**Exhibit10.34**

 

**BERTUCCI’S****CORPORATION EXECUTIVE SAVINGS AND INVESTMENT PLAN**

 

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**Table ofContents**

 

**ARTICLE ONE—DEFINITIONS**

 

1.1 Account 1.2 Administrator 1.3 Beneficiary 1.4 Code 1.5 Compensation 1.6 Effective Date 1.7 Employee 1.8 Employer 1.9 Employment Date 1.10 Normal Retirement Date 1.11 Participant 1.12 Plan 1.13 Plan Year 1.14 Trust 1.15 Trustee 1.16 Valuation Date 1.17 Year of Service

 

**ARTICLE TWO—PLAN PARTICIPATION**

 

2.1Participation 2.2 Termination of Participation

 

**ARTICLE THREE—COMPENSATION DEFERRALS ANDEMPLOYER MATCHING CONTRIBUTIONS**

 

3.1Compensation Deferrals 3.2 Employer Matching Contributions 3.3 Timing of Contributions

 

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**ARTICLE FOUR—ACCOUNTING RULES**

 

4.1 Investment of Accounts and Accounting Rules

 

**ARTICLE FIVE—VESTING, RETIREMENT ANDDISABILITY BENEFITS**

 

*5.*1 Vesting 5.2 Normal Retirement *5.3*Permanent and TotalDisability

 

**ARTICLE SIX—MANNER AND TIME OF DISTRIBUTINGBENEFITS**

 

6.1 Manner of Payment 6.2 Time of Commencement of Benefit Payments 6.3 Furnishing Information 6.4 Death Benefit *6.5*Designation of Beneficiary 6.6 Time and Mode of Distributing Death Benefits

 

**ARTICLE SEVEN—ADMINISTRATION OF THE PLAN**

 

7.1 Plan Administration 7.2 Claims Procedure

 

**ARTICLE EIGHT—AMENDMENT AND TERMINATION**

 

8.1 Amendment 8.2 Termination of the Plan

 

**ARTICLE NINE—UNFORESEEABLE EMERGENCIES**

 

9.1 Unforeseeable Emergencies

 

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**ARTICLE TEN—MISCELLANEOUS PROVISIONS**

 

10.1 Benefits Unfunded 10.2 ERISA Compliance 10.3 Plan Does Not Affect Employment 10.4 Successor to the Employer 10.5 Benefits not Assignable 10.6 Source of Payments 10.7 Distribution to Legally Incapacitated Person 10.8 Construction 10.9 Governing Documents 10.10 Governing Law 10.11 Headings 10.12 Counterparts

 

**SIGNATURE PAGE**

 

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**BERTUCCI’S****CORPORATION EXECUTIVE SAVINGS AND INVESTMENT PLAN**

 

WHEREAS, Bertucci’s Corporation (hereinafterreferred to as the “Employer”) adopted the NE Restaurant Company, Inc.Executive Savings and Investment Plan, an unfunded, nonqualified deferredcompensation plan for the benefit of a select group of its management or highlycompensated employees, effective as of December 21, 1993; and

 

WHEREAS, Section 10.7 of said plan provides that the Employer may amendthe plan; and

 

WHEREAS, the name of the NE Restaurant Company, Inc. Executive Savingsand Investment Plan has been changed to the Bertucci’sCorporation Executive Savings and Investment Plan (hereinafter referred to asthe “Plan”), effective as of January 1, 2005;and

 

WHEREAS, it is intended that the Plan is to be for the exclusivebenefit of the Participants and their Beneficiaries;

 

NOW, THEREFORE, the Plan is hereby amended by restating the Plan in itsentirety as follows:

 

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**ARTICLE ONE—DEFINITIONS**

 

For purposes of the Plan, unless the context or an alternativedefinition specified within another Article provides otherwise, the followingwords and phrases shall have the definitions provided:

 

1.1**“ACCOUNT”**shall mean the individualbookkeeping accounts maintained for a Participant under the Plan which shallrecord (a) the amounts of Compensation deferred to the Plan pursuant to theParticipant’s election in accordance with Section 3.1, if any, (b) theParticipant’s allocations of Employer matching contributions pursuant toSection 3.2 and (c) the allocation of investment experience.

