exv10w2



 






Exhibit 10.2




OSHKOSH B’GOSH, INC.

PENSION PLAN




As Amended and Restated on November 6, 2001




With Amendment effective as of December 31, 2002




Generally Effective: January 1, 1998 (unless otherwise stated)





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	INTRODUCTION
	 	 	 	 	1	 
	 
	 	 	 	 	 	 
	CHAPTER I
	 	DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 
	CHAPTER II
	 	ELIGIBILITY AND PARTICIPATION	 	 	10	 
	2.01
	 	Eligibility	 	 	10	 
	2.02
	 	Re-Employment	 	 	10	 
	2.03
	 	Exclusion of Collective Bargaining Employees	 	 	10	 
	2.04
	 	Change in Participant Status	 	 	10	 
	2.05
	 	Employees Not in Eligible Class	 	 	10	 
	 
	CHAPTER III
	 	CONTRIBUTIONS	 	 	10	 
	3.01
	 	Employer Contributions	 	 	10	 
	3.02
	 	Funding Policy	 	 	11	 
	3.03
	 	Employee Contributions	 	 	11	 
	 
	 	 	 	 	 	 
	CHAPTER IV
	 	RETIREMENT BENEFITS	 	 	11	 
	4.01
	 	Normal Retirement Benefit	 	 	11	 
	4.02
	 	Early Retirement	 	 	12	 
	4.03
	 	Late Retirement	 	 	12	 
	4.04
	 	Non-Duplication of Benefit	 	 	13	 
	4.05
	 	Re-Employment	 	 	13	 
	 
	 	 	 	 	 	 
	CHAPTER V
	 	BENEFIT LIMITATIONS	 	 	13	 
	5.01
	 	Definitions	 	 	13	 
	5.02
	 	General Limitations	 	 	15	 
	5.03
	 	Less Than 10 Years	 	 	16	 
	5.04
	 	Limitations if Participant in Other Plan(s)	 	 	16	 
	 
	 	 	 	 	 	 
	CHAPTER VI
	 	PRE-RETIREMENT DEATH BENEFITS	 	 	17	 
	6.01
	 	Death Benefits	 	 	17	 
	6.02
	 	Death Benefit Limitations	 	 	17	 
	6.03
	 	Pre-Retirement Death Benefit for Surviving Spouse; Post-Retirement Death Benefits	 	 	17	 
	 
	 	 	 	 	 	 
	CHAPTER VII
	 	OTHER TERMINATION AND VESTING	 	 	17	 
	7.01
	 	Full Vesting Dates	 	 	17	 
	7.02
	 	Vesting Schedule	 	 	17	 
	7.03
	 	Commencement of Benefits	 	 	18	 
	7.04
	 	Forfeiture	 	 	18	 
	7.05
	 	Resumption of Participation	 	 	18	 






 









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	CHAPTER VIII
	 	PAYMENT OF BENEFITS	 	 	18	 
	8.01
	 	Commencement of Benefits	 	 	18	 
	8.02
	 	Automatic Joint and Survivor Benefits	 	 	19	 
	8.03
	 	Optional Forms of Payment	 	 	20	 
	8.04
	 	Incidental Death Benefits	 	 	21	 
	8.04A
	 	New Minimum Distribution Regulations	 	 	22	 
	8.05
	 	Transfers	 	 	22	 
	8.06
	 	No Other Benefits	 	 	22	 
	8.07
	 	Direct Rollover	 	 	22	 
	 
	 	 	 	 	 	 
	CHAPTER IX
	 	DESIGNATION OF BENEFICIARY	 	 	24	 
	9.01
	 	Beneficiary Designation; Election of Non-Spouse Beneficiary	 	 	24	 
	9.02
	 	Priority If No Designated Beneficiary	 	 	25	 
	 
	 	 	 	 	 	 
	CHAPTER X
	 	TOP-HEAVY PROVISIONS	 	 	25	 
	10.01
	 	Provisions Will Control	 	 	25	 
	10.02
	 	Definitions	 	 	25	 
	10.03
	 	Minimum Accrued Benefit	 	 	28	 
	10.04
	 	Adjustment for Benefit Form Other Than Life Annuity	 	 	29	 
	10.05
	 	Nonforfeitability of Minimum Accrued Benefit	 	 	29	 
	10.06
	 	Minimum Vesting Schedules	 	 	29	 
	10.07
	 	Compensation Limitation	 	 	29	 
	 
