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Exhibit 10.13
AGREEMENT CONCERNING "SPLIT-DOLLAR" LIFE INSURANCE PLAN
AGREEMENT made this 16th day of June, 1995, between BED BATH &
BEYOND, INC. (the "Employer"), JAY D. WAXENBERG, as Trustee (the "Trustee") of
the LEONARD JOSEPH FEINSTEIN LIFE INSURANCE TRUST, dated May 18, 1993 (the
"Trust"), LEONARD JOSEPH FEINSTEIN and SUSAN FEINSTEIN.
WHEREAS:
1. The Trust owns two policies of insurance on the joint
lives of LEONARD JOSEPH FEINSTEIN and his wife, SUSAN FEINSTEIN (the
"Insureds").
2. The policies of insurance owned by the Trust and referred
to in this Agreement were issued by the NEW YORK LIFE INSURANCE COMPANY as
Policy No. 44902629 and by the GUARDIAN LIFE INSURANCE COMPANY OF AMERICA as
Policy No. 3731898, respectively. In this Agreement, each insurance company is
referred to as the "Insurer", both insurance companies are collectively referred
to as the "Insurers", each policy is referred to as the "Policy" and both
policies are collectively referred to as the "Policies".
3. LEONARD JOSEPH FEINSTEIN is employed by the Employer.
4. The Employer has agreed to establish a split-dollar life
insurance plan (the "Plan") to assist the Trust in paying premiums due on the
Policies.
5. The Trust has agreed to assign to the Employer certain
specific rights in and to the Policies in consideration of payment by the
Employer of premiums due on the Policies.
NOW, THEREFORE, the Employer, the Trust and the Insureds agree
that:
1. Payment of Premiums: On or before the date or dates on
which each premium becomes due (a) the Trust will pay to each Insurer a portion
of the premium for the Policy issued by it equal to the current term rate
(defined below) for the portion of the insurance proceeds the Trust would
receive on the death of the last surviving Insured during the year in which such
premium is due and (b) the Employer will pay to each
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Insurer the balance of the premium for the Policy issued by it. The "current
term rate" with respect to each Policy is (a) while the Insureds are both
living, an amount equal to the lesser of the issuing Insurer's rate for a
joint/survivorship one year term life insurance policy available to all standard
risks or the rate determined under the principles of Revenue Rulings 64-328 and
66-110 (commonly known as the "U.S. 38 rates") and (b) while only one of the
Insureds is living, an amount equal to the lesser of the issuing Insurer's rate
for a single life one year term life insurance policy available to all standard
risks or the rate determined under the principles of Revenue Rulings 64-328 and
66-110 (commonly known as the "P.S. 58 rates").
2. Dividends: Dividends declared by each Insurer will be
used to purchase additional paid-up insurance on the lives of the Insureds and
not to reduce any premium due on the Policy issued by it.
3. Policy Ownership and Collateral Assignment: The Trust
will continue to own each Policy and shall assign to the Employer, subject to
the terms and conditions of each Policy and to any superior liens that each
Insurer may have against the Policy issued by it, the following specific rights
in and to each Policy:
(a) The right to obtain, upon surrender of said Policy
by the Trust, an amount from the surrender proceeds equal to but not exceeding
the amount of the Employer's interest in the Policy (as defined in Paragraph 4
below). If the amount of the Employer's interest in the policy exceeds the
surrender proceeds, any shortfall shall be paid to the Employer by the Insureds.
(b) The right to collect, upon a claim by the Trust
under said Policy by reason of the death of the Insureds, an amount from the
proceeds equal to but not exceeding the amount of the Employer's interest in the
Policy (as defined in Paragraph 4 below).
(c) The exclusive right to obtain loans secured by said
Policy; provided, however, that the aggregate amount of such loans, together
with interest, shall at no time exceed the aggregate amount of premiums paid by
the Employer with respect to said Policy, and all interest charges with respect
to such loans shall be paid by the Employer.
As owner of each Policy, the Trust will possess and exercise
exclusively all remaining rights in and to each Policy not otherwise assigned to
the Employer by reason of this Agreement, including, without limitation, the
right to assign each Policy to a third party, the right to designate the
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beneficiary or beneficiaries of any death benefit of each Policy in excess of
the Employer's interest in the Policy and the right to surrender each Policy.
The Employer agrees that it will not exercise its rights in
and to the Policies in any way that may conflict with the exercise by the Trust
of its rights in and to the Policies or that may delay or otherwise interfere
with receipt by its designated beneficiary or beneficiaries of any death benefit
under each Policy in excess of the Employer's interest in the Policy. The
Employer agrees that it will not assign its rights in and to the Policies to any
person or entity other than the Trust without the prior consent of the Trustee.
The Trust agrees to notify the Employer of any assignment of
its rights in and to each Policy, in whole or in part.
