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Exhibit 10.16
BED BATH & BEYOND INC.
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
As of December 1, 1994
Xx. Xxxxxx X. Xxxxxxx
Dear Xxxxx:
We write to set forth our agreement with respect to your
employment as an executive of Bed Bath & Beyond Inc. (the "Company").
Your current title with the Company is Director of Real Estate and
General Counsel.
1. DUTIES. The Company hereby agrees to employ you, and you
agree to be employed by the Company, on the terms and conditions
hereinafter set forth. You will perform such duties as may from time to
time be assigned to you by either of the current Co-Chief Executive
Officers of the Company, or by the Board of Directors of the Company
provided such duties are no less responsible than those theretofore
assigned to you by either of the current Co-Chief Executive Officers of
the Company. You agree to serve the Company faithfully, diligently and
competently, and to devote your full working time, energy and skill to
the Company's business. Your place of employment will remain in the
greater New York area unless you consent to move.
2. COMPENSATION. The Company will pay you an annual salary at
a rate not less than your current salary, payable in accordance with
the Company's customary payroll practices from time to time in effect.
The Company will review your compensation annually and may, in its sole
discretion, increase your annual salary. At no time will your annual
salary be less than your annual salary in the immediately preceding
year. You will be entitled to participate in such privileges and in
such insurance and other benefit programs as are generally made
available to the Company's employees to the extent you meet the
eligibility requirements for such privileges and programs. You will be
entitled to take vacations in accordance with the Company's vacation
policy for managers from time to time in effect.
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As of December 1, 1994
Page 2
3. SEVERANCE COMPENSATION.
(a) Your employment by the Company is not for any specific
term but rather is on an ongoing at-will basis with the right by the
Company and you to terminate your employment at any time. If the
Company terminates your employment for any reason other than for
"cause", then the Company shall pay you, as severance pay, provided
that you have not breached the provisions of paragraph 4 hereof, your
salary at the rate in effect immediately prior to such termination, for
a period of three (3) years, in normal payroll installments in
accordance with the Company's then payroll practices or, at the
Company's option, in a lump sum. Thus, if you have not violated the
non-compete restrictions in paragraph 4 hereof during a period expiring
one year after the termination of your employment (as well as the other
restrictions in that paragraph), the Company will guarantee that you
will receive your salary for a period of three (3) years. This
three-year severance obligation shall also apply if the Company
terminates your employment by reason of your death or disability. Your
severance pay under paragraphs 3 (a) and (c) shall be reduced by any
salary, bonus or like monetary compensation earned by you as a result
of your employment by another employer or otherwise. The Company shall
have "cause" to terminate your employment only if you have (i) acted in
bad faith or with dishonesty, (ii) wilfully failed to follow the
reasonable and lawful directions of the Company's current Co-Chief
Executive Officers or the Board of Directors commensurate with your
title and duties, (iii) performed your duties with gross negligence, or
(iv) been convicted of a felony.
(b) In addition, if the Company terminates your employment for
any reason other than for "cause", and if at the date of such
termination there are options granted to you by the Company under any
option plan which was then not exercisable by reason of the installment
terms thereof, the Company shall take such steps as may be necessary or
appropriate to make such options immediately exercisable for a period
of at least thirty (30) days following the termination of your
employment.
(c) If you voluntarily leave the employ of the Company for any
reason, the Company shall pay you, as severance pay, provided that you
have not breached the provisions of paragraph 4 hereof and provided the
Company shall not have "cause" to terminate your employment, your
salary at the rate in effect immediately prior to your leaving the
Company's employ for a period of one (1) year in normal payroll
installments in accordance with the Company's then payroll practices
or, at the Company's option, in a lump sum.