 

1.2**“ADMINISTRATOR”**shall mean the Plan Administrator appointed from time to time inaccordance with the provisions of Section 7.1. “Plan Administrator” shall meanthe committee consisting of those persons then holding the corporate office ofVice President of Human Resources, Vice President-Finance and Senior VicePresident, if any person holds such office in the future, but only for suchtime that they are in office. The duties of the Plan Administrator arespecified in Section 7.1.

 

1.3**“BENEFICIARY”**shall mean any person, trust,organization. or estate entitled to receive paymentunder the terms of the Plan upon the death of a Participant.

 

1.4**“CODE”**shall mean the Internal Revenue Codeof 1986, as amended from time to time.

 

1.5**“COMPENSATION”**shall mean a Participant’sBase Compensation and his Bonus Compensation. Base Compensation means thecompensation paid to a Participant for the Plan Year which is reportable onForm W-2, exclusive of bonuses. Bonus Compensation means any bonus payable to theParticipant under any incentive plan or program of the Employer.

 

1.6**“EFFECTIVE DATE.”******The Plan’s initial Effective Date wasDecember 21, 1993. The Effective Date of this restated Plan, on and after whichit supersedes the terms of the existing Plan document, is January 1, 2005,except where the provisions of the Plan shall otherwise specifically provide.The rights of any Participant who separated from the Employer’s service priorto this date shall be established under the terms of the Plan as in effect atthe time of the Participant’s separation from service, unless the Participantsubsequently returns to service with the Employer. Rights of spouses andbeneficiaries of such Participants shall also be governed by those documents.

 

1.7**“EMPLOYEE”**shall mean a highly compensatedmanager or executive of the Employer.

 

1.8**“EMPLOYER”**shall mean the Employer named as party to the Plan, and shallinclude any successor(s) thereto which adopt this Plan.

 

1.9 “**EMPLOYMENT DATE”**shallmean the first date as of which an Employee is credited with an hour of servicewith the Employer.

 

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1.10**“NORMAL RETIREMENT DATE”**shall mean aParticipant’s sixty-fifth (65th) birthday.

 

1.11**“PARTICIPANT”**shall mean any Employee whois participating in the Plan.

 

1.12**“PLAN”**shall mean this Plan as set forth herein and as it may be amendedfrom time to time.

 

1.13**“PLAN YEAR”**shall mean the12-consecutive-month period beginning January 1 and ending December 31.

 

1.14**“TRUST”**shall mean the Trust Agreemententered into between the Employer and the Trustee forming part of this Plan,together with any amendments thereto. “Trust Fund” shall mean any and allproperty held by the Trustee pursuant to the Trust Agreement, together withincome therefrom.

 

1.15**“TRUSTEE”**shall mean the Trustee orTrustees appointed by the Employer and any successors thereto. The Trusteeshall be an independent third party that may be granted corporate trust powersunder state law.

 

1.16**“VALUATION DATE”**shall mean the last day ofthe Plan Year and such other date(s) as specified by the Administrator in thesole exercise of its discretion.

 

1.17**“YEAR OF SERVICE”**shall mean, for purposesof vesting computation, the twelve (12)-consecutive-month periods commencing with the Employee’s Employment Date, andanniversaries of that date. Credit shall be given for service performed priorto the Effective Date of the Plan. 

 

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**ARTICLE TWO—PLANPARTICIPATION**

 

2.1**PARTICIPATION.**All Employees participatingin this Plan prior to the Plan’s restatement shall continue to participate,subject to the terms hereof. Each other Employee shall become a Participantunder the Plan effective as of the date on which he is designated by the PlanAdministrator to be a Participant in the Plan. For purposes of Section 3.1, anEmployee shall become a Participant under the Plan effective as of the firstday of the Plan Year for which he elects to defer a portion of his Compensationand completes a Compensation Deferral Authorization Form, provided that thePlan Administrator, in its sole discretion, determines that the Employee maymake a compensation deferral election pursuant to Section 3.1. The CompensationDeferral Authorization Form must be completed, executed and returned to thePlan Administrator prior to the first day of the Plan Year for which it isapplicable. Notwithstanding the foregoing provisions of this Section 2.1, anEmployee shall become a Participant in the Plan for purposes of Section 3.1during the first Plan Year in which the Plan Administrator determines that theEmployee may make a compensation deferral election pursuant to Section 3.1provided that the Participant’s election is made within thirty (30) days afterhis participation begins.

