EXHIBIT 6 LITIGATION SETTLEMENT AGREEMENT ------------------------------- Litigation Settlement Agreement, dated as of May 13, 1998, by and among Bertucci's, Inc., a Massachusetts corporation (the "Company"); Ten Ideas, Inc., a Delaware corporation ("Ten Ideas"); Ten Ideas Acquisition Corp., a Massachusetts corporation ("Ten Ideas Acquisition"); NE Restaurant Company, Inc., a Delaware corporation ("NE Restaurant"); NERC Acquisition Corp., a Massachusetts corporation ("NERC"); and Joseph Crugnale ("Mr. Crugnale"). WITNESSETH WHEREAS, the Company, Ten Ideas and Ten Ideas Acquisition are parties to a certain Agreement and Plan of Merger, dated as of February 13, 1998 (the "Ten Ideas Agreement"); pursuant to which Ten Ideas Acquisition would be merged with and into the Company with the Company being the surviving corporation; and WHEREAS, subsequent to execution of the Ten Ideas Agreement, three purported class action law suits, as set forth on Schedule A attached hereto, ---------- were filed in Massachusetts Superior Court against the Company and the members of its Board of Directors, including Mr. Crugnale, claiming that the consummation of the Merger (as defined in the Ten Ideas Agreement) would be wrongful, unfair and in breach of the individual defendants' fiduciary duties (collectively, the "Stockholder Claims"); WHEREAS, on May 13, 1998, the Company, NE Restaurant and NERC entered into an Agreement and Plan of Merger, pursuant to which NERC would be merged with the Company (the "NE Restaurant Agreement"); WHEREAS, upon entering into the NE Restaurant Agreement, the Company, pursuant to Section 7.1(c) of the Ten Ideas Agreement, is required and has paid to Ten Ideas the sum of $1,500,000, plus documented expenses not to exceed $750,000 (the "Termination Fee"); and WHEREAS, the Parties hereto now wish to enter this Agreement in order to (i) address the defense and settlement of the Stockholder Claims, and (ii) acknowledge and agree to payment by the Company of the Termination Fee to Ten Ideas. NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises contained herein and for good and valuable consideration, the receipt and adequacy of where are hereby acknowledged, the undersigned hereto agrees as follows: 1. DEFENSE AND SETTLEMENT OF LITIGATION. The Company, NE Restaurant and ------------------------------------ NERC hereby covenant and agree, jointly and severally, (i) to continue to permit Mr. Crugnale, Ten Ideas and Ten Ideas Acquisition to participate in the defense or settlement of each of the Stockholder Claims (or any claim consolidating the Stockholder Claims) in accordance with the provisions of Section 6.6 of the NE Restaurant Agreement and the Company's Restated By-laws, and (ii) not to settle or compromise any of the Stockholder Claims (or any claim consolidating the Stockholder Claims) unless such settlement or compromise includes the giving by the claimants thereunder to Mr. Crugnale, Ten Ideas and Ten Ideas Acquisition of an unconditional release from all liability in respect of each of the Stockholder Claims (or any such consolidated claim). 2. TERMINATION FEE. NE Restaurant and NERC hereby acknowledge that the --------------- Company has paid the Termination Fee to Ten Ideas and the Company, NE Restaurant and NERC hereby agree that they shall in no event (i) contest the propriety of or the obligation to make such payments or (ii) seek to recover all or any portion of the Termination Fee. 3. NOTICE. For purposes of this Agreement, all notices and all other ------ communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when (a) delivered personally, (b) sent by facsimile or similar electronic device and confirmed, (c) delivered by overnight express, or (d) if sent by any other means, upon receipt. Notices and all other communications provided for in this Agreement shall be addressed as follows: (a) if to Ten Ideas, Ten Ideas Acquisition and Mr. Crugnale: Ten Ideas, Inc. 14 Audubon Road Wakefield, Massachusetts 01880 Attn: Joseph Crugnale, President with a copy to: Posternak, Blankstein & Lund, L.L.P. 100 Charles River Plaza Boston, Massachusetts 02114 Attn: Donald H. Siegel, P.C. (b) if to the Company, to: Bertucci's, Inc. 14 Audubon Road Wakefield, Massachusetts 01880 Attn: Board of Directors 2 with a copy to: Hutchins, Wheeler & Dittmar A Professional Corporation 101 Federal Street Boston, Massachusetts 02110 Attn: James Westra, Esq. (c) if