	 	 	 	 	 	 
	CHAPTER XI
	 	AMENDMENT OF THE PLAN	 	 	30	 
	11.01
	 	Amendment by Employer	 	 	30	 
	11.02
	 	Conformance to Law	 	 	30	 
	11.03
	 	Merger, Consolidation, or Transfer	 	 	31	 
	 
	 	 	 	 	 	 
	CHAPTER XII
	 	TERMINATION OF THE PLAN	 	 	31	 
	12.01
	 	Right to Terminate	 	 	31	 
	12.02
	 	Termination Priorities	 	 	31	 
	12.03
	 	Reversion to Employer	 	 	32	 
	12.04
	 	Subsequent Benefit Payments	 	 	32	 
	 
	 	 	 	 	 	 
	CHAPTER XIII
	 	CLAIMS PROCEDURE	 	 	32	 
	13.01
	 	Written Claim	 	 	32	 
	13.02
	 	Claim Denial	 	 	32	 
	13.03
	 	Request for Review of Denial	 	 	33	 
	13.04
	 	Decision on Review	 	 	33	 
	13.05
	 	Additional Time	 	 	33	 






ii









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	CHAPTER XIV
	 	CONTRIBUTION AND BENEFIT LIMITS TO HIGH PAID EMPLOYEES	 	 	33	 
	14.01
	 	When Applicable	 	 	33	 
	14.02
	 	Limitations	 	 	33	 
	14.03
	 	Limitations if Plan Amended	 	 	34	 
	14.04
	 	Alternate Limitations	 	 	34	 
	 
	 	 	 	 	 	 
	CHAPTER XV
	 	MISCELLANEOUS PROVISIONS	 	 	35	 
	15.01
	 	Reversion of Assets	 	 	35	 
	15.02
	 	Equitable Adjustment	 	 	35	 
	15.03
	 	Reasonable Compensation	 	 	35	 
	15.04
	 	Indemnification	 	 	35	 
	15.05
	 	Protection From Loss	 	 	35	 
	15.06
	 	Protection From Liability	 	 	36	 
	15.07
	 	Adoption of Rules and Procedures	 	 	36	 
	15.08
	 	Assignment of Benefits	 	 	36	 
	15.09
	 	Mental Competency	 	 	36	 
	15.10
	 	Authentication	 	 	37	 
	15.11
	 	Not an Employment Contract	 	 	37	 
	15.12
	 	Appointment of Auditor	 	 	37	 
	15.13
	 	Uniform Treatment	 	 	37	 
	15.14
	 	Interpretation	 	 	37	 
	15.15
	 	Plural and Gender	 	 	37	 
	15.16
	 	Headings	 	 	37	 
	15.17
	 	Expenses	 	 	37	 
	15.18
	 	Prevention of Escheat	 	 	37	 
	15.19
	 	Special Provisions Respecting Military Service	 	 	38	 
	15.20
	 	Participation of Affiliated Employers	 	 	38	 
	 
	 	 	 	 	 	 
	CHAPTER XVI
	 	EGTRRA PROVISIONS	 	 	38	 
	16.01
	 	Adoption and Effective Date of Amendment	 	 	38	 
	16.02
	 	Supersession of Inconsistent Provisions	 	 	38	 
	16.03
	 	Increase in Compensation Limit	 	 	38	 
	16.04
	 	Modification of Top-Heavy Rules	 	 	39	 
	16.05
	 	Direct Rollovers of Plan Distributions	 	 	40	 







iii









 








INTRODUCTION




     The validity, construction, and all rights granted under this Plan and Trust will be governed,
interpreted, and administered by the laws of the United States under the Employee Retirement Income
Security Act of 1974 (ERISA, as it may be amended) and the Internal Revenue Code of 1986 (the
Internal Revenue Code, as it may be amended). However, regardless of the preceding, to the extent
that ERISA and/or the Internal Revenue Code do not preempt local law, the Plan and Trust will be
governed, interpreted, construed, and enforced according to the laws of the State of Wisconsin.



     If the U.S. Department of Labor or the Internal Revenue Service, or both, determines at any
time that this Plan does not meet these requirements or that it is being administered or
interpreted in a manner inconsistent with these requirements, the Employer may either make the
appropriate amendments or adjustments, or both, which may be retroactive, to correct the situation,
or terminate the Plan.



