or threatened election contest (as such term is used in Rule 14a-11 of Regulation  14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or  consents  by  or  on  behalf  of  a  person  other  than  the  Board)  whose  election  by  the  Board  or  nomination for election by the Company’s shareholders was approved by a vote of a majority of  the directors who comprised the Incumbent Directors or whose election or nomination for election  was previously so approved;               (c)   upon the consummation of a merger or consolidation of the Company with  any  other  corporation,  other  than  a  merger  or  consolidation  which  would  result  in  the  voting  securities of the Company outstanding immediately prior thereto continuing to represent (either by  remaining outstanding or by being converted into voting securities of the surviving entity) fifty  percent (50%) or more of the combined voting power of the voting securities of the Company or  such  surviving  entity  outstanding  immediately  after  such  merger  or  consolidation;  provided,  however, that a merger or consolidation effected to implement a recapitalization of the Company  (or similar  transaction) in  which  no  person  (other  than  those  covered  by  the  exceptions  in  (a)  above) acquires more than fifty percent (50%) of the combined voting power of the Company’s  then outstanding securities shall not constitute a Change in Control of the Company;               (d)   upon approval by the shareholders of the Company, the Company adopts  any plan of liquidation providing for the distribution of all or substantially all its assets, provided  that this paragraph (d) shall not constitute a Change in Control with respect to a 409A Covered  Bonus; or               (e)   upon the consummation of a sale or disposition by the Company of all or  substantially all of the Company’s assets other than the sale or disposition of all or substantially                                        2     





 






all of the assets of the Company to a person or persons who beneficially own, directly or indirectly,  at least fifty percent (50%) or more of the combined voting power of the then outstanding voting  securities of the Company at the time of the sale.         Notwithstanding the foregoing, with respect to a Bonus provides for payment or settlement  upon a Change in Control and that constitutes a 409A Covered Bonus, a transaction will not be  deemed a Change in Control unless the transaction qualifies as a change in control event within  the meaning of Code Section 409A.         Further and for the avoidance of doubt, a transaction will not constitute a Change in Control  if: (i) its sole purpose is to change the state of the Company’s incorporation, or (ii) its sole purpose  is to create a holding company that will be owned in substantially the same proportions by the  persons who held the Company’s securities immediately before such transaction.         “Code”  means  the  Internal  Revenue  Code  of  1986,  as  amended.  Any  reference  to  any  section  of  the  Code  shall  also  be  a  reference  to  any  successor  provision  and  any  Treasury  Regulation promulgated thereunder.         “Committee” means the Compensation Committee of the Board appointed from time to  time by the Board (or another committee or committees of the Board appointed for purposes of  administering  the  Plan).  Each  Committee  shall  be  comprised  of  two  or  more  non-employee  directors, each of whom is an “independent director” as defined and to the extent required under  the rules and regulations of the Nasdaq Stock Market or such other applicable securities exchange  on which the Company’s common stock is then listed, listed or any national securities exchange  system  upon  whose  system  the  Company’s  common  stock  is  then  quoted,  and,  as  may  be  applicable,  “independent”  as  provided  pursuant  to  rules  promulgated  by  the  Securities  and  Exchange Commission under The Dodd-Frank Wall Street Reform and Consumer Protection Act.         “Company” has the meaning set forth in Section 1 hereof, including any successors to the  Company by operation of law.         “Corporate Officer” means any Company employee who is subject to Section 16(b) of the  Exchange Act.         “Disability” (a) shall have the meaning given to such term in an employment agreement,  severance agreement, change in control agreement, or other similar agreement in effect between  the  Company  or  an  Affiliate  and  the  Participant  to  the  extent  that  “disability”  (or  words  or  a  concept  of  like  import)  is  defined  therein,  or  (b)  if  such  an  agreement  does  not  exist  or  if  “disability” is not defined in any such agreement, shall mean, unless otherwise determined by the  Committee at the time that a Bonus opportunity is granted, a Participant’s “disability” or term of  like import) as such term is defined in the long-term disability plan of the Company applicable to  such Participant or, in the absence of such a definition, the inability of a Participant to perform the  major duties of his or her occupation for at least ninety (90) days in any one-hundred eighty (180)- day period because of sickness or injury. Notwithstanding the foregoing, for Bonuses under the  Plan  that  provide  for  payments  that  are  triggered  upon  a  Disability  and  that  constitute  “non- qualified deferred compensation” pursuant to Code Section 409A, Disability shall mean that a  Participant is disabled under Code Section 409A(a)(2)(C)(i).                                        3     