 

2.2**TERMINATION OF PARTICIPATION.**The Employer,in its sole discretion, may terminate an Employee’s active participation in thePlan. In the event that the Employer terminates an Employee’s activeparticipation, the Employee is no longer eligible to make compensationdeferrals pursuant to Article Three.

 

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**ARTICLETHREE—COMPENSATION DEFERRALS AND EMPLOYER MATCHING CONTRIBUTIONS**

 

3.1**COMPENSATION DEFERRALS.**

 

*(a) Elections.*The Employer, in its sole discretion, may permit aParticipant to elect in writing to defer a portion of his Compensation up to40% of his Base Compensation and up to 100% of his Bonus Compensation for anyPlan Year. The election once made for a Plan Year is irrevocable for that PlanYear. The amount of a Participant’s Compensation that is deferred in accordancewith the Participant’s election shall be withheld by the Employer from theParticipant’s Compensation on a ratable basis throughout the Plan Year and/oron a nonratable, single-sum basis. The amountdeferred on behalf of each Participant shall be contributed by the Employer tothe Trust and allocated to the Participant’s Account at the time it wouldotherwise be paid to the Participant. Notwithstanding the foregoing provisionsof this Section 3.1, a Participant may defer a portion of his Compensation forany Plan Year only if the Participant has elected in writing to defer a portionof his Compensation prior to the first day of such Plan Year or, in the case ofa Participant’s initial participation in the Plan, the first day of the monthcoincident with or next following his designation by the Employer to be a Participantin the Plan pursuant to Section 2.1.

 

(b) *Changesin Election.*A Participant may, with the consent of the Employerin its sole discretion, prospectively elect to change or revoke the amount (orpercentage) of his compensation deferral by filing a written election with theEmployer prior to January 1 of the Plan Year for which it is effective. The Participant shall be entitled to change theamount (or percentage) of his compensation deferral which change shall beeffective as of January 1, provided that the change is made in writing prior toJanuary 1. A change in election is only permitted to be made prior to January 1of the Plan Year for which it is applicable.

 

3.2**EMPLOYER MATCHING CONTRIBUTIONS.**TheEmployer shall contribute to the Plan on behalf of any Participant a matchingcontribution equal to *25%*of theParticipant’s compensation deferrals pursuant to Section 3.1 up to 6% ofCompensation (disregarding bonuses and special payments). The Employer may, inits sole discretion, make an additional contribution on behalf of any oneParticipant, or on behalf of any number of Participants, for any Plan Yearwithout making an additional contribution on behalf of other Participants.Forfeitures which arise from Employer matching contributions shall be used toreduce Employer matching contributions.

 

3.3**TIMING OF CONTRIBUTIONS.**Compensationdeferrals under Section 3.1 and Employer matching contributions under Section3.2 shall be made to the Trust as soon as administratively feasible.

 

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**ARTICLE FOUR—ACCOUNTINGRULES**

 

4.1**INVESTMENT OF ACCOUNTS AND ACCOUNTING RULES.**

 

*(a) InvestmentFunds.*The investment of Participants’ Accountsshall be made in a manner consistent with the provisions of the Trust.

 

(b) *Allocationof investment Experience.*As of each Valuation Date, theinvestment fund(s) of the Trust shall he valued at fair market value, and anyincome, loss, appreciation and depreciation (realized and unrealized), and anypaid expenses of the Trust attributable to such fund shall be apportioned amongParticipants’ Accounts based upon the value of each Account as of the precedingValuation Date. Adjustment of Accounts for investment experience, if any, shallbe deemed to be made as of the Valuation Date to which the adjustment relates,even if actually made on a later date.

