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Exhibit 10.29
BED BATH AND BEYOND INC.
2001 STOCK OPTION PLAN
1 Purpose.
The purpose of the Bed Bath & Beyond Inc. 2001 Stock Option Plan (the
"Plan") is to encourage and enable key employees (which term, as used herein,
shall include officers), and directors of Bed Bath & Beyond Inc. or a parent (if
any) or subsidiaries thereof (collectively, unless the context otherwise
requires, the "Company"), consultants, and advisors to the Company, and other
persons or entities providing goods or services to the Company to acquire a
proprietary interest in the Company. (Such directors, members, consultants,
advisors, and other persons or entities providing goods or services to the
Company and entitled to receive options hereunder being collectively referred to
as the "Associates," and the relationship of the Associates to the Company being
referred to as "association with" the Company.) Such ownership will provide such
employees and Associates with a more direct stake in the future welfare of the
Company and encourage them to remain employed by or associated with the Company.
It is also expected that the Plan will encourage qualified persons to seek and
accept employment or association with the Company.
2 Effective Date and Term of Plan.
(a) The effective date of the Plan shall be February 28, 2001, the date the
Plan was adopted by the Board of Directors of the Company (the "Board").
(b) No option shall be granted under the Plan on or after the tenth
anniversary of the effective date of the Plan, but options previously granted
may extend beyond that date.
3 Administration.
(a) The Plan shall be administered by one or more committees appointed from
time to time by the Board (each such committee being referred to as a
"Committee"). In the event that more than one Committee is appointed by the
Board, the Board shall specify with respect to each Committee the group of
employees and Associates with respect to which such Committee shall have the
power to grant options. In the event that more than one Committee is appointed
by the Board, then each reference in the Plan to "the Committee" shall be deemed
a reference to each such Committee (subject to the last sentence of this
paragraph); provided, however, that each such Committee may only exercise the
power and authority granted to "the Committee" by the Plan with respect to those
employees and Associates that it has the power to grant options to as specified
in the resolution of the Board appointing such Committee. Each Committee shall
be comprised of two or more directors. A majority of the members of each
Committee shall constitute a quorum, and all determinations of the Committee
shall be made by a majority of its members. Any determination of any Committee
under the Plan may be made, without notice or meeting of the Committee, by a
writing signed by a majority of the Committee members. All members of each
Committee shall be "non-employee directors" within the meaning of Rule 16(b)-3
under the Securities Act of 1933, as amended (the "Act"); provided, however,
that the foregoing shall not apply to any Committee that does not have the power
to grant options to officers or directors of the Company or otherwise make any
decisions with respect to the timing or the pricing of any options granted to
such officers and directors. If pursuant to the preceding sentence a Committee
is required to be comprised of "non-employee directors," then the members of
such Committee shall not be eligible to receive options under the Plan. In the
event that more than one Committee is appointed by the Board, the power to amend
the Plan granted by Section 9(b) hereof may only be
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exercised by a Committee all of whose members are "non-employee directors"
within the meaning of Rule 16(b)-3 under the Act.
(b) The Committee shall have authority, not inconsistent with the express
provisions of the Plan, (i) to grant options which are not intended to be
incentive stock options as defined in Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code") to such eligible employees and Associates of
the Company as the Committee may select; provided, however, that (a) the maximum
number of options that may be granted under this Plan to any employee or
Associate of the Company over the term of the Plan shall not exceed 1,000,000
shares (subject to any adjustment in accordance with Section 7(b)), and (b)
options shall only be granted to directors and officers (as defined in Rule
16(a)-1(f) under the Securities Exchange Act of 1934, as amended) of the Company
to the extent permitted by the rules of the National Association of Securities
Dealers, for so long as the Stock is quoted through the NASDAQ (as defined
below), and/or the rules and regulations of such other automated quotation
systems or securities exchanges on which the Stock (as defined below) may
hereafter be listed; (ii) to determine the time or times when options shall be
granted and the number of Shares subject to each option; (iii) to determine the
terms and conditions of each option; (iv) to prescribe the form or forms of
instruments evidencing options and any other instruments required under the Plan
and to change such forms from time to time; (v) to adopt, amend and rescind
rules and regulations for the administration of the Plan; and (vi) to interpret
the Plan and to decide any questions and settle all controversies and disputes
that may arise in connection with the Plan. Any determination, decision or
action of the Committee in connection with the construction, interpretation,
administration or application of the Plan shall be final and conclusive on all
persons participating in the Plan.
4 Shares Subject to the Plan.
(a) Number of Shares.
Subject to adjustment as provided in Section 7, the aggregate number of
shares of the Company's common stock (the "Shares" or "Stock") that may be
delivered upon the exercise of options granted under the Plan shall be
10,000,000. If any option granted under the Plan terminates without having been
exercised in full, the number of Shares as to which such option was not
exercised shall be available for future grants within the limits set forth in
this Section 4(a).
(b) Shares to be Delivered.
Shares delivered under the Plan shall be authorized but unissued Stock or,
if the Committee so decides in its sole discretion, previously issued Stock
acquired by the Company and held in treasury. No fractional shares of Stock
shall be delivered under the Plan.