 






      “Effective Date” means July 16, 2020.         “Eligible Employee” means each employee of the Company or an Affiliate, including each  Corporate Officer.         “Exchange Act” means the Securities Exchange Act of 1934, as amended.         “Good Reason” means, with respect to a Participant’s Termination of Employment, the  following: (a) in the case where there is an employment agreement, severance agreement, change  in control agreement or similar agreement in effect between the Company or an Affiliate and the  Participant that defines “good reason” (or words or a concept of like import), a termination due to  good reason (or words or a concept of like import); provided, however, that with regard to any  agreement under which the definition of “good reason” applies only on occurrence of a change in  control (including, without limitation, a Change in Control), such definition of “good reason” shall  not apply until a change in control (including, without limitation, a Change in Control) actually  takes place and then only with regard to a termination thereafter; or (b) if such an agreement does  not exist or if “good reason” is not defined in any such agreement, this term shall not apply to such  Participant for purposes of the Plan.         “Parent”  means  any  parent  corporation  of  the  Company  within  the  meaning  of  Code  Section 424(e).         “Participant” means a Corporate Officer or other Eligible Employee described in Section  3 of the Plan.         “Performance Period” means the period for which a Bonus may be made. Unless otherwise  specified by the Committee, the Performance Period shall be the Company’s fiscal year.         “Plan” has the meaning set forth in Section 1 hereof.         “Subsidiary”  means any  subsidiary  corporation  of the Company  within  the meaning  of  Code Section 424(f).         “Termination of Employment” means (a) a termination of employment (for reasons other  than a military or personal leave of absence granted by the Company) of a Participant from the  Company and its Affiliates, or (b) when an entity employing a Participant ceases to be an Affiliate,  unless the Participant otherwise is, or thereupon becomes, employed by the Company or another  Affiliate at the time the entity ceases to be an Affiliate.    Section 3.  Participation.         A Corporate Officer or other Eligible Employee designated by the Committee shall be a  Participant in the Plan and shall continue to be a Participant until advised or determined otherwise.   Section 4.  Bonuses.         (a)   Performance Measures and Goals. The Committee shall establish the performance  measures and goals for the earning of Bonuses based on a Performance Period applicable to each                                        4     





 






