Legion Partners Asset Management SC 13DBED BATH & BEYOND / Legion Partners Asset Management ownership change

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

§ 240.13d-2(a)

(Amendment No.  )¹

Bed Bath & Beyond Inc.

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

075896100

(CUSIP Number)

CHRISTOPHER S. KIPER

LEGION PARTNERS ASSET MANAGEMENT, LLC

12121 Wilshire Blvd, Suite 1240

Los Angeles, CA 90025

(424) 253-1773

STEVE WOLOSKY, ESQ.

ELIZABETH GONZALEZ-SUSSMAN, ESQ.

OLSHAN FROME WOLOSKY LLP

1325 Avenue of the Americas

New York, New York 10019

(212) 451-2300

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

March 27, 2020

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box¨.

Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See§ 240.13d-7 for other parties to whom copies are to be sent. 

1              The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however,see theNotes).

* Includes 898,000 Shares underling long call options currently exercisable

* Includes 52,000 Shares underling long call options currently exercisable

* Includes 200,000 Shares underling long call options currently exercisable

* Includes 1,150,000 Shares underling long call options currently exercisable

* Includes 1,150,000 Shares underling long call options currently exercisable

* Includes 1,150,000 Shares underling long call options currently exercisable

* Includes 1,150,000 Shares underling long call options currently exercisable

* Includes 1,150,000 Shares underling long call options currently exercisable

The following constitutes the Schedule 13D filed by the undersigned (the “Schedule 13D”).

This statement relates to the Common Stock, $0.01 par value per share (the “Shares”), of Bed Bath & Beyond Inc., a New York corporation (the “Issuer”). The address of the principal executive offices of the Issuer is 650 Liberty Avenue, Union, New Jersey 07083.

(a)       This statement is filed by:

Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.” Each of the Reporting Persons is party to that certain Joint Filing Agreement, as further described in Item 6. Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.

(b)       The address of the principal office of each of the Reporting Persons is 12121 Wilshire Blvd, Suite 1240, Los Angeles, California 90025.

(c)       The principal business of each of Legion Partners I, Legion Partners II and Legion Partners Special XII is investing in securities. The principal business of Legion LLC is serving as the general partner of each of Legion Partners I, Legion Partners II, Legion Partners Special XII and certain other affiliated funds. The principal business of Legion Partners Asset Management is managing investments in securities and serving as the investment advisor of each of Legion Partners I, Legion Partners II, Legion Partners Special XII and certain other affiliated funds. The principal business of Legion Partners Holdings is serving as the sole member of Legion Partners Asset Management and the sole member of Legion LLC. The principal occupation of each of Messrs. Kiper and White is serving as a managing director of Legion Partners Asset Management and a managing member of Legion Partners Holdings.

(d)       No Reporting Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e)       No Reporting Person has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f)       Each of Legion Partners I, Legion Partners II, Legion Partners Special XII, Legion LLC, Legion Partners Asset Management and Legion Partners Holdings are organized under the laws of the State of Delaware. Messrs. Kiper and White are citizens of the United States of America.

The securities of the Issuer purchased by each of Legion Partners I, Legion Partners II, Legion Partners Special XII and Legion Partners Holdings were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted in Schedule A, which is incorporated herein by reference.

The aggregate purchase price of the 4,022,977 Shares owned directly by Legion Partners I is approximately $52,001,863, including brokerage commissions. The aggregate purchase price of the 898,000 Shares underlying certain call options owned directly by Legion Partners I is approximately $2,026,679, including brokerage commissions. The aggregate purchase price of the 204,719 Shares owned directly by Legion Partners II is approximately $2,939,693, including brokerage commissions. The aggregate purchase price of the 52,000 Shares underlying certain call options owned directly by Legion Partners II is approximately $117,358, including brokerage commissions. The aggregate purchase price of the 1,491,666 Shares owned directly by Legion Partners Special XII is approximately $17,400,839, including brokerage commissions. The aggregate purchase price of the 200,000 Shares underlying certain call options owned directly by Legion Partners Special XII is approximately $451,376, including brokerage commissions. The aggregate purchase price of the 200 Shares owned directly by Legion Partners Holdings is approximately $2,967, including brokerage commissions.

The Reporting Persons purchased the securities of the Issuer based on the Reporting Persons’ belief that such securities, when purchased, were undervalued and represented an attractive investment opportunity. Depending upon overall market conditions, other investment opportunities available to the Reporting Persons, and the availability of securities of the Issuer at prices that would make the purchase or sale of such securities desirable, the Reporting Persons may endeavor to increase or decrease their position in the Issuer through, among other things, the purchase or sale of securities of the Issuer on the open market or in private transactions or otherwise, on such terms and at such times as the Reporting Persons may deem advisable.

On May 28, 2019, the Reporting Persons, together with Macellum Home Fund, LP, Macellum Management, LP, Macellum Advisors GP, LLC, Jonathan Duskin, Ancora Catalyst Institutional, LP, Ancora Catalyst, LP, Merlin Partners Institutional, LP, Ancora Merlin, LP, Ancora Advisors, LLC and Frederick DiSanto (collectively, the “Investor Group”) entered into a cooperation and support agreement with the Issuer (the “Cooperation Agreement”). Subsequent to the entry of the Cooperation Agreement, the Investor Group disbanded and ceased filing as a group for purposes of Section 13(d) under the Securities Exchange Act of 1934, as amended.

