EXHIBIT 10.26
002 (NON-STANDARDIZED)
NE RESTAURANT COMPANY, INC. SAVINGS AND INVESTMENT PLAN
SUMMARY PLAN DESCRIPTION
TABLE OF CONTENTS OMITTED
I. INTRODUCTION
This is a summary of the NE Restaurant Company, Inc. Savings and
Investment Plan (the "Plan") which has recently been amended. The purpose of
the Plan is to provide retirement income for those eligible to participate by
permitting employees to make pre-tax contributions to the Plan. The effective
date of this amendment is April 29, 1999.
We prepared this Summary to comply with a legal requirement for a
"summary plan description," describing your rights and obligations as a
Participant in the Plan in language which should be easy for you to
understand.
This Plan is intended to comply with Section 404(c) of the Employee
Retirement Income Security Act of 1974 (ERISA). Under Section 404(c),
employees who make investment decisions for the Plan assets are responsible
for those investment decisions. Plan fiduciaries (including the Employer and
the Plan Trustee) may be relieved of liability for any losses which are the
result of investment decisions made by you. Also, since you make the
investment decisions, any proxies relating to any of the investment choices
will be forwarded to you for your vote.
Under the NE Restaurant Company, Inc. Savings and Investment Plan,
you are responsible for investing all Contributions made to the Plan on your
behalf.
The current investment choices are:
Scudder Cash Investment Trust
Scudder Income Fund
Scudder Pathway Series - Balanced Portfolio
Scudder Large Company Value Fund
Scudder Large Company Growth Fund
Scudder International Fund
The following information about these investment choices is provided in
the Plan materials with which you have been provided:
- investment objectives
- risk and return characteristics.
Investment instructions may be made by calling Pilot, Scudder's Voice
Response System, at 1-800-541-7705 or by any other means acceptable to the Plan
Administrator. For more information, including any of the following, please
contact Human Resources:
- Annual operating expenses and expense ratios for investment
alternatives;
- Copies of prospectuses, reports, and financial statements of
investment alternatives;
- List of assets within an investment alternative (other than mutual
funds);
- Information on the share/unit value of each investment alternative;
- Information on the performance of the investment alternatives; and
- Information on the value of shares/units in the investment
alternatives held by you.
Please remember that this is only a Summary and therefore cannot
cover all the details of the Plan or act as a substitute for the Plan
document, which contains all of the provisions of the Plan. In addition, we
may have unintentionally left out or misstated some items. If there is any
inconsistency between this Summary and the actual provisions of the Plan, the
actual provisions set forth in the Plan document will control.
If you have any questions about the Plan or about your benefits under
the Plan, please contact your Plan Administrator.
2. DEFINITIONS
Listed below are definitions for some terms that are used throughout
this Summary and the Plan. Since these words may have technical meanings
slightly different from their ordinary meanings, please refer to these
definitions when you are reading this Summary or the Plan document.
"COMPENSATION"
Compensation can have different meanings for different purposes
under the Plan.
CONTRIBUTIONS: For purposes of determining or allocating the Salary
Reduction Contributions, Employer Profit Sharing Contributions and
Employer Matching Contributions.
Compensation means NON-SAFE HARBOR ALTERNATIVE DEFINITION (I.E., W-2,
the definition of Compensation, for federal tax withholding BUT
excluding the bonuses; commissions; such other items as car allowances,
fuel reimbursement, stock options and moving expenses.
This definition of Compensation shall include a Participant's Salary
Reduction Contributions, and other amounts, which are excluded from an
Employee's gross income pursuant to Code Sections 125, 402(a)(8),
402(h)(1)(B) and 403(b).
For the purpose of determining or allocating Employer Profit Sharing
Contributions and/or Employer Matching Contributions the definition of
Compensation shall be determined by not taking into account amounts paid
during that portion of the Plan Year during which the Employee is not
eligible to participate in the Plan.
NON-DISCRIMINATION TESTING: For purposes of the various
non-discrimination tests required under the Internal Revenue Code, the above
definition Compensation shall not take into account amounts paid during that
portion of the Plan Year during which the Employee is not eligible to make a
salary reduction election.
LIMITATION ON TOTAL ALLOCATIONS: FOR PURPOSES OF THE IRS'S
LIMITATION ON TOTAL ALLOCATIONS (WHICH COULD LIMIT THE TOTAL AMOUNT,
INCLUDING ALL CONTRIBUTIONS AND ANY FORFEITURES ALLOCATED TO A PARTICIPANT'S
ACCOUNT(S) UNDER THE PLAN IN ONE YEAR), THE MAXIMUM AMOUNT OF COMPENSATION,
WHICH MAY BE CONSIDERED UNDER THE PLAN IS LIMITED TO $150,000, AS INDEXED FOR
INFLATION ($160,000 FOR 1999, INCREASING TO $170,000 FOR 2000).