Participant or class of Participants in writing prior to the beginning of the applicable Performance  Period or, at such later date as determined by the Committee in its sole discretion, provided that  the outcome is substantially uncertain. The performance goals may be based upon the attainment  of specified levels of Company (or subsidiary, division or other operational unit of the Company)  performance either on an absolute basis or relative to the performance of other corporations and/or  on an individual Participant’s performance, in any event, as determined by the Committee in its  sole discretion.         (b)   Adjustments. In evaluating whether and to what extent a performance goal has been  satisfied with respect to a Performance Period, the Committee may, in its sole discretion, adjust  the performance goals to reflect, or disregard and exclude the impact of, unanticipated, external or  other items, events, occurrences or circumstances determined by the Committee, including, but  not limited to: (i) restructurings, discontinued operations, disposal of a business, extraordinary  items, and other unusual or non-recurring charges, events or circumstances, (ii) an event either not  directly related to the operations of the Company (or a subsidiary, division or other operational  unit of the Company) or not within the reasonable control of the Company’s management, (iii) the  operations of any business acquired by the Company (or a subsidiary, division or other operational  unit  of  the  Company),  (iv)  a  change  in  accounting  standards  required  by  generally  accepted  accounting principles, or (v) the effect of changes in laws or provisions affecting reported results.         (c)   Performance Evaluation. Within a reasonable time after the close of a Performance  Period,  the  Committee  shall  determine  whether  the  performance  goals  established  for  that  Performance  Period  have  been  met.  If  the  performance  goals  and  any  other  material  terms  established by the Committee have been satisfied, the Committee shall so certify in writing before  the applicable Bonus is paid to a Participant pursuant to Section 4(e).         (d)   Bonuses. If the Committee has made the written certification under Section 4(c) for  a  Performance  Period,  each  Participant  to  whom  the  certification  applies  shall  be  eligible  for  payment of a Bonus for the Performance Period. The amount of the Bonus paid to each Participant  shall be determined by the Committee. For any Performance Period, however, the Committee shall  retain the discretion to increase or decrease the amount of, or eliminate entirely, the Bonus to any  Participant based on its review of the performance goals for each Participant pursuant to Section  4(c) and the individual performance of such Participant.         (e)   Payment or Deferral of the Bonus.               (i)   Payment; Withholding. Subject to Section 4(e)(ii), the Company shall pay        the Bonus to the Participant following the Committee’s determination under Section 4(d)        of the amount of the Bonus, but in any event, within the two and one-half month period        following the end of the Performance Period. The Company shall have the right to deduct        from any Bonus any applicable income and employment taxes and any other amounts that        the Company is otherwise required or permitted to deduct.               (ii)  Deferral.  Subject  to  Section  7(k)  (regarding  Code  Section  409A)  and        subject to the Committee’s approval and applicable law, a Participant may request that        payment of a Bonus be deferred under a deferred compensation arrangement maintained        by  the  Company  by  making  a  deferral  election  prior  to,  or  as  permitted,  during  the                                        5     





 






Performance Period, pursuant to such rules and procedures as the Committee may establish  from time to time with respect to such arrangement.   (f)   Eligibility for Payments; Effect of Termination of Employment.         (i)   Continuous  Employment  Required. Except  as  otherwise  provided  in  this  Section 4(f), a Participant shall be eligible to receive a Bonus for a Performance Period  only if such Participant is employed by the Company continuously from the beginning of  the Performance Period through the date of payment of the Bonus.         (ii)  Termination of Employment. Unless an employment agreement, severance  agreement, change in control agreement, or other similar agreement in effect between the  Company or an Affiliate and a Participant provides for more favorable treatment, in the  event of a Termination of Employment, a Participant’s Bonus will be treated as set forth  below:               (A)   Voluntary Resignation Without Good Reason; For Cause. In the        event of a Participant’s Termination of Employment due to a voluntary resignation        without Good Reason or by the Company for Cause, in either case, prior to the date        of payment of any Bonus, the Participant shall forfeit such Bonus.               (B)   Death or Disability. In the event of a Participant’s Termination of        Employment due to death or Disability, the Participant will receive payment of (I)        any Bonus for a Performance Period that ended prior to the fiscal year in which the        Termination of Employment occurs, based on actual performance and payable at        the  time  set  forth  in  Section  4(e)(i),  and  (II)  if  the  date  of  the  Termination  of        Employment occurs within the last six (6) months of a Performance Period, any        Bonus for the Performance Period in which the termination date occurs, based on        actual performance and payable at the time set forth in Section 4(e)(i), prorated for        the number of full calendar months the Participant was employed by the Company        during the Performance Period. If the date of the Termination of Employment due        to death or Disability occurs within the first six (6) months of a Performance Period,        the  Participant  shall  forfeit  any  Bonus  for  the  Performance Period  in  which  the        termination date occurs.               (C)   Without Cause; For Good Reason. In the event of a Participant’s        Termination of Employment by the Company without Cause or by the Participant        for Good Reason, to the extent that the Participant timely executes, delivers, and        does not revoke a general waiver and release of claims in a form provided by the        Company (the “Release”), the Participant will receive payment of (I) any Bonus for        a Performance Period that ended prior to the fiscal year in which the Termination        of Employment occurs, based on actual performance and payable at the time set        forth  in  Section  4(e)(i),  and  (II)  if  the  date  of  the  Termination  of  Employment        occurs within the last six (6) months of a Performance Period, any Bonus for the        Performance  Period  in  which  the  termination  date  occurs,  based  on  actual        performance and payable at the time set forth in Section 4(e)(i), prorated for the        number  of  full  calendar  months  the Participant  was  employed  by  the  Company                                  6                               





