As part of our effort to constructively engage with the
Regarding the complaint filed by the
The Company has repeatedly asked the
We continue to request that the
To avoid further misinformation by the
1325 Avenue of the
The purpose of this letter is to propose a resolution to one disagreement between your clients and our client,
As we have consistently stated, the Company is considering the Requested Approval and continues to believe that the appropriate next step is for the Board (or a Committee of the Board) to interview your clients' nominees. To date your clients have been unwilling to make their nominees available for interview (absent an up-front agreement by the Company to cede control of the Company to your clients). Now that the Company has reconstituted the Board, we again request that your clients inform the Company whether they are nominating all 16 individuals they purported to nominate or, if not, who they are in fact intending to nominate for the Board, and make their nominees available for interviews so that the Board can properly consider the Requested Approval. These interviews are needed because the information that your clients have already provided and the business plans proposed by your clients, as well as certain information that the Company has uncovered that was not disclosed by your clients, and the manner in which your clients have been conducting their campaign for control of the Company (including making numerous untrue and misleading statements) raise questions as to the impact that an assumption of control of the Company by your clients and their nominees could have on the Company and its ability to meet its legal obligations, including under the Indenture. While it is not clear that the prior case law on this issue, involving
If your clients are not willing to allow their nominees to be interviewed, we request that they agree to indemnify the Company and the Board against any risks and costs resulting from the Requested Approval. Based on your clients' public statements on this subject, they appear to be extremely confident that the Board may grant the Requested Approval (which confidence we presume must be based on your opinion), so such an indemnity should not be problematic for them.
We look forward to hearing back from you as to whether your clients are willing to make their nominees available for interviews, or whether your clients are willing to indemnify the Company and the Board against any risks and costs resulting from the Requested Approval.
As always, the Company reserves all of its rights.
Allan N. Rauch, Bed Bath & Beyond Inc.
Sabastian V. Niles, Wachtell, Lipton, Rosen & Katz
Christopher S. Kiper, Legion Partners Holdings, LLC
Steve Wolosky, Esq., Olshan Frome Wolosky, LLP
About the Company
This press release may contain forward-looking statements. Many of these forward-looking statements can be identified by use of words such as may, will, expect, anticipate, approximate, estimate, assume, continue, model, project, plan, goal, and similar words and phrases. The Company's actual results and future financial condition may differ materially from those expressed in any such forward-looking statements as a result of many factors. Such factors include, without limitation: general economic conditions including the housing market, a challenging overall macroeconomic environment and related changes in the retailing environment; consumer preferences, spending habits and adoption of new technologies; demographics and other macroeconomic factors that may impact the level of spending for the types of merchandise sold by the Company; civil disturbances and terrorist acts; unusual weather patterns and natural disasters; competition from existing and potential competitors across all channels; pricing pressures; liquidity; the ability to achieve anticipated cost savings, and to not exceed anticipated costs, associated with organizational changes and investments; the ability to attract and retain qualified employees in all areas of the organization; the cost of labor, merchandise and other costs and expenses; potential supply chain disruption due to trade restrictions, political instability, labor disturbances, product recalls, financial or operational instability of suppliers or carriers, and other items; the ability to find suitable locations at acceptable occupancy costs and other terms to support the Company's plans for new stores; the ability to establish and profitably maintain the appropriate mix of digital and physical presence in the markets it serves; the ability to assess and implement technologies in support of the Company's development of its omnichannel capabilities; uncertainty in financial markets; volatility in the price of the Company's common stock and its effect, and the effect of other factors, on the Company's capital allocation strategy; the impact of goodwill and intangible asset impairments; disruptions to the Company's information technology systems including but not limited to security breaches of systems protecting consumer and employee information or other types of cybercrimes or cybersecurity attacks; reputational risk arising from challenges to the Company's or a third party product or service supplier's compliance with various laws, regulations or standards, including those related to labor, health, safety, privacy or the environment; reputational risk arising from third-party merchandise or service vendor performance in direct home delivery or assembly of product for customers; changes to statutory, regulatory and legal requirements, including without limitation proposed changes affecting international trade; changes to, or new, tax laws or interpretation of existing tax laws; new, or developments in existing, litigation, claims or assessments; changes to, or new, accounting standards; foreign currency exchange rate fluctuations; the integration of acquired businesses and potential continuing uncertainty arising in connection the announced intention by a shareholder to seek control of our Board of Directors. The Company does not undertake any obligation to update its forward-looking statements.
Participants in the Solicitation
The Company, its directors and certain of its executive officers will be deemed participants in the solicitation of proxies from shareholders in respect of the 2019 Annual Meeting. Information regarding the names of the Company's directors and executive officers and their respective interests in the Company by security holdings or otherwise is set forth in the Company's Annual Report on Form 10-K for the fiscal year ended
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