If you are self-employed, Compensation means "earned income" as
defined by the Internal Revenue Code.
"EMPLOYER"
Employer means NE Restaurant Company, Inc., any successor organization
adopting this Plan, (including Bertucci's Restaurant Corp.) and all
organizations and entities that are required by the Internal Revenue
Code to be aggregated with NE Restaurant Company, Inc.
"HIGHLY COMPENSATED EMPLOYEE"
Highly Compensated Employee is an employee who:
- owns or owned more than 5% of the Employer during the Plan Year or
the preceding Plan Year; or
- earned more than $80,000 (as indexed for inflation) in annual
Compensation from the Employer during the preceding Plan Year.
"HOURS OF SERVICE"
Hours of Service means any hours for which you are either paid or
entitled to be paid by the Employer for performing duties or for other
reasons such as vacation, holidays, sick days, maternity or paternity
leave, disability, jury or military duty, layoff or authorized leave of
absence. When calculating your Hours of Service for each week, during
which you work at least one hour for the Employer, your Employer will
credit you with the actual number of hours for which you performed
services for the Employer during that week.
Please note any Hours of Service that you may have accumulated for
reasons other than performing duties, such as vacation, maternity
leave, etc., cannot exceed 501 hours for each continuous period during
which you do not perform any duties.
"KEY EMPLOYEE"
Key Employee is an employee who at any time during the Plan Year, or
any of the preceding four Plan Years, is one or more of the following:
- An individual owning more than 5% of the business;
- An individual owning more than 1% of the business and earning more
than $150,000;
- An officer of the business earning more than $45,000 (as indexed for
inflation; $65,000 for 1999); or
- One of the 10 employees earning more than $30,000 and owning the
largest interest in the business.
"ONE-YEAR BREAK IN SERVICE"
For the purpose of determining Years of Service on the Elapsed Time
Method, a One-Year Break in Service is a 12 consecutive month Period of
Severance, beginning on your Severance from Service Date. The Severance
from Service Date of an Employee who is absent from Service by reason
of maternity/paternity leave of absence is the second anniversary of
the first date of such absence.
For the purpose of determining Years of Service on the 1,000 Hours of
Service Method, a One-Year Break in Services is 12 month period during
which you fail to complete 500 or more Hours of Service. The 12 month
periods are measured from the day you began working for the Employer or
an anniversary of that date.
"PARTICIPANT"
Participant means an employee who has satisfied the eligibility
requirements of the Plan and is thereby eligible to participate in the
Plan. See Section 3 of this Summary for the Plan's eligibility
requirements.
"PERIOD OF SERVICE"
Period of Service means the Employer-Employee relationship, which begins
on your date of employment and continues until your Severance from Service Date.
(Note: Your Period of Service will include any Period of Severance beginning on
your Severance from Service Date that is less than 12 months.)
"PERIOD OF SEVERANCE"
Period of Severance equals the period of time commencing on your
Severance from Service Date and ending on the date you are re-employed.
Your Severance from Service Date will be the earlier of 1, 2, or 3
below:
1. The date you terminate employment.
2. The second anniversary of the first day you are absent from Service
for maternity or paternity leave of absence.
3. The first anniversary of the first day you separate from service
for any other reason such as authorized leave of absence, sickness,
vacation, etc., after which you do not return to work.
"PLAN YEAR"
Plan Year means the 12-month period ending on the last day of December
over which Plan records are maintained.
"TOP HEAVY"
Top Heavy describes a Plan in which the sum of account balances of Key
Employees (defined above) exceeds 60% of
the sum of account balances of all Participants.
"VESTING YEAR"
You will be credited with a Vesting Year for each Year of Service you
accrue on the vesting schedule. (See "Vesting of Contributions" on page
12).
When calculating your Vesting Years, the Employer will include your
employment:
- before this Plan or predecessor plan was established.
- before the first Plan Year in which you reached the age of 18.
"YEAR OF SERVICE"
A Year of Service is typically used to determine Vesting and
Forfeitures under the Plan and is measured beginning on your date of
employment (or reemployment) with the Employer or an anniversary of
that date.
For the purpose of determining a Vesting Year, calculated on the
Elapsed Time Method, a Year of Service is a Period of Service equaling
12 months. Service counted in computing Years of Service need not be
consecutive or continuous, and all fractional Periods of Service Shall
be aggregated.
For the purpose of determining a Vesting Year, calculated on the Hours
of Service Method, a Year of Service is a 12 consecutive month period
during which you have worked at least 1,000 Hours of Service. Prior to
April 29, 1999, this method was used to calculate the Vesting Years for
employees who were formerly in the N.E. Restaurant Company, Inc. 401(k)
Profit Sharing Plan.