 






            during the Performance Period. If the date of the Termination of Employment by              the Company without Cause or by the Participant for Good Reason occurs within              the first six (6) months of a Performance Period, the Participant shall forfeit any              Bonus for the Performance Period in which the termination date occurs.                     (D)   No  Duplication  of  Benefits.  For  the  avoidance  of  doubt,  if  a              Participant has an employment agreement, severance agreement, change in control              agreement, or other similar agreement in effect with the Company or an Affiliate              that addresses the treatment of the Participant’s Bonuses in the event of a particular              Termination of Employment, and either such agreement or the Plan provides for              more  favorable  treatment  with  respect  to  a  specific  type  of  Termination  of              Employment, the more favorable treatment (in such agreement or in the Plan) shall              control as to the Participant and such Bonus with respect to such Termination of              Employment; provided, however, that there will be no duplication of benefits (i.e.,              the Participant will not receive a Bonus payout for a Performance Period under both              the Plan and such other employment, severance, or change in control agreement).          (g)   Termination of Employment in Connection with a Change in Control. Unless an  employment  agreement,  severance  agreement,  change  in  control  agreement,  or  other  similar  agreement  in  effect  between  the Company  or  an  Affiliate  and  a Participant  provides  for more  favorable treatment, in the event of a Participant’s Termination of Employment by the Company  without Cause or by the Participant for Good Reason, in either case, within the ninety (90) days  prior to or the two (2) years following a Change in Control and to the extent that the Participant  timely executes, delivers, and does not revoke a Release, then notwithstanding anything herein to  the contrary, the Participant will receive payment of (i) any Bonus for a Performance Period that  ended prior to the fiscal year in which the Termination of Employment occurs, based on actual  performance and payable within thirty (30) days following the later of the effective date of the  Change in Control or the expiration of the applicable revocation period for the Release, and (ii)  any Bonus for the Performance Period in which the termination date occurs, at the target level of  performance and payable within thirty (30) days following the later of the effective date of the  Change in Control or the expiration of the applicable revocation period for the Release, prorated  for the number of full calendar months the Participant was employed by the Company during the  Performance Period.         (h)   Breach of Restrictive Covenants. Notwithstanding anything herein to the contrary,  in  the event  that  a  Participant  breaches  any  written  confidentiality,  intellectual  property  rights  assignment,  non-competition,  non-solicitation,  non-disparagement  or  other  written  restrictive  covenant agreement between the Participant and the Company or an Affiliate thereof prior to the  date of payment of any Bonus, the Participant shall forfeit such Bonus.   Section 5.  Administration.         (a)   General Administration. The Plan shall be administered by the Committee. Subject  to the terms and conditions of the Plan, the Committee is authorized and empowered in its sole  discretion to select or approve Participants and to award potential Bonuses in such amounts and  upon such terms and conditions as it shall determine.                                         7     





 