     If any provisions of the Plan and Trust are held to be invalid or unenforceable, the remaining
provisions will continue to be fully effective.




 









 








CHAPTER I




DEFINITIONS




     1.01 Unless the context requires otherwise, the capitalized terms defined below will have the
following meanings throughout this Plan when capitalized:




     (a) Accrued Benefit means a Participant’s Normal Retirement Benefit earned
under the Plan payable at a Participant’s Normal Retirement Date based on his Years of
Benefit Service and monthly Compensation up to the date for which the Accrued Benefit is
being determined.




     Unless otherwise provided under the Plan, each Section 401(a)(17) employee’s Accrued
Benefit under this Plan will be the greater of the Accrued Benefit determined for the
employee under (1) or (2) below:




     (1) the employee’s Accrued Benefit determined with respect to the benefit
formula applicable for the Plan Year beginning on or after January 1, 1994, as
applied to the employee’s total years of service taken into account under the Plan
for the purposes of benefit accruals, or




     (2) the sum of:




     a. the employee’s Accrued Benefit as of the last day of the last Plan
Year beginning before January 1, 1994, frozen in accordance with Section
1.401(a)(4)-13 of the regulations, and




     b. the employee’s Accrued Benefit determined under the benefit formula
applicable for the Plan Year beginning on or after January 1, 1994, as
applied to the employee’s years of service credited to the employee for the
Plan Years beginning on or after January 1, 1994, for purposes of benefit
accruals.




     A Section 401(a)(17) employee means an employee whose current Accrued Benefit
as of a date on or after the first day of the first Plan Year beginning on or after
January 1, 1994, is based on Compensation for a year beginning prior to the first
day of the first Plan Year beginning on or after January 1, 1994, that exceeded
$150,000.




     (b) Actuary is any person or firm selected by the Employer (as provided by
applicable law) to make calculations required by law or otherwise desired to be made under
the Plan. The Actuary is also responsible for calculating the Actuarial Equivalents
required by the Plan in accordance with generally accepted actuarial principles. An Actuary
may be removed by the Employer or resign at any time by written notice.




     (c) Actuarial Equivalent. Two benefits are said to be Actuarial Equivalents if
they have the same present value as determined by the Actuary in accordance with



 









 






generally accepted actuarial principles applied in a uniform and nondiscriminatory
manner. The actuarial assumptions to be used in determining Actuarial Equivalents are as
follows:




     (1) For purposes of the small amount cash-out provision of Section 8.01
(relating to amounts not in excess of $3,500, changing to $5,000 on January 1, 2002)
and for purposes of any lump sum payment which may become due because of the
pre-retirement death of the Participant, the actuarial assumptions to be used shall
be the “applicable mortality table” and the “applicable interest rate.” The term
“applicable mortality table” means the table prescribed by the IRS from time to time
under Section 417(e)(3) of the Code. The term “applicable interest rate” means the
annual rate of interest on 30-year Treasury securities as published by the IRS for
the second full calendar month preceding the calendar month that contains the
annuity starting date (distribution date). However, at any time on or after July 1,
1998, the single sum distribution payable under such small account cash-out
provision or because of the pre-retirement death of the Participant must be no less
than the single sum distribution calculated using the Unisex Pension 1984 Mortality
Table and an interest rate of 5.5%, based upon the Participant’s Accrued Benefit
under the Plan through June 30, 1997 and based upon the Participant’s age on the
annuity starting date (distribution date) or the date of death.




     (2) For purposes of any lump sum payment under the provisions of Section
8.03(d), excluding only any lump sum payment which may become due because of the
pre-retirement death of the Participant, the actuarial assumptions to be used shall
be the “applicable mortality table” and the “applicable interest rate,” as such
terms are defined in subsection (1) above.




     (3) For purposes of optional forms of payment, in circumstances other than
those covered by the special rules set forth in paragraphs (1) and (2) above, the
actuarial assumptions to be used are the Unisex Pension 1984 Mortality Table and
5.5% interest; provided, however, that in no event may the interest rate exceed the
PBGC rates in effect at the date of distribution.




     (4) For purposes of the benefit increase covered in Plan Section 4.03, the
actuarial assumptions to be used are the Unisex Pension 1984 Mortality Table and
5.5% interest; provided, however, that in no event may the interest rate exceed the
PBGC rates in effect at the date of distribution.