Effective April 29, 1999, Vesting Years will be calculated by the
Elapsed Time Method for all eligible employees. It is intended that each
Employee will have a vesting percentage equal to the percentage earned under
the document prior to April 29, 1999. In order to measure Years of Service
under the Elapsed Time Method, the "deemed date of employment" will be set
for employees who were formerly in the N.E. Restaurant Company, Inc. 401(k)
Profit Sharing Plan. The "deemed date of employment" will be the earlier of
(1) the employee's first Hour of Service or (2) the first day of the Plan
Year in which the employee earned credit for his first Year of Service under
the 1,000 Hours of Service Method.
3. BELONGING TO THE PLAN
Before you become a Participant in the Plan, you must satisfy
certain eligibility requirements. These requirements are explained in this
section.
You have the right to make Salary Reduction to the Plan after you
complete four (4) consecutive Months of Service for the Employer.
You will also have the right to receive Employer Profit Sharing and
Matching Contributions made to the Plan after you complete four (4)
consecutive Months of Service for the Employer.
All employees who have completed the necessary length of service
stated above and who are at least 21 years of age are eligible to participate
except:
- Non-resident aliens who work for the Employer outside of the United
States;
- Individuals covered by a collective bargaining contract (please refer
to the Plan document for specific details);
- Hourly Employees, who are not considered Corporate Administrative
Employees;
- Leased Employees;
- Individuals defined as Highly Compensated Employees.
You will become a Participant in the Plan on the first day of the
next month after you complete all of the above applicable requirements.
If you terminate employment with the Employer after you begin
participating in the Plan, or after meeting the Plan's eligibility
requirements but before becoming a Participant in the Plan, and are later
rehired by the Employer (as an employee eligible to participate in the Plan)
you may begin participating in the Plan immediately upon rehire.
4. CONTRIBUTIONS TO THE PLAN
EMPLOYEE CONTRIBUTIONS
SALARY REDUCTION CONTRIBUTIONS
You may elect to have part of your Compensation contributed to the Plan
through the salary reduction agreement.
These contributions are called "Salary Reduction Contributions." The minimum
percent of your Compensation that you may contribute is 1%, and the maximum
percent of your Compensation that you are allowed to contribute is 20%.
Your Salary Reduction Contributions are limited for each calendar
year to $7,000, as indexed for inflation. For 1999, the indexed limit was
$10,000 and for 2000, the limit is $10,500. If you contribute more than is
allowed for any year, you should notify the Employer between January 1 and
March 1 of the following year so that the Employer will be able to have the
excess removed by April 15th of that same following year to avoid any tax
penalty.
ROLLOVER CONTRIBUTIONS
If the Plan Administrator allows it, you may make a Rollover
Contribution to the Plan from another tax-qualified plan. You must either
make a Rollover Contribution within 60 days of receiving the Rollover amount
or have the amount directly rolled over from your prior plan (or a conduit
IRA). In most cases, the Plan Administrator will require that you state in
writing that the amount is eligible for a Rollover according to the Internal
Revenue Code requirements. Any Rollover Contributions and their earnings are
always 100% vested.
EMPLOYER CONTRIBUTIONS
PROFIT SHARING CONTRIBUTIONS
Each Plan Year, the Employer, at its discretion, may make a Profit
Sharing Contribution to the Plan.
You will qualify to receive an allocation of any discretionary
Profit Sharing Contributions if you are a Participant who received
Compensation during the Plan Year and if you were employed on the last day of
the Plan Year, or your retired, became disabled or died during the Plan Year.
The Employer's Profit Sharing Contribution will be allocated to
eligible Participants in the ratio that each Participant's Compensation (see
Definition Section of this Summary) for the Plan Year bears to the Total
Compensation paid to all Participants for the Plan Year. For Example:
Total Profit Participant's Compensation for Amount Credited to the
Sharing the Plan Year Participant's Account
Contribution X ----------------------------- =
Total Compensation for the Plan
Year of all eligible Participants
EMPLOYER MATCHING CONTRIBUTIONS
Each Plan Year, the Employer will make a Matching Contribution which
will be determined based on the Plan Year.
Your Employer will match 25% of your Salary Reduction Contribution.
The Employer will not, however match any contributions you have made in
excess of 6% of your Compensation.