      (b)   Delegation. The Chief Executive Officer (or his or her designee) shall possess all  of the Committee’s duties and authority under the Plan with respect to Bonuses that may be payable  to  Participants  who  are  not  Corporate  Officers,  including  but  not  limited  to  such  duties  and  authority as are set forth in Sections 3 and 4, provided that the Committee shall have the power  and authority to remove from the Chief Executive Officer any and all duties and authority provided  for under this Section 5(b).         (c)   Administrative Rules. The Committee shall have full power and authority to adopt,  amend and rescind administrative guidelines, rules and regulations pertaining to the Plan and to  interpret the Plan and rule on any questions respecting any of its provisions, terms and conditions.         (d)   Committee Members Not Liable. The Committee and each of its members shall be  entitled to rely upon certificates of appropriate officers of the Company with respect to financial  and statistical data in order to determine if the performance goals for a Performance Period have  been  met.  Neither  the  Committee  nor  any  member  thereof  shall  be  liable  for  any  action  or  determination made in good faith with respect to the Plan or any Bonus made hereunder.         (e)   Decisions  Binding.  All  decisions,  actions  and  interpretations  of  the  Committee  concerning  the  Plan  shall  be  final  and  binding  on  the  Company  and  its  Affiliates  and  their  respective boards of directors, and on all Participants and other persons claiming rights under the  Plan, and all such decisions, actions and interpretations of the Committee concerning the Plan shall  be afforded the maximum deference under applicable law.   Section 6.  Amendment; Termination.         The Plan may be amended or terminated by the Board or the Committee. All amendments  to the Plan, including an amendment to terminate the Plan, shall be in writing. Solely to the extent  that  such  approval  is  necessary  to  comply  with  Department  of  the  Treasury  or  Securities  and  Exchange Commission regulations, the rules of the Nasdaq Stock Market or any other applicable  exchange  or  any  other  applicable  law  or  regulations,  an  amendment  to  the  Plan  shall  not  be  effective  without  the  prior  approval  of  the  shareholders  of  the  Company.   Unless  otherwise  expressly  provided  by  the  Board  or  the  Committee,  no  amendment  to  the  Plan  shall  apply  to  potential Bonuses with respect to a Performance Period that began before the effective date of such  amendment.   Section 7.  Other Provisions.         (a)   Duration of the Plan. The Plan is effective as of the Effective Date. The Plan shall  remain in effect until all Bonuses made under the Plan have been paid or forfeited under the terms  of the Plan and all Performance Periods related to Bonuses made under the Plan have expired.         (b)   Bonuses  Not  Assignable.  No  Bonus  or  any  right  thereto  shall  be  assignable  or  transferable by a Participant except by will or by the laws of descent and distribution. Any other  attempted assignment or alienation shall be void and of no force or effect.         (c)   Rights of Participants. The right of any Participant to receive any payments under  a Bonus granted to such Participant and approved by the Committee pursuant to the provisions of                                         8     





 






the Plan shall be an unsecured claim against the general assets of the Company. The Plan shall not  create, nor be construed in any manner as having created, any right by a Participant to any Bonus  for  a  Performance  Period  because  of  a  Participant’s  participation  in  the  Plan  for  any  prior  Performance Period, or because the Committee has made a written certification under Section 4(b)  for the Performance Period. The application of the Plan to one Participant shall not create, nor be  construed in any manner as having created, any right by another Participant to similar or uniform  treatment  under  the  Plan.  Solely  with  respect  to  a  Participant  who  is  party  to  an  employment  agreement, severance agreement, change in control agreement, or other similar agreement in effect  between the Company or an Affiliate and such Participant, the provisions of the Plan are in all  respects subject to the terms and conditions of such agreement as if they were set forth fully herein.         (d)   Termination  of  Employment.  The  Company  retains  the  right  to  terminate  the  employment of any Participant or other employee at any time for any reason or no reason, and a  Bonus is not, and shall not be construed in any manner to be, a waiver of such right.         (e)   Exclusion from Benefits. Bonuses under the Plan shall not constitute compensation  for the purpose  of determining  participation  or  benefits  under  any  other  plan  of  the  Company  unless specifically included as compensation in such plan.         (f)   Successors.  Any  successor  (whether  direct  or  indirect,  by  purchase,  merger,  consolidation or otherwise) to all or substantially all of the Company’s business or assets, shall  assume the Company’s liabilities under the Plan and perform any duties and responsibilities in the  same manner and to the same extent that the Company would be required to perform if no such  succession had taken place.         (g)   Governing  Law.  The  Plan  and  actions  taken  in  connection  herewith  shall  be  governed and construed in accordance with the laws of the State of New York (regardless of the  law that might otherwise govern under applicable New York principles of conflict of laws).         (h)   Headings. Any headings preceding the text of the several sections, subsections, or  paragraphs hereof are inserted solely for convenience of reference and shall not constitute a part  of the Plan, nor shall they affect its meaning, construction or effect.         (i)   Severability. If any provision of the Plan is determined to be void by any court of  competent jurisdiction, the Plan shall continue to operate and, for the purposes of the jurisdiction  of the court only, shall be deemed not to include the provision determined to be void.         (j)   Offsets. To the extent permitted by law, the Company shall have the right to offset  from any Bonus payable hereunder any amount that the Participant owes to the Company or any  Affiliate without the consent of the Participant (or the Participant’s beneficiary, in the event of the  Participant’s death).         (k)   Code Section 409A.                (i)   Although the Company does not guarantee the particular tax treatment of        any Bonus awarded under the Plan, amounts paid under the Plan are intended to comply        with, or be exempt from, the applicable requirements of Code Section 409A and the Plan                                         9     