     (d) Affiliated Employer. Affiliated Employer means each corporation which is
included as a member of a controlled group with the Employer, and trades and businesses
whether or not incorporated, which are under common control by or with the Employer within
the meanings of Sections 414(b) and (c) of the Internal Revenue Code of 1986, or any
amendments thereof. Further, the term shall include any members of the same “affiliated
service group” within the meaning of Code Section 414(m) and any other entity required to be
aggregated with the Employer under Code Section 414(o).



2









 






     (e) Annuity Starting Date means the first day of the first period for which an
amount is payable as an annuity or in any other form, all as provided in Section 417(f) of
the Code and regulations thereunder.




     (f) Beneficiary is the person or entity designated in Chapter IX to receive any
death benefits of a Participant which become payable under the Plan.




     (g) Break in Service shall mean as to any Participant who, as of December 31,
1988 or earlier, had incurred a One Year Break in Service after termination of employment.
A One Year Break in Service means a Plan Year in which the Employee does not
complete an aggregate of more than 500 Hours of Service with the Employer or Affiliated
Employers.




     As to any Participant who, as of December 31, 1988 or earlier, has not incurred a Break
in Service under the rules then in existence, and as to terminations of employment on and
after January 1, 1989, a Break in Service shall be any subsequently ending and consecutive
five One Year Breaks in Service.




     Special provisions with respect to military service are contained in Section 15.19
hereof.




     (h) Code means the Internal Revenue Code of 1986, as amended and as it may be
amended.




     (i) Committee is the organization appointed by the Board of Directors of the
Employer (which may name itself as the Committee) for purposes of overseeing the
administration of the Plan, and performing any other duties specified in this Plan. A
Committee member may resign or be removed at any time by the Board of Directors of the
Employer by written notice. To assist it in its duties, the Committee may employ agents or
legal counsel.




     Any such Committee may in its regulations or by action delegate the authority to any
one or more of its members to take any action on behalf of the Committee and as to such
actions, no meetings or unanimous consent shall be required. The Committee may also act at
a meeting or by its unanimous written consent. A majority of the members of the Committee
shall constitute a quorum for the transaction of business and shall have full power to act
hereunder. All decisions shall be made by vote of the majority present at any meeting at
which a quorum is present, except for actions in writing without a meeting which must be
unanimous. The Committee may appoint a Secretary who may, but need not, be a member of the
Committee. The Committee may adopt such bylaws and regulations as it deems desirable for
the conduct of its affairs. Any absent Committee member, and any dissenting Committee
member who (at the time of the making of any decision by the majority) registers his dissent
in writing delivered at that time to the other Committee members, shall be immune to the
fullest extent permitted by law from any and all liability occasioned by or resulting from
the decision of the majority. All rules and decisions of the Committee shall be uniformly
and consistently applied to all persons in similar circumstances. The Committee shall be
entitled to rely upon the records of the Employer or any Affiliated Employer as to
information pertinent



3









 






to calculations or determinations made pursuant to the Plan. A member of the Committee
may not vote or decide upon any matter relating solely to himself or vote in any case in
which his individual right of claim to any benefit under the Plan is particularly involved.
If, in any case in which a Committee member is so disqualified to act, the remaining members
cannot agree, then, the President of the Employer will appoint a temporary substitute member
to exercise all of the powers of the disqualified member concerning the matter in which that
member is disqualified to act.




     In the event a dispute arises under the Plan and Trust, the Committee will be the
authorized agent for the service of legal process.




     (j) Compensation is the quotient of total wages, salaries, fees and other
amounts received for a particular Plan Year (without regard to whether or not an amount is
paid in cash) for personal services actually rendered in the course of employment by the
Participant from a Participating Employer to the extent that the amounts are includable in
gross income (or such Compensation paid or accrued for Plan Years prior to January 1, 1991),
and including any elective contributions not otherwise includable in income under a Code
Section 125 cafeteria plan or Section 401(k) plan, but excluding reimbursements or other
allowances, fringe benefits (cash and noncash, including, without limitation, any income
arising in connection with any stock options, restricted stock or other equity based
incentives relating to stock of the Employer), moving expenses, deferred compensation and
welfare benefits, divided by 12 (or the number of actual completed calendar months for
purposes of the first or last Plan Years of employment).