to NE Restaurant and NERC, to: NE Restaurant Company, Inc. 80A Turnpike Road Westborough, Massachusetts 01581 Attn: President with copies to: Jacobson Partners 595 Madison Avenue New York, New York 10022 Attn: Benjamin Jacobson with copies to: Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, New York 10038 Attn: David L. Finkelman, Esq. 4. MISCELLANEOUS. No provision of this Agreement may be modified, ------------- waived, or discharged unless such waiver, modification, or discharge is agreed to in a written instrument signed by the parties hereto. No waiver by either party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by any party which are not set forth expressly in this Agreement. 5. VALIDITY. The invalidity or unenforceability of any provision or -------- provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. 6. COUNTERPARTS. This Agreement may be executed in several counterparts, ------------ each of which shall be deemed to be an original, but all of which together will constitute one and the same agreement. 7. ENTIRE AGREEMENT; EFFECTIVENESS. This Agreement constitutes the ------------------------------- entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior agreements or arrangements among the parties hereto or any other predecessor in interest thereto or any of their respective subsidiaries, on the other hand. 3 8. GOVERNING LAW. THIS AGREEMENT, INCLUDING THE VALIDITY HEREOF AND THE ------------- RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE COMMONWEALTH OF MASSACHUSETTS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN SUCH STATE (WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF). EACH OF THE PARTIES HERETO AGREES THAT ANY ACTION OR PROCEEDING BROUGHT TO ENFORCE THE RIGHTS OR OBLIGATIONS OF ANY PARTY HERETO UNDER THIS AGREEMENT MAY BE COMMENCED AND MAINTAINED IN ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE COMMONWEALTH OF MASSACHUSETTS, AND THAT THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS SHALL HAVE NON-EXCLUSIVE JURISDICTION OVER ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT BY ANY OF THE PARTIES HERETO. EACH OF THE PARTIES HERETO FURTHER AGREES THAT PROCESS MAY BE SERVED UPON IT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED AS MORE GENERALLY PROVIDED IN SECTION 8 HEREOF, AND CONSENTS TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTIES WITH RESPECT TO ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ENFORCEMENT OF ANY RIGHTS UNDER THIS AGREEMENT. 9. INVALIDITY. If any cause, paragraph, section or part of this ---------- Agreement shall be held or declared to be void, invalid or illegal, for any reason, by any court of competent jurisdiction, such provision shall be ineffective but shall not in any way invalidate or affect any other clause, paragraph, section or part of this Agreement. 10. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and -------------------------- inure to the benefit of the parties hereto and their respective heirs, successors, personal representatives and permitted assigns. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the date first set forth above. BERTUCCI'S, INC. By: /s/ Norman S. Mallet ------------------------------ Name: Norman S. Mallet Title: Treasurer TEN IDEAS, INC. By: /s/ Joseph Crugnale ------------------------------ Name: Joseph Crugnale Title: President TEN IDEAS ACQUISITION CORP. By: /s/ Dennis Pedra ------------------------------ Name: Dennis Pedra Title: President NE RESTAURANT COMPANY, INC. By: /s/ Dennis Pedra ------------------------------ Name: Dennis Pedra Title: President NERC ACQUISITION CORP. By: /s/ Paul Hoagland ------------------------------ Name: Paul V. Hoagland Title: Asst. Treasurer and Chief Financial Officer /s/ Joseph Crugnale ------------------------------ Joseph Crugnale S-1 SCHEDULE A ---------- MARIETTA BREWSTER, v. JOSEPH CRUGNALE, ROBERT L. LESTINA, JR., JAMES WESTRA, E. BULKELEY GRISWOLD, ALLAN J. STEINMETZ, and BERTUCCI'S, INC. Civil Action No. 98-793 SANDRA WEISS, on behalf of herself and all others similarly situated v. BERTUCCI'S, INC., JOSEPH CRUGNALE, ROBERT L. LESTINA, JAMES WESTRA, E. BULKELEY E. GRISWOLD, and ALLAN J. STEINMETZ Civil Action No. 98-811 KEITH JAMISON, on behalf of himself and all others similarly situated v. JOSEPH CRUGNALE, ROBERT L. LESTINA, JR., JAMES WESTRA, E. BULKELEY GRISWOLD, ALLAN J. STEINMETZ, and BERTUCCI'S, INC. Civil Action No. 98-877