TAXATION OF CONTRIBUTIONS
All contributions made to your Account are not currently subject to
federal, and most state, income taxes, but will be subject to federal, and
possibly state and local, income taxation along with their earnings when
benefits are later paid to you or your beneficiaries. Also, any distributions
you receive before reaching the age of 59 1/2 will be subject to a 10% IRS
early withdrawal penalty, unless the distribution is:
1) Paid on account of your disability;
2) Paid to you after you separate from service, in substantially
equal payments based on your life expectancy or the joint life
expectancy of you and your beneficiary (provided that the
payments continue without modification until the later of 5
years or age 59 1/2);
3) Paid to you on account of a separation from service after you
have reached age 55;
4) Paid on account of your death;
5) Paid to a spouse, ex-spouse or other party pursuant to a
qualified domestic relations order; or
6) Paid for medical expenses (only to the extent such expenses
would be deductible).
VESTING OF CONTRIBUTIONS
All contributions that YOU make to the Plan and any earnings thereon,
are fully vested and non-forfeitable when made. To the extent assets are
"vested," they are "non-forfeitable" and may not be lost or taken away, even if
you leave your job.
Unless, you were formerly in the N.E. Restaurant Company, Inc. 401(k)
Profit Sharing Plan, all Profit Sharing Contributions and Matching Contributions
made by the Employer on your behalf, and any earnings on those contributions,
will vest and become non-forfeitable at the following rate:
Vesting Years Percentage Vested
1 25%
2 50%
3 75%
4 100%
For Employees who were formerly in the N.E. Restaurant Company, Inc.
401(k) Profit Sharing Plan, the following vesting schedule applies to
Employer Profit Sharing and Matching Contributions:
Vesting Years Percentage Vested
1 25%
2 50%
3 100%
Contact your Plan Administrator if you want further detail on how Years of
Service or Vesting Years are counted under the Plan.
TERMINATION OF EMPLOYMENT
CONTRIBUTIONS AFTER TERMINATION OF EMPLOYMENT AND ELIGIBILITY UPON REHIRE
If you are a Plan Participant and you leave your job with the
Employer, you will no longer be eligible to participate in the Plan. You may,
however, be entitled to receive an allocation of any Employer Contributions
for the Plan Year during which you terminated employment. If you return to
work for the Employer, you will immediately become a Participant in the Plan
again (provided you are a member of an eligible class of employees) and will
be able to make Salary Reduction Contributions again. The extent to which you
may be eligible to receive an allocation of any Employer Contributions either
for the Plan Year during which you terminated employment or during which you
are rehired will depend on the Plan's allocation requirements (see "EMPLOYER
CONTRIBUTIONS," above).
VESTING AND FORFEITURES
If you separate from service before you are 100% vested, you will be
entitled to take distribution of only the VESTED portion of your account(s).
The non-vested portion will be forfeited. However, if you return to work
within a certain period of time, generally 5 years, and repay to the Plan the
amount of Employer Contributions and earnings you previously received, the
Employer will reinstate your account with the amount that was forfeited. You
will generally have 5 years measured from the date you originally separated
from service to repay to the Plan the amount you took as a distribution.
You should check with the Plan Administrator for more detailed
information concerning these rules and their application to your situation.
If you decide to leave your account balance(s) in the Plan, the
Employer will not forfeit the non-vested portion until
you have incurred five (5) consecutive One-Year Breaks in Service (refer to
the definition of "One-Year Break in Service" above, as it relates to Vesting
and Forfeitures), or until you elect to take a distribution of your vested
portion, whichever is earlier.
Forfeitures will be applied to reduce the Employer's obligation to
make a fixed contribution (E.G., Matching or fixed Profit Sharing
Contributions) for the Plan Year following the Plan Year in which the
forfeiture occurred.
If you return to work for the Employer, and again participate in the
Plan, any Vesting Years you accumulated before you left your job will be used
in determining the vested portion of any subsequent Employer Contributions
you may receive. The extent to which your future service with the Employer
may be used to increase the vested portion of Employer Contributions you
received PRIOR TO separation (assuming these amounts either remained in the
Plan or were repaid to the Plan following your rehire) depends on how many
One-Year Breaks in Service (refer to the definition of One-Year Break in
Service, above, as it relates to Vesting and Forfeitures) you incurred before
you were re-hired. If you were not fully vested at the time you left your job
but you did not incur five (5) consecutive One-Year Breaks in Service, any
Vesting Service you accumulate after re-hire will be counted in determining
the vested portion of the Employer Contributions you received prior to your
separation from service. If you did incur five (or more) consecutive One-Year
Breaks in Service, the vested portion of the Employer Contributions you
received prior to separation will not be increased on account of your
subsequent service and the non-vested portion will remain forfeited.
5. BENEFITS AND DISTRIBUTIONS FROM THE PLAN
TIMING OF DISTRIBUTIONS
NORMAL DISTRIBUTION TIME
Your Normal Retirement Date will occur when you reach the age of 59
1/2. Unless you elect otherwise, distribution of your account balance
generally will begin following the end of the Plan Year in which you either
reach your Normal Retirement Date or you stop working for the Employer,
whichever is later.