Pursuant to the Cooperation Agreement, the Issuer agreed to increase the size of its Board of Directors (the “Board”) from nine (9) to thirteen (13) and to appoint each of John E. Fleming, Sue E. Gove, Jeffrey A. Kirwan and Joshua E. Schechter (the “New Directors”) to fill the vacancies created as a result of such expansion with terms expiring at the Issuer’s 2019 annual meeting of shareholders (the “2019 Annual Meeting”). The Issuer also agreed to appoint two (2) of the New Directors selected by the Board as new members of the Business Transformation and Strategy Review Committee of the Board and appoint two (2) of the New Directors selected by the Board as new members of the CEO Search Committee of the Board.

The Cooperation Agreement provided that while the Standstill Period (as defined below) is in effect, at the 2019 Annual Meeting and 2020 annual meeting of shareholders (the “2020 Annual Meeting”), the Board shall nominate each New Director as a candidate for election to the Board to serve until the following annual meeting of shareholders, respectively.

The Cooperation Agreement further provides that during the Standstill Period, if a New Director is unable to serve as an independent director for any reason (other than on account of failure to be elected at the 2019 Annual Meeting or 2020 Annual Meeting or for other specified circumstances), and the Reporting Persons continues to beneficially own at least 1.75% of the outstanding Shares and the Investor Group continues to beneficially own at least 2.5% of the outstanding Shares, the Reporting Persons and the Issuer shall work together in good faith in order to identify a highly qualified replacement independent director candidate.

The terms of the Cooperation Agreement further provide that the Reporting Persons are subject to customary standstill obligations and mutual non-disparagement provisions with the Company until thirty (30) days prior to the deadline for the submission of shareholder nominations of directors for the 2021 annual meeting of shareholders (the “Standstill Period”), or such later date as may be agreed by both the Issuer and the Investor Group. The standstill provisions restrict the Reporting Persons from, among other things, (a) acquiring beneficial ownership, directly or indirectly, in any securities of the Issuer (or any rights decoupled from such securities) that would result in the Investor Group owning, controlling or otherwise having any beneficial ownership interest in more than 9.9% of the shares of the Issuer’s outstanding common stock; (b) taking any action in support of or making any proposal or request that constitutes (1) advising, controlling, changing or influencing the Board or management of the Company, (2) any change in the capitalization, stock repurchase programs and practices, or dividend policy of the Company, or (3) any other change in the Company’s management, business, or corporate structure; (c) seeking or taking any other action with respect to the appointment, election or removal of any directors; or (d) seeking any extraordinary transactions, as further described in the Cooperation Agreement.

The Cooperation Agreement, however, does not prevent the Reporting Persons from (A) communicating privately with the Board or any executive officer or director of the Company, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications; (B) privately communicating to any of their potential investors or investors publicly available factual information regarding the Company consistent with prior practice; and (C) privately communicating to any shareholders of the Company about factual matters concerning the Company in a manner that otherwise does not violate this Agreement.

During the Standstill Period, the Reporting Persons have agreed to vote in a manner consistent with the recommendation of the Board, subject to certain exceptions specified in the Cooperation Agreement.

The foregoing description of the Cooperation Agreement is qualified in its entirety by reference to the full text of the Cooperation Agreement, which is referenced as Exhibit 99.1 hereto and is incorporated herein by reference.

No Reporting Person has any present plan or proposal which would relate to or result in any of the matters set forth in subparagraphs (a) - (j) of Item 4 of Schedule 13D except as set forth herein or such as would occur upon or in connection with completion of, or following, any of the actions discussed herein. The Reporting Persons intend to review their investment in the Issuer on a continuing basis.

Subject to the terms and conditions of the Cooperation Agreement, depending on various factors including, without limitation, the Issuer’s financial position and investment strategy, the price levels of the securities of the Issuer, conditions in the securities markets and general economic and industry conditions, the Reporting Persons may in the future take such actions with respect to their investment in the Issuer as they deem appropriate including, without limitation, privately engaging in communications with management and the Board, privately engaging in discussions with shareholders of the Issuer and others about the Issuer and the Reporting Persons’ investment, purchasing additional securities of the Issuer, selling some or all of such securities, entering into financial instruments or other agreements that increase or decrease the Reporting Persons’ economic or beneficial exposure with respect to their investment in the Issuer, engaging in short selling of or any hedging or similar transaction with respect to the securities of the Issuer, including swaps and other derivative instruments, or changing their intention with respect to any and all matters referred to in Item 4.

The aggregate percentage of Shares reported owned by each person named herein is based upon 126,960,648 Shares outstanding as of November 30, 2019 as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on January 9, 2020.

Percentage: Approximately 3.88%

Percentage: Less than 1%

Percentage: Approximately 1.33%

Percentage: Approximately 5.41%

Percentage: Approximately 5.41%

Percentage: Approximately 5.41%

Percentage: Approximately 5.41%

The filing of this Schedule 13D shall not be deemed an admission that the Reporting Persons are, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, the beneficial owners of any securities of the Issuer that he or it does not directly own. Each of the Reporting Persons specifically disclaims beneficial ownership of the securities reported herein that he or it does not directly own.

Each of Legion Partners I, Legion Partners II and Legion Partners Special XII purchased in the over the counter market American-style call options referencing an aggregate of 898,000 Shares, 52,000 Shares and 200,000 Shares, respectively, which are currently exercisable, have an exercise price of $12.50 per Share and expire on January 15, 2021.

On April 2, 2020, the Reporting Persons entered into a Joint Filing Agreement in which the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to securities of the Issuer, to the extent required by applicable law. The Joint Filing Agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.

Other than as described herein, there are no contracts, arrangements, understandings or relationships among the Reporting Persons, or between the Reporting Persons and any other person, with respect to the securities of the Issuer.

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: April 2, 2020

SCHEDULE A

Transactions in the Shares During the Past Sixty Days

LEGION PARTNERS, L.P. I

LEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. XII