 

(c) *Safeinvestment Option.*The Administrator may provide that one of theinvestment funds offers both a reasonable safety of the principal amountinvested and a reasonable rate of interest return. An investment fund composedof guaranteed interest contracts through an insurance company, a pooled fund ofshort-term bonds and notes, or a money market fund shall be deemed to meetthese standards.

 

(d) *Allocationof Employer Contributions.*Employer contributions shall beallocated to the Account of each eligible Participant as of the last day of theperiod for which the contributions are made.

 

(e) *Mannerand Time of Debiting Distributions.*For any Participant whoreceives a distribution from his Account, distribution shall be made in accordancewith the provisions dealing with the timing of commencement of benefit paymentsin Section 6.2. The distribution shall be equal to the fair market value of theParticipant’s vested Account as of the Valuation Date preceding thedistribution. 

 

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**ARTICLE FIVE—VESTING, RETIREMENT AND DISABILITY BENEFITS**

 

5.1**VESTING.** Except as otherwise provided with respect to NormalRetirement, disability, or death, and subject to the provisions of this ArticleFive, a Participant shall have a nonforfeitable(vested) right to a percentage of his Account derived from Employer matchingcontributions under Section 3.2, as follows: 

| **Years of Service** | ** ** | **Vested Percentage** | ** ** |
|--------------------------------|------------|----------------------------|------------|
| Less than 1 year               | * *   | 0                          | %          |
| 1 year but less than 2         | * *   | 25                         | %          |
| 2 years but less than 3        | * *   | 50                         | %          |
| 3 years but less than 4        | * *   | 75                         | %          |
| 4 years and thereafter         | * *   | 100                        | %          |

 

The nonvested portion of the Participant’sAccount shall be forfeited as of the later of the Participant’s termination ofemployment or the date on which the Participant receives the first payment fromhis vested Account under the Plan. The amount forfeited shall be used to reduceEmployer matching contributions, as set forth in Section 3.2.

 

5.2**NORMAL RETIREMENT. A**Participant who is inthe employment of the Employer at his Normal Retirement Date shall have a nonforfeitable interest in 100% of his Account. AParticipant who continues in employment after his Normal Retirement Date shallcontinue to participate under the Plan.

 

5.3**PERMANENT AND TOTAL DISABILITY.**If aParticipant incurs a permanent and total disability while in the employ of theEmployer, the Participant shall have a nonforfeitableinterest in 100% of his Account. Payment of his Account balance will be made atthe time and in a manner specified in Article Six, following receipt by thePlan Administrator of the Participant’s written distribution request. “Permanentand total disability” shall mean suffering from a physical or mental conditionthat, in the opinion of the Administrator and based upon appropriate medicaladvice and examination, can be expected to result in death or can be expectedto last for a continuous period of no less than 12 months and for which theParticipant is receiving income replacement benefits for a period of at leastthree months under an accident or health plan of the Employer. Receipt of aSocial Security disability award shall be deemed proof of permanent and totaldisability. 

 

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**ARTICLE SIX—MANNER AND TIME OF DISTRIBUTINGBENEFITS**

 

6.1**MANNER OF PAYMENT.**The Participant’s Account shall be distributed to the Participant (orto the Participant’s Beneficiary in the event of the Participant’s death) in asingle lump-sum payment.

 

6.2**TIME OF COMMENCEMENT OF BENEFIT PAYMENTS.**

 

*(a) Normal orLate Retirement.*Participants whose employment hasterminated shall have distribution of their Account commence within sixty (60)days following their Normal Retirement Date.

 

(b)*****Disability Retirement.*Participantswhose employment has terminated due to total and permanent disability shallhave distribution of their Account commence within sixty (60) days followingtheir termination of employment.

 

(c) *Pre-retirementTermination of Employment.*If a Participant terminatesemployment for any reason other than Normal Retirement, disability or death,distribution of his Account balance shall be made within sixty (60) daysfollowing the Participant’s termination of employment.

