On May 10, 2019, Bed Bath & Beyond Inc. issued the following press release:
Bed Bath & Beyond Inc. Comments on Activist Groups Reduced Slate of Candidates and Lawsuit
UNION, N.J., May
10, 2019
Bed Bath & Beyond Inc. (NASDAQ: BBBY) today issued the following statement in response to
the decision by Legion Partners Asset Management (Legion), Macellum Advisors GP (Macellum) and Ancora Advisors (Ancora) (collectively the Activist Group) to reduce its slate of nominees to stand for
election at the Companys 2019 Annual Meeting of Shareholders from 16 to 10, and the Activist Groups subsequently filed complaint in the United States District Court for the Southern District of New York against Bed Bath & Beyond
and its directors:
As part of our effort to constructively engage with the Activist Group, we have been asking for their input on our
business plan and governance, including inviting them to participate in our Board transformation, and continually asking them to disclose who they actually intended to nominate to the Board. After consistently refusing to engage in good faith on
these matters, the Activist Group has now finally disclosed who they intend to nominate, and have reduced their
16-person
list for our
10-person
Board to 10 nominees.
Regarding the complaint filed by the Activist Group with respect to the double-trigger
change-of-control
provision in the Companys Indenture, the Company has never said that it would not approve the Activist Groups candidates once they were finally named, but rather stated that the
Board was considering the request and would act in a manner consistent with the Companys obligations under the Indenture.
The
Company has repeatedly asked the Activist Group to allow the Board or a committee of the Board to interview their candidates to seek to ensure that any Board action would be consistent with the Boards fiduciary duty to its shareholders and the
Companys obligations under the Indenture. The Activist Group has refused to cooperate and has been unwilling to make their nominees available to be interviewed. To be clear, the Activist Group is asking the Board to take actions that may
expose the Company and its shareholders to significant financial and operational risk.
We continue to request that the Activist Group
allow the Board, which as of May 1, 2019, includes five new independent directors, to interview their nominees for this purpose. If the Activist Group continues to refuse to let us interview their 10 nominees, the Board will be compelled to
assess each of the nominees based solely on information that is publicly available and consistent with the Companys obligations under the Indenture.
Bed Bath & Beyond has attempted to settle with the Activist Group on several occasions and we remain ready and willing to engage
constructively with the Activist Group to reach a resolution.
To avoid further misinformation by the Activist Group on this subject and to highlight the
disingenuous nature of the Activist Groups allegations included in its complaint, the Company has included the full text of the letter that the Companys legal counsel, Wachtell, Lipton, Rosen & Katz, sent to the Activist
Groups counsel only three days ago seeking a consensual resolution to this matter. Of note, the Activist Group did not respond to this letter but instead reduced its slate of candidates by six and filed a complaint.
May 7, 2019
Elizabeth
Gonzalez-Sussman, Esq.
Olshan Frome Wolosky, LLP
1325 Avenue of the Americas
New
York, New York 10019