In certain circumstances, however, you may be required to begin
receiving distributions even though you are still working for the Employer.
If you are NOT a 5% owner, you are required to begin receiving required
minimum distributions ("RMDs") not later than April 1st of the calendar year
following the LATER of (i) the date you attain age 70 1/2, or (ii) the date
you retire from service for the Employer. If yOU are a 5% owner, however, you
are required to begin receiving RMDs not later than April 1st of the calendar
year following the year in which you attain age 70 1/2 -- regardless of
whether you
are still employed by the Employer. In any event, you must continue receiving
RMDs by December 31st of each year following the year in which you attained
age 70 1/2 or retired.
If you do not receive your RMD for any year, you will be subject to
an IRS penalty equal to 50% of the amount you did not receive by the deadline.
OTHER DISTRIBUTION TIMES
As a general rule, you may elect an earlier time for distribution to
begin, provided that distributions do not begin before you have reached your
Normal Retirement Date, become disabled, or separated from service with the
Employer. (Note: in certain circumstances you may have earlier access to your
benefits under the Plan as described in "IN-SERVICE WITHDRAWALS" or "HARDSHIP
WITHDRAWALS", below.)
CONSENT TO DISTRIBUTION
If your Plan account balance (excluding your Rollover Account) is
$5,000 or less, the Plan Administrator may authorize distribution of your
Plan accounts in a single lump sum payment without your consent, once you
have reached a time when distributions can begin (E.G., your termination of
employment). If your account balance (excluding your Rollover Account) is
over $5,000, distributions cannot be made without your consent (except in the
case of required minimum distributions, described in "NORMAL DISTRIBUTION
TIME," above, or if necessary, to correct contributions made to your
account(s) in excess of certain limits imposed by the Internal Revenue Code).
FORMS OF DISTRIBUTIONS
NORMAL DISTRIBUTION FORM
Your vested account balance under the Plan will be distributed in the
form of a single lump sum payment unless it exceeds $5,000 and you request one
of the Optional Distribution Forms (described below).
OPTIONAL DISTRIBUTION FORMS
Instead of the Normal Distribution Form, described above, you may
elect to receive distribution of your vested account balance in one (or a
reasonable combination) of the following Optional Distribution Forms:
- Monthly installments over a period equal to the shorter of (i) 120
months or (ii) of your life expectancy (or the joint life
expectancies of you and your spouse);
- Installment payments in a fixed amount until the vested account
balance are exhausted.
IN-SERVICE WITHDRAWALS
AGE 59 1/2
You may withdraw all or a portion of your vested account balance
once you have attained age 59 1/2, including the earnings, at any time,
provided you give at least 30 days written notice to the Plan Administrator.
ROLLOVER CONTRIBUTIONS
You may withdraw all or a portion of your Rollover Contributions, if
any, as well as any earnings on those contributions at any time, provided you
give at least 30 days written notice to the Plan Administrator.
EMPLOYER CONTRIBUTIONS
If you are still employed by the Employer, you may request an
in-service withdrawal from your Employer Profit Sharing Contributions Account
and Employer Matching Contributions Account, provided you are 100% vested in
those accounts and you are experiencing a financial hardship (see "HARDSHIP
WITHDRAWALS" below) even if you have not yet attained your Normal Retirement
Date.
SALARY REDUCTION CONTRIBUTIONS
If you are still employed by the Employer, you may request an
in-service withdrawal from your Salary Reduction Contribution Account (but
not any earnings), provided you are experiencing a financial hardship (see
"HARDSHIP WITHDRAWALS" below) even if you have not yet attained your Normal
Retirement Date.
HARDSHIP WITHDRAWALS
You are also eligible to receive an in-service withdrawal from your
account in the event of an immediate and heavy financial need resulting from
one or more of the following circumstances:
1. Certain medical expenses for you, your spouse, or any of your
dependents;
2. Purchase of your principal residence (this does not include mortgage
payments);
3. Payment of tuition and certain related expenses for the next twelve
months of post-secondary education for you, your spouse, your
children or other dependents; or
4. Payment to prevent your eviction from your principal residence or to
prevent foreclosure on the mortgage on
your principal residence.
Hardship Withdrawals will be made in the form of a single, lump sum
payment.
Hardship Withdrawals may be taken from your Salary Reduction
Contributions, Employer Profit Sharing Contributions and Employer Matching
Contributions
In the case of Salary Reduction Contributions, a Hardship Withdrawal
may NOT include earnings on these contributions after December 31, 1988. In
the case of Employer Profit Sharing Contributions and/or Employer Matching
Contributions, a Hardship Withdrawal may include earnings (if any) on the
contributions, but you must be 100% vested in your Employer Profit Sharing
and/or Matching Contributions account(s) to receive a Hardship Withdrawal
from those accounts.