 

6.3**FURNISHINGINFORMATION.**Prior to the payment of any benefit under thePlan, each Participant or Beneficiary may be required to complete suchadministrative forms and furnish such proof as is deemed necessary orappropriate by the Employer and/or Administrator.

 

6.4****DEATHBENEFIT.**

 

(a) *DeathWhile an Employee.*In the event of the death of a Participantwhile in the employ of the Employer, vesting in the Participant’s Account shallbe 100%. The Account shall constitute the Participant’s death benefit to bedistributed under this Article to the Participant’s Beneficiary.

 

(b) *DeathAfter Termination of Employment.*In theevent of the death of a former Participant after termination of employment butprior to the complete distribution of his Account balance, the undistributedbalance of the Participant’s Account shall be paid to the Participant’sBeneficiary.

 

6.5 **DESIGNATION OF BENEFICIARY.**Each Participantshall file with the Administrator a designation of Beneficiary to receivepayment of death benefits payable hereunder if such Beneficiary should survivethe Participant. However, no married Participant’s designation of a Beneficiaryother than his spouse shall be effective unless the Participant’s spouse hassigned a written consent witnessed by a Plan representative or a Notary Public,which consent provides for a designation of an alternative Beneficiary. Suchdesignation of an alternative Beneficiary may not be changed unless a newconsent is signed by the Participant’s spouse. 

 

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Beneficiary designations may include primary and contingentBeneficiaries, and may be revoked or amended at any time in similar manner orform, and the most recent designation shall govern. In the absence of aneffective designation of Beneficiary, or if the Beneficiary dies beforecomplete distribution of the Participant’s benefits, all amounts shall be paidto the surviving spouse of the Participant, if living at least 30 daysfollowing the Participant’s death, or otherwise equally to the Participant’sthen-surviving children, whether by marriage or adopted, and the survivingissue of any deceased children, per stirpes, or, ifnone, to the Participant’s estate. Notification to Participants of the deathbenefits under the Plan and the method of designating a Beneficiary shall begiven at the time and in the manner provided by regulations and rulings underthe Code.

 

6.6**TIME AND MODE OF DISTRIBUTING DEATH BENEFITS.**Inthe event of the death of the Participant, the Participant’s Account shall bedistributed to the Participant’s Beneficiary in a single lump-sum paymentwithin sixty (60) days following the Participant’s death. 

 

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**ARTICLE SEVEN—ADMINISTRATION OF THE PLAN**

 

7.1****PLANADMINISTRATION.**Bertucci’s Corporationshall be the Plan Administrator, hereinbefore and hereinafter called theAdministrator, and named fiduciary of the Plan, unless the Employer shalldesignate a person or committee of persons to be the Administrator and namedfiduciary. The administration of the Plan, as provided herein, including adetermination of the payment of benefits to Participants and theirBeneficiaries, shall be the responsibility of the Administrator. In the eventmore than one party shall act as Administrator, all actions shall be made bymajority decisions. In the administration of the Plan, the Administrator may(a) employ agents to carry out nonfiduciaryresponsibilities (other than Trustee responsibilities) and (b) consult withcounsel, who may be counsel to the Employer.

 

The Administrator will administer the Plan in accordance withestablished policies, interpretations, practices, and procedures relating tothe Plan and in accordance with the requirements of the Employee RetirementIncome Security Act of 1974, as amended, and otherapplicable laws. The Administrator shall have discretion (a) to interpret theterms of the Plan, (b) to determine factual questions that arise in the courseof administering the Plan, (c) to adopt rules and regulations regarding theadministration of the Plan, (d) to determine the conditions under whichbenefits become payable under the Plan and (e) to make any other determinationsthat the Administrator believes are necessary and advisable for theadministration of the Plan. Any determination made by the Administrator shallbe final, conclusive and binding on all parties. The Administrator may delegateall or any portion of its authority to any person or entity.

 

The expenses of administering the Plan and the compensation of allemployees, agents, or counsel of the Administrator, including the accountingfees, the recordkeeper’s fees, and the fees of anybenefit consulting firm, shall be paid by the Plan, or shall be paid by theEmployer if the Employer so elects. No compensation may be paid by the Plan tofull-time Employees of the Employer.