 






      and any Bonus shall be limited, construed and interpreted in accordance with such intent.        In  no  event  whatsoever  shall  the  Company  or  any  of  its  Affiliates  be  liable  for  any        additional tax, interest or penalties that may be imposed on a Participant by Code Section        409A or any damages for failing to comply with Code Section 409A.               (ii)  Notwithstanding anything herein to the contrary, the following provisions        shall  apply  to  any  Bonus  under  the  Plan  that  constitutes  nonqualified  deferred        compensation pursuant to Section 409A (a “409A Covered Bonus”):                     (A)   A termination of employment shall not be deemed to have occurred              for purposes of any provision of a 409A Covered Bonus providing for payment              upon  or  following  a  termination  of  the  Participant’s  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  the  409A  Covered  Bonus,              references  to  a  “termination,”  “termination  of  employment”  or  like  terms  shall              mean  Separation  from  Service.  Notwithstanding  any  provision  herein  to  the              contrary, if the Participant is deemed on the date of the Participant’s Termination              of Employment to be a “specified employee” within the meaning of that term under              Code Section 409A(a)(2)(B) and using the identification methodology selected by              the Company from time to time, or if none, the default methodology set forth in              Code Section 409A, then with regard to any such payment under a 409A Covered              Bonus,  to  the  extent  required  to  be  delayed  in  compliance  with  Code  Section              409A(a)(2)(B),  such  payment  shall  not  be  made  prior  to  the  earlier  of  (i)  the              expiration of the six (6)-month period measured from the date of the Participant’s              Separation from Service, and (ii) the date of the Participant’s death. All payments              delayed pursuant to this Section 7(k)(ii)(A) shall be paid to the Participant on the              first day of the seventh month following the date of the Participant’s Separation              from Service or, if earlier, on the date of the Participant’s death.                     (B)   Whenever  a  payment  under  a  409A  Covered  Bonus  specifies  a              payment period with reference to a number of days, the actual date of payment              within the specified period shall be within the sole discretion of the Company. In              no event shall the timing of a Participant’s execution of the Release, directly or              indirectly, result in the Participant’s designating the calendar year of payment, and              if a payment that is subject to execution of the Release could be made in more than              one taxable year, payment shall be made in the later taxable year. Each amount or              benefit  payable  pursuant  to  this  Plan  shall  be  treated  as  a  separate  and  distinct              payment for purposes of Code Section 409A.          (l)   Incentive Compensation Recoupment Policy. Notwithstanding anything herein to  the contrary, all Bonuses are subject to any incentive compensation recoupment or clawback policy  maintained by the Company from time to time.                                                   10