5 Eligibility for Options.
Employees and Associates of the Company eligible to receive options under
the Plan shall be those employees and Associates who, in the opinion of the
Committee, are in a position to make a significant contribution to the success
of the Company. In addition, directors and officers (as defined in Rule
16(a)-1(f) under the Securities Exchange Act of 1934, as amended) of the Company
shall only be eligible to receive options under the Plan to the extent permitted
by the rules of the National Association of Securities Dealers, for so long as
the Stock is quoted through the NASDAQ (as defined below), and/or the rules and
regulations of such other automated quotation systems or securities exchanges on
which the Stock may hereafter be listed. Receipt of options under the Plan or of
awards under any other employee benefit plan of the Company shall not preclude
an employee from receiving options or additional options under the Plan.
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6 Terms and Conditions of Options.
(a) Exercise Price. The exercise price of each option shall be determined
by the Committee which may be based on the fair market value per share of Stock
at the time the option is granted. The fair market value of a share of Stock as
of any date shall be determined for purposes of the Plan by such method as the
Committee determines to be reasonable.
(b) Duration of Options. An option shall be exercisable during such period
or periods as the Committee may specify. The latest date on which an option may
be exercised (the "Final Exercise Date") shall be the date which is ten years
from the date the option was granted or such earlier date as may be specified by
the Committee at the time the option is granted.
(c) Exercise of Options.
(1) At the time of the grant of an option, the Committee shall specify
whether the option shall be exercisable in full at any time prior to
the Final Exercise Date or in installments (which may be cumulative or
noncumulative). In the case of an option not immediately exercisable
in full, the Committee may at any time accelerate the time at which
all or any part of the option may be exercised.
(2) The award forms or other instruments evidencing options shall contain
such provisions relating to exercise and other matters as the
Committee may determine.
(3) Any exercise of an option shall be in writing, signed by the proper
person and delivered or mailed to the Company, accompanied by (a) the
option certificate and any other documents required by the Committee
and (b) payment in full for the number of Shares for which the option
is exercised.
(4) The Committee shall have the right to require that the individual
exercising the option remit to the Company an amount sufficient to
satisfy any federal, state, or local withholding tax requirements (or
make other arrangements satisfactory to the Company with regard to
such taxes) prior to the delivery of any Stock pursuant to the
exercise of the option.
(5) If an option is exercised by the executor or administrator of a
deceased employee or Associate, or by the person or persons to whom
the option has been transferred by the employee or Associate, the
Company shall be under no obligation to deliver Stock pursuant to such
exercise until the Company is satisfied as to the authority of the
person or persons exercising the option.
(d) Termination of Employment.
An employee's options shall terminate immediately upon the termination of
his employment with the Company, subject to the following exceptions: (i) if the
termination is by reason of the death or disability of the employee, the
unexercised portion of such options shall continue to be exercisable for 12
months after such termination and (ii) if the termination is for any other
reason, excluding termination for cause, the unexercised portion of such options
shall continue to be exercisable for three months after such termination.
Notwithstanding the foregoing, the Committee in its discretion in any particular
case may provide that upon termination of an employee's employment with the
Company, the unexercised portion of his options shall continue to be exercisable
for a longer or shorter period than the period provided for in the preceding
sentence; provided, however, that the Committee may not provide for a shorter
period after the option is granted. For purposes of this Section 6(d),
employment shall not be considered terminated (i) in the case of sick leave or
other bona fide leave of absence approved for purposes of the Plan by the
Committee, so long as the employee's right to reemployment is guaranteed either
by statute or by contract, or (ii) in the case of a transfer of employment
between the Company and a subsidiary or between subsidiaries, or to the
employment of a corporation (or
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a parent or subsidiary corporation of such corporation) issuing or assuming an
option in a transaction to which Section 424(a) of the Code applies.
(e) Payment for Stock.
Stock purchased under the Plan shall be paid for as follows: (i) in cash or
by certified check, bank draft or money order payable to the order of the
Company or (ii) if so permitted by the Committee (not later than the time of
grant, in the case of an incentive option), (A) through the delivery of shares
of Stock (including shares acquired under the option then being exercised)
having a fair market value (determined as provided in Section 6(a)) on the date
of exercise equal to the purchase price or (B) by a combination of cash and
Stock as provided in clauses (i) and (ii)(A) above or (C) by delivery of a
promissory note of the option holder to the Company, such note to be payable in
the case of an incentive option, on such terms as are specified in the option
(except that, in lieu of a stated rate of interest, an incentive option may
provide that the rate of interest on the note will be such rate as is
sufficient, at the time the note is given, to avoid the imputation of interest
under the applicable provisions of the Code), or by a combination of cash (or
cash and Stock) and the option holder's promissory note; provided, that if the
Stock delivered upon exercise of the option is an original issue of authorized
Stock, at least so much of the exercise price as represents the par value of
such Stock shall be paid in cash or by a combination of cash and Stock.
(f) Delivery of Stock.