 

The Administrator shall obtain from the Trustee, not less often thanannually, a report with respect to the value of the assets held in the TrustFund, in such form as is required by the Administrator.

 

‘The Administrator shall administer the Plan and adopt such rules andregulations as, in the opinion of the Administrator, are necessary or advisableto implement and administer the Plan and to transact its business.

 

7.2**CLAIMS PROCEDURE.**Pursuant to proceduresestablished by the Administrator, adequate notice in writing shall be providedto any Participant or Beneficiary whose claim for benefits under the Plan hasbeen denied within 90 days of receipt of such claim; provided, however, that anextension of time not exceeding 90 days will be available if specialcircumstances require an extension of time for processing the claim. If so,notice of such extension, indicating what special circumstances exist and thedate by which a final decision is expected to be rendered, will be furnished tothe claimant before the initial 90-day period expires. The notice of denialshall set forth the specific reason for such denial, shall be written in amanner calculated to be understood by the claimant, and shall advise of theright to administrative review.

 

Within 90 days after receipt of such notice of denial, the claimant mayrequest, by mailing or

 

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delivery ofwritten notice to the Plan, a review by the Administrator of the decisiondenying the claim. Such petition for review shall state in clear and conciseterms the reason or reasons for disputing the denial and shall be accompaniedby any pertinent documentary material not already furnished. The review willtake into account all comments, documents, records and other informationsubmitted relating to the claim, without regard to whether such information wassubmitted or considered in the initial benefit determination.

 

After such review, the Administrator will determine whether the denialof the claim was correct and will notify the claimant in writing of itsdetermination within a reasonable period of time, but not later than 60 daysafter the receipt of your request for review by the Administrator; provided,however, that an extension of time not exceeding 60 days will be available ifspecial circumstances require an extension of time for processing the appeal.If so, notice of such extension, indicating what special circumstances existand the date by which a final decision is expected to be rendered, will befurnished to the claimant before the initial 60-day period expires.

 

The claimant will be advised of the Administrator’s decision inwriting. The notice of denial shall set forth the specific reason for suchdenial and shall be written in a manner calculated to be understood by theclaimant.

 

If the claimant fails to request review within the 90-day period, itshall be conclusively determined for all purposes of this Plan that the denialof such claim by the Administrator is correct.

 

If the Administrator’s determination is favorable to the claimant, itshall be binding and conclusive. If such determination is adverse to theclaimant, it shall be binding and conclusive unless the claimant notifies theAdministrator within 90 days after the mailing or delivery by the Administratorof its determination, that the claimant intends to institute legal proceedingschallenging the determination of the Administrator, and the claimant actuallyinstitutes such legal proceeding within 180 days after such mailing ordelivery.

 

The denial of an application or claim as to which the right of reviewhas been waived or the decision of the Administrator with respect to a petitionfor review, shall be final and binding upon all parties, subject only tojudicial review.

 

7.3**TRUST AGREEMENT AND DESIGNATION OF TRUSTEE.** The Employer shall create and enterinto a Trust Agreement with the Trustee as designated therein. The Trust, andany assets held by the Trust to assist the Employer in meeting its obligationsunder this Plan, shall conform to the terms of the model trust, as described inIRS Revenue Procedure 92-64.

 

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**ARTICLEEIGHT—AMENDMENT AND TERMINATION**

 

8.1**AMENDMENT.** The Employer shall have the right to amend,alter, or modify the Plan at any time, or from time to time, in whole or inpart. Any such amendment shall become effective under its terms upon adoptionby the Employer, unless otherwise set forth in the amendment. However, noamendment affecting the duties, powers or responsibilities of the Trustee maybe made without the written consent of the Trustee. Except as provided below,no amendment shall be made to the Plan which would deprive any Participant ofany nonforfeitable portion of his Account.Notwithstanding any provision of the Plan to the contrary, the Employer mayamend the Plan at any time and in any manner it deems appropriate to complywith the law or regulations applicable to deferred compensation plans.