You must also satisfy the following conditions to receive a Hardship
Withdrawal:
1. You must have taken all other permissible distributions or
nontaxable loans from this Plan or any other plan of the
Employer.
2. You will not be permitted to make Salary Reduction Contributions
for twelve months after you receive a hardship distribution.
3. The Hardship Withdrawal may not exceed the amount of your
immediate and heavy financial need (but may also include amounts
necessary to pay any federal, state, or local income taxes or
penalties likely to result from the distribution).
4. For the year following the year in which you took the Hardship
Withdrawal, the maximum amount that you will be allowed to
contribute to the Plan as your Salary Reduction Contributions
will be the difference between (a) the limit on Salary Reduction
Contributions for that year ($7,000 as indexed for inflation;
$10,500 for 2000) and (b) the amount you contributed to the Plan
by Salary Reduction Contributions in the year you took the
hardship distribution.
WITHHOLDING ON DISTRIBUTIONS
Most distributions paid directly to you will be subject to a 20%
federal income tax withholding requirement. (Certain
state income tax withholding obligations may also apply.) This requirement
cannot be waived. The withholding requirement may, however, be avoided under the
following circumstances:
1. If you receive substantially equal installment payments designed:
a) to be paid over a period of at least 10 years or
b) to be paid for the duration of your life (or life
expectancy) or the joint lives (or joint life
expectancies) of you and your beneficiary,
the 20% withholding requirement will not apply.
2. If all or a portion of the distribution is a "required minimum
distribution" under Section 401(a)(9) of the Internal Revenue
Code, the 20% withholding requirement will not apply to the
portion that is a required minimum distribution.
3. If your distribution is eligible for rollover treatment, you may
have the distribution directly rolled over into an IRA or
another qualified retirement plan (I.E., not paid to you) and
the distribution will not be subject to the 20% withholding.
Check with the Human Resources Department for further information on
these rules.
DISTRIBUTIONS OF BENEFITS UPON YOUR DEATH
PRE-RETIREMENT DEATH BENEFITS
If you are married and you die before distribution of your vested
account balance has begun, your vested account balance will be distributed to
your spouse, unless you designate an alternative Beneficiary (or
Beneficiaries) for all or a portion of your account. To designate a
Beneficiary (or Beneficiaries) other than your spouse, you must obtain your
spouse's written consent. If you are unmarried at the time of your death,
your vested account balance will be paid to your designated Beneficiary (or
Beneficiaries).
Distribution(s) to your spouse or Beneficiary (or Beneficiaries)
will be made in the form(s) elected by your spouse or each Beneficiary.
POST-RETIREMENT DEATH BENEFITS
If you die after the distribution of your vested account balance has
commenced, the remainder of the distributions will continue to be paid, in
the same manner, to your spouse or any Beneficiary (or Beneficiaries) you
properly designated before your death.
6. MISCELLANEOUS
NONDISCRIMINATION AND OTHER TESTING
Each year the Employer is required to test the Plan for
nondiscrimination. The test is performed by comparing the average percentage
of Compensation contributed on behalf of the Highly Compensated Employees
with the average percentage of Compensation contributed on behalf of the
non-Highly Compensated Employees. The average percentage for the Highly
Compensated cannot exceed the average percentage for the non-Highly
Compensated by more than a certain amount prescribed by law.
If the Plan fails the nondiscrimination test, or any other test
required by the IRS, the Employer will be required to take steps, such as
returning some of the contributions made on behalf of certain Highly
Compensated Employees, to bring the Plan into compliance with the various
nondiscrimination and related rules. You will be informed if any
contributions need to be removed from the Plan and paid to you.
INVESTMENT OF THE TRUST FUND
All contributions made on your behalf are held in a Trust Fund, in a
separate account maintained in your name and invested by the Trustee. The
Trust Fund is maintained strictly for the benefit of Participants and their
Beneficiaries; the Trustee is required to act only in their interests. You
will make decisions with respect to the investment of the assets in your
particular account.
LOANS
Loans are permitted. Loans are made only from your account and are
subject to the nondiscriminatory terms and conditions prescribed by the
Administrator, as described in the loan policy.
QUALIFIED DOMESTIC RELATIONS ORDERS
While Federal law protects your Plan assets from creditors,
qualified domestic relations orders are an exception. A qualified domestic
relations order is a court order that gives an alternate payee (such as a
spouse, former spouse, or child) a right to part or all of your Plan assets.