An option holder shall not have the rights of a shareholder with regard to
awards under the Plan except as to Stock actually received by him under the
Plan. The Company shall not be obligated to deliver any shares of Stock (a)
until, in the opinion of the Company's counsel, all applicable federal and state
laws and regulations have been complied with, and (b) if the outstanding Stock
is at the time listed on any stock exchange or quoted through the National
Association of Securities Dealers Automatic Quotation ("NASDAQ") National Market
System, until the shares to be delivered have been listed or authorized to be
listed on such exchange or System upon official notice of issuance, and (c)
until all other legal matters in connection with the issuance and delivery of
such shares have been approved by the Company's counsel. If the sale of Stock
has not been registered under the Act, the Company may require, as a condition
to exercise of the option, such representations or agreements as counsel for the
Company may consider appropriate to avoid violation of the Act and may require
that the certificates evidencing such Stock bear an appropriate legend
restricting transfer.
(g) Nontransferability of Options.
In the case of an option which is not an incentive stock option, the
Committee may provide that options may be transferred to the extent and subject
to such limitations as the Committee may specify.
(h) Restrictions on Stock.
The Committee may provide that shares of Stock purchased through the
exercise of options under the Plan be subject to such restrictions on resale,
including restrictions requiring resale to the Company at or below fair market
value, or such other restrictions, as the Committee in its sole discretion shall
determine, and shall take such steps as it deems necessary or appropriate to
carry out the purposes of any such restriction.
7 Mergers, Recapitalizations, etc.
(a) In the event of a consolidation or merger in which the Company is not
the surviving corporation or in the event of any transaction that results in the
acquisition of substantially all of the Company's outstanding Stock by a single
person or entity or by a group of persons and/or entities acting in concert, or
in the event of the sale or transfer of substantially all of the Company's
assets (all the foregoing being referred to as "Acquisition Events"), then the
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Committee may in its discretion terminate all outstanding options by delivering
notice of termination to each option holder; provided, however, that, during the
20-day period following the date on which such notice of termination is
delivered, each option holder shall have the right to exercise in full all of
his options that are then outstanding (without regard to limitations on exercise
otherwise contained in the options). If an Acquisition Event occurs and the
Committee does not terminate the outstanding options pursuant to the preceding
sentence, then the provisions of Section 7(b) shall apply.
(b) In the event of a stock dividend, stock split or combination of shares,
recapitalization or other change in the Company's capital stock, the number and
kind of shares of stock of securities of the Company subject to options then
outstanding or subsequently granted under the Plan, the maximum number of shares
or securities that may be delivered under the Plan, the exercise price, and
other relevant provisions shall be appropriately adjusted by the Committee. The
Committee may also adjust the number of shares subject to outstanding options,
the exercise price of outstanding options and the terms of outstanding options
to take into consideration any other event (including, without limitation,
accounting changes) if the Committee determines that such adjustment is
appropriate to avoid distortion in the operation of the Plan. All determinations
and adjustments made by the Committee pursuant to this Section 7(b) shall be
binding on all persons.
(c) The Committee may grant options under the Plan in substitution for
options held by employees of another corporation who concurrently become
employees of the Company or a subsidiary of the Company as the result of a
merger or consolidation of the employing corporation with the Company or a
subsidiary of the Company, or as the result of the acquisition by the Company of
property or stock of the employing corporation. The Company may direct that
substitute awards be granted on such terms and conditions as the Committee
considers appropriate in the circumstances.
8 Limitation on Rights.
Neither the adoption of the Plan nor the grant of options shall confer upon
any employee any right to continued employment with the Company or affect in any
way the right of the Company to terminate the employment of an employee at any
time. Except as specifically provided by the Committee in any particular case,
the loss of existing or potential profit in options granted under this Plan
shall not constitute an element of damages in the event of termination of the
employment of an employee even if the termination is in violation of an
obligation of the Company to the employee by contract or otherwise.
9 Effect, Discontinuance, Cancellation, Amendment and Termination.
(a) Neither adoption of the Plan nor the grant of options to an employee
shall affect the Company's right to grant to such employee options that are not
subject to the Plan, to issue to such employees Stock as a bonus or otherwise,
or to adopt other plans or arrangements under which Stock may be issued to
employees.
(b) The Committee may at any time discontinue granting options under the
Plan. With the consent of the option holder, the Committee may at any time
cancel an existing option in whole or in part and grant the option holder
another option for such number of shares as the Committee specifies The
Committee may at any time or times amend the Plan or any outstanding option for
the purpose of satisfying any changes in applicable laws or regulations or for
any other purpose which may at the time be permitted by law, or at any time
terminate the Plan as to any further grants of options, provided that (except to
the extent expressly required or permitted above) no such amendment shall,
without the approval of the Board, (a) increase the maximum number of shares
available under the Plan, (b) change the group of employees or Associates
eligible to receive options under the Plan, (c) extend the time within which
options may be granted, or (d) amend the provisions of this Section 9, and no
such amendment shall adversely affect the rights of any option holder (without
such holder's consent) under any option previously granted.