 

8.2**TERMINATION OF THE PLAN.**The Employerreserves the right at any time and in its sole discretion to terminate the Plan. The Employer shalldirect the Trustee to distribute the Trust Fund in accordance with the Plan’s distribution provisions to theParticipants and their Beneficiaries, each Participant or Beneficiary receivinga portion of the Trust Fund equal to the value of his Account as of the date ofdistribution. These distributions may be implemented by the continuance of theTrust and the distribution of the Participants’ Accounts shall be made in suchtime and such manner as though the Plan had not terminated, or by any otherappropriate method. Upon distribution of the Trust Fund, the Trustee shall bedischarged from all obligations under the Trust and no Participant shall haveany further right or claim therein.

 

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**ARTICLE NINE—UNFORESEEABLEEMERGENCIES**

 

9.1**UNFORESEEABLE EMERGENCIES.**TheAdministrator may distribute to any Participant or his Beneficiary in any onePlan Year up to 100% of his Account, valued as of the preceding Valuation Date,in the case of an unforseeable emergency.

 

For purposes of this Section 9.1, an unforeseeable emergency is definedas severe financial hardship to the Participant resulting from a sudden andunexpected illness or accident of the Participant or of a dependent (as definedin Section 1 *5*2(a) of the Code)of the Participant, loss of the Participant’s property due to casualty, orother similar extraordinary and unforesecablecircumstances arising as a result of events beyond the control of theParticipant. Distribution shall not be made to the extent that such hardship isor may be relieved through reimbursement or compensation by insurance orotherwise, by liquidation of the Participant’s assets to the extent theliquidation of such assets would not itself cause severe financial hardship, orby cessation of salary deferrals under the Plan. Such distribution shall onlybe made to the extent reasonably needed to satisfy the emergency need.

 

The Administrator shall require that requests for hardshipdistributions be made under procedures which include the Participant’s signedstatement of the facts causing the unforeseeable emergency, the amount of thefinancial need and any other information required to ascertain the facts.

 

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**ARTICLE TEN—MISCELLANEOUSPROVISIONS**

 

10.1**BENEFITS UNFUNDED**. It is the intention of the parties thatthis Plan is an unfunded deferred compensation plan and that the benefitspayable hereunder are not to be included in the gross income of the Participantuntil the taxable year in which the benefits are actually received or otherwisemade available, whichever occurs earlier. The Participant has the status of anunsecured general creditor of the Employer and the Plan constitutes a merepromise by the Employer to make benefit payments in the future. In the eventthere is an amendment to the Code or the Department of Treasury issuesregulations which would require the Participant to include the benefits payablehereunder in gross income before they are actually received or otherwise madeavailable, the Employer, with the consent of the Participant, shall revise andamend this Plan and/or adopt another method of retirement compensation for theParticipant which is consistent with the deferral purposes contained in thisPlan.

 

10.2**ERISA****COMPLIANCE.**This Plan is being establishedby the Employer with the express intention that the Plan constitutes anunfunded pension benefit plan maintained by the Employer for the purpose ofproviding benefits for a select group of management or highly compensatedemployees (“unfunded top-hat plan”) under the Employee Retirement IncomeSecurity Act of 1974, as amended (“ERISA”).Accordingly, this Plan is being treated as a plan exempt from theparticipation, vesting, funding and fiduciary requirements of Title I of ERISA, but subject to the reporting and disclosurerequirements. The Employer intends to comply with the reporting and disclosurerequirements by filing a notice with the United States Department of Labor,Office of Pension and Welfare Benefit Programs, pursuant to 29 C.F.R. Section 2520.104-23(b). This notice states that thePlan information will be available to the Secretary of Labor upon request.

 

In the event there is an amendment to ERISAor the Department of Labor issues revised regulations governing the applicationof Title I of ERISA to unfunded top-hat plans andsuch amendment or regulations require the Plan to comply with ERISA’s participation, vesting, funding and/or fiduciaryrequirements, the Employer reserves the right to revise and amend this Plan orto adopt another method of retirement compensation consistent with the unfundednature of this Plan.