Such an order can force payment of benefits while you are working even though
the Plan may otherwise prohibit distributions earlier than retirement,
termination, death or disability. The Plan Administrator will notify you if
the Plan receives a domestic relations order relating to you and must
determine, within a reasonable time, if the order is qualified. If you have
any questions about qualified domestic relations orders, you should contact
the Plan Administrator.
TOP-HEAVY PLAN
For any Plan Year the Plan is determined to be Top-Heavy, the
Employer may be required to make additional contributions on behalf of the
non-Key Employees and/or to accelerate vesting.
AMENDMENT AND TERMINATION OF PLAN
The Employer intends to maintain the Plan indefinitely.
Nevertheless, the Employer does have the right to amend or terminate the Plan
at any time. In the event the Plan is ever amended or terminated, the Plan
contains the following provisions designed to protect your benefits: Once the
Employer has made a valid contribution to the Trust, the Employer cannot
recover it. Similarly, once you have a vested benefit, it cannot be taken
away. Finally, unless the law requires it, or the government gives special
permission, the amount in your account cannot be reduced and the Plan's
distribution options cannot be restricted.
Once you become a Participant in the Plan, you will maintain your
interest in all future Employer contributions regardless of whether the
Employer changes the Plan's eligibility and/or vesting requirements. If the
Plan's vesting schedule is changed, Participants with three (3) or more
Vesting Years (five (5) or more Vesting Years for Participants who have not
been credited with an Hour of Service in a Plan Year beginning after
12/31/88) may choose to keep the old vesting schedule for their accounts.
If the Plan is combined in any way with another plan, your benefit
under the combined plan will not be less than it would have been if the Plan
had terminated, instead of being combined with the other plan.
If the Plan terminates or the Employer completely discontinues
contributions, the Plan Administrator will instruct the Trustee as to whether
and how to distribute Participants' accounts.
The Employer has delegated a limited power to amend the Plan to
Scudder Investor Services, Inc.
ADMINISTRATION
The individual or entity whose name appears on page 28 will serve as
Plan Administrator. It is the Plan Administrator's job to keep lists of
Participants and their Beneficiaries, to process disbursement orders, to take
care of bookkeeping and recordkeeping, and to prepare reports for employees
and government agencies. The Plan Administrator will also have the authority
to decide all questions about the interpretation of Plan provisions and to
hold hearings on disputed claims for benefits.
CLAIMS AND REVIEW PROCEDURE
The Plan Administrator will administer the Plan to provide benefits to
you as soon as you are entitled to receive them. The following procedure is,
however, available to you if you feel that you are entitled to a benefit you are
not receiving: MAKING A CLAIM You must make a claim to the Plan Administrator IN
WRITING unless the Plan Administrator agrees that this formality is not
required.
NOTICE OF REASON FOR DENIAL
If the Plan Administrator denies your claim to a benefit, you must
receive written notice of the denial within 60 days after the day you filed your
claim. This notice must give you the reasons for the denial and a description of
what your rights are for review of the denial.
REVIEW
You will have 60 days from the day you received a denial from the Plan
Administrator to make a written application for review. You may have a hearing
at that review session if you ask for it. If you request a hearing, you may have
a lawyer with you, you may examine the Plan documents, and you may submit your
own comments in writing.
The Plan Administrator must make a decision on the review within 60
days of your application, except that up to 60 more days may be taken if the
Plan Administrator finds that special circumstances exist, such as the need to
hold a hearing. You will receive the Plan Administrator's decision in writing,
including reasons for that decision.
"SPENDTHRIFT" PROVISIONS
Generally, the Plan does not allow you to pledge, give away or sell
your rights to your account. Except as expressly permitted under the Internal
Revenue Code (I.E., you default on a Plan loan, a portion of your benefits are
assigned pursuant to a qualified domestic relations order, contributions were
made to your account(s) in excess of certain limits, etc.), your account balance
may not be reduced.
TRUST FUND NOT INSURED
The funds in the Plan are not insured because insurance is not
available for this type of retirement plan. Pension
insurance is available only for plans in which the actual dollar amount of the
benefits is known. In this Plan, the actual dollar amount of the contributions
varies from year to year, and the amount in your account depends on the
investment results in the Trust Fund. The value in dollars of your benefits will
therefore not be known until you are entitled to receive them. Consequently, the
Plan is not eligible for insurance.
INABILITY TO LOCATE PERSON TO RECEIVE PAYMENT, INCOMPETENT BENEFICIARY
If the person eligible to receive any benefit from the Plan is
unable to be located or identified, the Plan Administrator, in his/her
discretion, may direct the Trustee to: (1) forfeit and reallocate the benefit
to the remaining Participants, (2) retain the benefit in the Trust, or (3)
pay the benefit to a court pending judicial determination of who is entitled
to the benefit. If the benefit is forfeited and reallocated, however, the
Employer will be required to reinstate the benefit if the person eligible to
receive the benefit is later located or identified.