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As of December 1, 1994
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4. ADDITIONAL PROVISIONS. During your employment by the
Company and for a period of one year thereafter, you agree that you
will not: (a) whether alone or in association with any other person,
directly or indirectly, engage or be interested in any business or
enterprise in the United States that is competitive with the business
of the Company. For purposes of this paragraph, you will be considered
to have been engaged or interested in any business or enterprise if you
are interested in such business or enterprise as a stockholder,
director, officer, employee, agent, broker, partner, individual
proprietor, lender, consultant or in any other capacity, except that
nothing herein contained will prevent you from owning less than one
percent (1%) of any class of equity or debt securities of any publicly
traded company. For purposes of this paragraph, a business or
enterprise will be deemed competitive with the business of the Company
if it includes the operation of specialty stores substantially engaged
in the sale of linens, housewares or home furnishings; (b) whether
alone or in association with any other person, directly or indirectly,
(i) solicit or induce, or attempt to solicit or induce, any employee of
the Company to leave the employ of the Company; (ii) employ, or solicit
for employment, on your behalf or on behalf of any other person (other
than the Company), any person that is or was at any time an employee of
the Company; or (iii) trade with any supplier of the Company without
the Company's consent. You also agreed that you will not during or
after your employment by the Company, knowingly divulge, furnish or
make accessible to any third person or organization other than in the
regular course of the Company's business any confidential information
concerning the Company or its subsidiaries or its or their business,
including, without limitation, confidential methods of operation and
organization, confidential sources of supply and customer or other
mailing lists.
The provisions of this paragraph 4 shall survive the end of
the term of your employment hereunder. You acknowledge that any remedy
at law for a breach or threatened breach of any of the provisions of
this paragraph 4 may be inadequate and that accordingly the Company
shall be entitled to an injunction or specific performance or any other
mode of equitable relief without the necessity of showing any actual
damage, posting a bond or furnishing other security.
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As of December 1, 1994
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5. MISCELLANEOUS.
(a) The Company may, at its option and for its benefit, obtain
insurance with respect to your death, disability or injury. You agree
to submit to such physical examinations and supply such information as
may be reasonably required in order to permit the Company to obtain
such insurance.
(b) Any notice or other communication required or permitted to
be given hereunder shall be deemed to have been duly given when
personally delivered or when sent by registered mail, return receipt
requested, postage prepaid, as follows:
If to the Company, at:
Bed Bath & Beyond Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
If to you, at:
Either party hereto may change its or his address for the
purpose of this paragraph by written notice similarly given.
(c) Neither party hereto may assign its rights or delegate its
duties hereunder, except that the Company may assign it rights
hereunder to any person that (i) acquires substantially all of the
business and assets of the Company (whether by merger, consolidation,
purchase of assets or other acquisition transaction) and (ii) agrees in
writing to assume the obligations of the Company hereunder. This
agreement shall be construed and enforced in accordance with the
internal laws of the State of New York, without regard to principles of
conflicts of laws. Nothing in this agreement shall create, or be deemed
to create, any third party beneficiary rights in any person, including,
without limitation, any employee of the Company other than you. You
agree that all actions or proceedings relating to this agreement shall
be tried and litigated only in the New York State or Federal courts
located in the County of New York, State of New York. You hereby
irrevocably submit to the exclusive jurisdiction of such courts for the
purpose of any such action or proceeding. If any provision of this
agreement shall be held to be invalid or unenforceable, such invalidity
or unenforceability shall attach only to such provision and shall not
affect or render invalid or unenforceable any other provision of this
agreement, and this agreement shall be construed as if such provision
had been drawn so as not to be invalid or unenforceable. This letter
sets forth our entire understanding with respect to the subject matter
hereof and cannot be changed, waived or terminated except by a writing
signed by you and the Company. Any waiver by either party of a breach
of any provision of this
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As of December 1, 1994
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agreement shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision
of this agreement.
If the foregoing correctly sets forth your understanding of
our agreement, please so indicate by signing and returning to us a copy
of this letter.
BED BATH & BEYOND INC.
By:___________________________
Xxxxxx Xxxxxxxxx
ACCEPTED AND APPROVED:
____________________________________
Xx. Xxxxxx X. Xxxxxxx