 

10.3**PLAN DOES NOT AFFECT EMPLOYMENT.**Neitherthe creation of this Plan nor any amendment thereto nor the creation of anyfund nor the payment of benefits hereunder shall be construed as giving anylegal or equitable right to any Employee or Participant against the Employer,its officers or Employees or against the Trustee, and all liabilities underthis Plan shall be satisfied, if at all, only out of the Trust Fund held by theTrustee. Participation in the Plan shall not give any Participant any right tobe retained in the employ of the Employer, and the Employer hereby expresslyretains the right to hire and discharge any Employee at any time with orwithout cause, as if the Plan had not been adopted, and any such dischargedParticipant shall have only such rights or interests in the Trust Fund as maybe specified herein.

 

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10.4**SUCCESSOR TO THE EMPLOYER.**In the event ofthe merger, consolidation, reorganization or sale of assets of the Employer,under circumstances in which a successor person, firm, or corporation shallcarry on all or a substantial part of the business of the Employer, and suchsuccessor shall employ a substantial number of Employees of the Employer andshall elect to carry on the provisions of the Plan, such successor shall besubstituted for the Employer under the terms and provisions of the Plan uponthe filing in writing with the Trustee of its election to do so.

 

10.5**BENEFITS NOT ASSIGNABLE.**The benefits underthis Plan are not subject in any manner to anticipation, alienation, sale,transfer, assignment, pledge, encumbrance, attachment or garnishment bycreditors of the Participant or the Participant’s Beneficiary, or liable forthe debts, contracts, liabilities, engagements or torts of the Participant orhis Beneficiary.

 

10.6**SOURCE OF PAYMENTS.**Any funds which may becontributed and invested under the provisions of this Plan shall continue to besubject to the unsecured general creditors of the Employer. lothe extent that any person acquires a right to receive payments from theEmployer under this Plan, such right shall be no greater than the right of anyunsecured general creditor of the Employer. Notwithstanding the foregoing, thisSection 10.6 is subject to the provisions of the Trust.

 

10.7**DISTRIBUTION TO LEGALLY INCAPACITATED PERSON.**Inthe event any benefit is payable to a minor or to a person deemed to beincompetent or to a person otherwise under legal disability, or who is by solereason of advanced age, illness, or other physical or mental incapacityincapable of handling the disposition of his property, the Administrator maydirect the Trustee to apply all or any portion of such benefit directly to thecare, comfort, maintenance, support, education or use of such person or to payor distribute the whole or any part of such benefit to (a) the spouse of suchperson, (b) the parent of such person, (c) the guardian, committee, or otherlegal representative, wherever appointed, of such person, (d) the person with whomsuch person shall reside, (e) any other person having the care and control ofsuch person, or (f) such person. The receipt of any such payment ordistribution is a complete discharge of liability for Plan obligations.

 

10.8**CONSTRUCTION.**Wherever appropriate, the useof the masculine gender shall be extended to include the feminine and/or neuteror vice versa; and the singular form of words shall be extended to include theplural; and the plural shall be restricted to mean the singular.

 

10.9**GOVERNING DOCUMENTS.**A Participant’s rightsshall be determined under the terms of the Plan as in effect at the Participant’sdate of separation from employment with the Employer.

 

10.10 **GOVERNING LAW.**Theprovisions of this Plan shall be construed under the laws of the state of the situs of the Plan, except to the extent such laws arepreempted by Federal law.

 

10.11 **HEADINGS.**The Article headings and Sectionnumbers are included solely for ease of reference. If there is any conflictbetween such headings or numbers and the text of the Plan, the text shallcontrol.

 

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10.12**COUNTERPARTS.**This Plan may be executed inany number of counterparts, each of which shall he deemed an original; saidcounterparts shall constitute but one and the same instrument, which may be sufficientlyevidenced by any one counterpart.

 

INWITNESS WHEREOF, the Employer, by its duly authorized officer, has caused thisPlan to be executed this 20th day of December, 2004.

 
|   | **BERTUCCI’S****CORPORATION** |
|--------|------------------------------------|
|   |                               |
|   | By                                 | /s/  David G. Lloyd |   |
|   | Authorized  Officer                |

 

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