4. Employer's interest in the Policy: With respect to each
Policy, the amount of the Employer's interest in the Policy, wherever referred
to in this Agreement, is an amount equal to (1) the difference between (i) the
aggregate amount of premiums paid by the Employer with respect to said Policy
and (ii) the aggregate amount, if any, paid by or on behalf of the Trust to the
Employer in reimbursement of premiums paid by the Employer with respect to said
Policy, less (2) the amount of any loans from the Insurer to the Employer
against the cash value of said Policy, plus any interest thereon.
5. Termination of Agreement: This Agreement will terminate
with respect to each Policy upon whichever of the following is the first to
occur:
(a) Surrender of the Policy by the Trust.
(b) Payment by or on behalf of the Trust to the Employer
of an amount equal to the amount of the Employer's interest in the Policy.
(c) The death of the last survivor of the Insureds.
Upon termination of this Agreement and receipt by the Employer
of the amount of the Employer's interest in the Policy, the Employer agrees to
execute such documents as may be reasonably required by the Trust to release the
Employer's rights in and to said Policy.
6. Amendment and Effect: This Agreement contains the entire
understanding between the Trust, the Employer and the
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Insureds concerning the matters addressed herein. This Agreement, or any of its
provisions, may not be amended, supplemented, modified or waived unless by a
writing signed by the party to be bound thereby. If any provision of this
Agreement is determined to be void, invalid or unenforceable, the remaining
provisions will not be affected, but will continue effect as though such void,
invalid or unenforceable provision were not originally a part of this Agreement.
This Agreement will benefit and bind the heirs, executors, administrators,
personal representatives, successors and assigns of each of the parties hereto.
Notwithstanding the foregoing, the Trustee is entering into this Agreement
solely in his capacity as Trustee and not individually.
7. Special Provisions: The following provisions are part of
this agreement and are intended to meet the requirements of the Employee
Retirement Income Security Act of 1974:
(a) The named fiduciary: The Employer.
(b) The funding policy under this Plan is that all
premiums on the Policies shall be remitted to the
Insurer when due.
(c) Direct payment by the Insurers is the basis of
payment of benefits under this Plan, with those
benefits in turn being based on the payment of
premiums as provided in the Plan.
(d) For claims procedure purposes, the "Claims Manager"
shall be the Secretary of the Employer.
(1) If for any reason a claim for benefits under
this plan is denied by the Employer, the Claims
Manager shall deliver to the claimant a written
explanation setting forth the specific reasons
for the denial, pertinent references to the
Plan section on which the denial is based, such
other data as may be pertinent and information
on the procedures to be followed by the
claimant in obtaining a review of the claim,
all written in a manner calculated to be
understood by the claimant. For this purpose:
(A) The claimant's claim shall be deemed
filed when presented orally or in
writing to the Claims Manager.
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(B) The Claims Manager's explanation shall
be in writing delivered to the claimant
within 90 days of the date the claim is
filed.
(2) The claimant shall have 60 days following
receipt of the denial of the claim to file with
the Claims Manager a written request for review
of the denial. For such review, the claimant or
the claimant's representative may submit
pertinent documents and written issues and
comments.
(3) The Claims Manager shall decide the issue on
review and furnish the claimant with a copy
within 60 days of receipt of the claimant's
request for review of the claim. The decision
on review shall be in writing and shall include
specific reasons for the decision, written in a
manner calculated to be understood by the
claimant, as well as specific references to the
pertinent Plan provisions on which the decision
is based. If a copy of the decision is not so
furnished to the claimant within such 60 days,
the claim shall be deemed denied on review.
8. Governing Law: This Agreement will be governed by and
its validity, effect and interpretation determined by the laws of the State of
New Jersey applicable to contracts made and to be performed wholly in that
state.
9. Further Assurances: Each party, upon the other's request
and without cost to the other, agrees to take any action, and to sign,
acknowledge and deliver to the other party any additional document, necessary or
expedient to effectuate the purposes of this Agreement.
10. Counterparts: This Agreement may be executed in
counterparts, each of which will be an original, which together will constitute
one Agreement.
IN WITNESS WHEREOF, the parties have signed this
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Agreement as of the day and year first written above.
ATTEST: BED BATH & BEYOND, INC.
/s/Leonard Feinstein By: /s/Warren Eisenberg
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WITNESS: LEONARD JOSEPH FEINSTEIN LIFE
INSURANCE TRUST, UNDER
AGREEMENT DATED MAY 18, 1993
/s/ Kenna Hudson By: /s/ Jay D. Waxenberg
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JAY D. WAXENBERG, as
Trustee and not
individually
/s/ Debra Aisenberg /s/Leonard Joseph Feinstein
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LEONARD JOSEPH FEINSTEIN
/s/ Debra Aisenberg /s/Susan Feinstein
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SUSAN FEINSTEIN
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