If the Plan Administrator decides that any person to whom a benefit
is payable is physically or mentally incapable of handling his or her
financial affairs, the Plan Administrator may direct the Trustee to make
payments that would normally be due to that individual, either to the
individual's legal representative or custodian, or to apply such payments
directly for the individual's support and maintenance.
SPECIAL RIGHTS UNDER ERISA
As a participant in the Plan, you are entitled to certain rights and
protection under ERISA (Employee Retirement Income Security Act of 1974). ERISA
provides that all participants will be entitled to:
(a) Examine without charge, at the Plan Administrator's office, all
Plan documents including insurance contracts and copies of all
documents filed by the Plan with the U.S. Department of Labor,
such as annual reports and Plan descriptions.
(b) Obtain copies of all Plan documents and other Plan information
upon written request to the Plan Administrator. The Plan
Administrator may make a reasonable charge for the copies.
(c) Receive a summary of the Plan's annual financial report. The
Plan Administrator is required by law to furnish each
participant with a copy of this summary financial report.
(d) Obtain a statement telling you whether you have a right to
receive a pension at normal retirement age, and if so, what your
benefits would be at normal retirement age if you stop working
under the Plan now. If you do not have a right to a benefit, the
statement will tell you how many more years you have to work to
have a right to a benefit. You must request this statement in
writing. The Plan Administrator is not required to provide this
statement more than once a year, but must provide the statement
free of charge.
(e) In addition to creating rights for plan participants, ERISA
imposes duties upon the people who are responsible for the
operation of the employee benefit plan. The people who operate
the Plan, the Plan Administrator and the Trustee, are called
"fiduciaries" of the Plan, and have a duty to act prudently and
in the interest of you and other Plan Participants and
Beneficiaries.
No one, including the fiduciaries, your Employer, your union or
any other person, may fire you or otherwise discriminate against
you in any way to prevent you from obtaining a pension benefit
or exercising your rights under ERISA. If your claim for a
pension benefit is denied in whole or in part, the Plan
Administrator must provide you with a written explanation of the
reason for the denial. You also have the right to have the Plan
Administrator review and reconsider your claim.
You can take the following steps to enforce the above rights
under ERISA:
1. If you request materials from the Plan Administrator and
do not receive them within 30 days, you may file suit in a
federal court. In such a case, the court may require the
Plan Administrator to provide the materials and pay you up
to $100 a day until you receive the materials, unless the
materials were not sent because of reasons beyond the
control of the Plan Administrator.
2. If you have a claim for benefits which is denied or
ignored, in whole or in part, you may file suit in a state
or federal court.
3. If the Plan fiduciaries misuse the Plan's money, or if you
are discriminated against for asserting your rights, you
may ask for assistance from the U.S. Department of Labor,
or you may file suit in a federal court. The court will
decide who should pay court costs and legal fees. If you
are successful, the court may order the person you have
sued to pay these costs and fees. If you lose, the court
may order you to pay these costs and fees if, for example,
it finds your claim is frivolous.
If you have any questions about the Plan, you should contact the
Plan Administrator. If you have any questions about this statement or about
your rights under ERISA, you should contact the nearest Area Office of the
U.S. Labor-Management Services Administration, Department of Labor OR the
Division of Technical Assistance and Inquiries, Pension and Welfare Benefits
Administration, U.S. Department of Labor, 200 Constitution Avenue N.W.,
Washington, D.C. 20210.
7. REFERENCES
NAME OF PLAN: NE Restaurant Company, Inc.
Savings and Investment Plan
PLAN NUMBER: ???
PLAN YEAR: The 12-month period
ending on the last day of
December.
NAME, ADDRESS AND PHONE NUMBER
OF EMPLOYER: NE Restaurant Company, Inc. 5
Clock Tower Place, Suite 200
Maynard, MA 01754 978.897.1400
EMPLOYER IDENTIFICATION NUMBER: 06-1311266
EMPLOYER'S FISCAL YEAR: The 12-month period ending on
the last day of December.
NAME AND ADDRESS OF PLAN ADMINISTRATOR: NE Restaurant Company, Inc. 5
Clock Tower Place, Suite 200
Maynard, MA 01754
NAME AND ADDRESS OF AGENT FOR
SERVICE OF LEGAL PROCESS: NE Restaurant Company, Inc. 5
Clock Tower Place, Suite 200
Maynard, MA 01754
NAME AND ADDRESS OF TRUSTEE: Scudder Trust Company
11 Northeastern Boulevard
Salem, NH 03079