     Effective as of January 1, 2001, for Employees who are salespersons receiving any
commissions during the Plan Year, no more than $50,000 of Compensation while so employed (as
adjusted under Code Section 414(q)(1)(C); $54,480 in 1989, $56,990 in 1990, $60,535 in 1991,
$62,345 in 1992, $64,245 in 1993, and $66,000 in 1994, 1995 and 1996, and changing for 1997
to the limit represented in Code Section 414(q)(1)(B) which was $80,000, and as adjusted
thereafter) will be used for purposes of determining benefits under the Plan. This
restriction shall not apply to national account executives or sales employees with a
security code classification of 710.




     Notwithstanding any provision of the Plan to the contrary, prior to January 1, 1989,
“Compensation” will be determined under the terms of the Plan then in effect; provided,
however, that with respect to any Employee with an Hour of Service after December 31, 1988,
a special rule will apply. For any given Plan Year commencing on or after January 1, 1989,
if such Employee is not a “Highly Compensated Employee” (within the meaning of Code
Section 414(q)) during such Plan Year, then the five year average monthly Compensation will
be determined without regard to (i) the adjusted $50,000 limit provided above, and (ii) the
Compensation limitations that were applicable to salespersons under the terms of the Plan as
in effect prior to January 1, 1989, for each prior Plan Year during which the Employee was
not a Highly Compensated Employee.




4









 









     However, for any Plan Year beginning after December 31, 1988, Compensation in excess of
$200,000 (as adjusted as permitted under Code Section 401(a)(17) from time to time) shall be
disregarded.




     In addition to other applicable limitations set forth in the Plan, and notwithstanding
any other provision of the Plan to the contrary, for Plan Years beginning on or after
January 1, 1994, the annual Compensation of each employee taken into account under the plan
shall not exceed the OBRA ‘93 annual compensation limit. The OBRA ‘93 annual compensation
limit is $150,000, as adjusted by the Commissioner for increases in the cost of living in
accordance with Section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding 12 months,
over which compensation is determined (determination period) beginning in such calendar
year. If a determination period consists of fewer than 12 months, the OBRA ‘93 annual
compensation limit will be multiplied by a fraction, the numerator of which is the number of
months in the determination period, and the denominator of which is 12.




     For Plan Years beginning on or after January 1, 1994, any reference in this plan to the
limitation under Section 401(a)(17) of the Code shall mean the OBRA ‘93 annual compensation
limit set forth in this provision.




     If Compensation for any prior determination period is taken into account in determining
an Employee’s benefits accruing in the current Plan Year, the Compensation for that prior
determination period is subject to the OBRA ‘93 annual compensation limit in effect for that
prior determination period. For this purpose, for determination periods beginning before
the first day of the first Plan Year beginning on or after January 1, 1994, the OBRA ‘93
annual compensation limit is $150,000.




     However, for special rules with respect to the application of increases in Compensation
limits due to EGTRRA, reference is made to Section 16.03 of the Plan.




     (k) Date of Employment means:




     (1) the day on which the Employee performs his first Hour of Service on or
after the date on which he is employed by the Employer or an Affiliated Employer, or




     (2) the date on which the Employee performs his first Hour of Service on or
after the date on which he is re-employed following a Break in Service.




     (l) Disability is any impairment which arises before a Participant’s
termination of employment with the Employer or an Affiliated Employer which may be expected
to be of a long continued duration or which may be expected to result in death and which
prevents him from satisfactorily performing his duties with the Employer or an Affiliated
Employer. Determination of such Disability will be made by a physician selected by the
Committee.



5









 






     (m) Early Retirement occurs on the first day of any month coinciding with or
next following the Early Retirement Date of a Participant in which he incurs a Termination
of Employment, provided he has not then attained his Normal Retirement Date.




     (n) Early Retirement Date is the date on which the Participant has attained the
age of 60 and completed 5 years of Vesting Service.




     (o) Effective Date of the Plan is January 1, 1947. The Effective Date of this
amendment and restatement is January 1, 1998, unless otherwise provided herein.




     (p) Employee is any person employed directly by the Employer or an Affiliated
Employer and for whom the Employer or an Affiliated Employer pays Social Security taxes and
who in each case is not excluded by the provisions of Section 2.03 hereof relating to
collective bargaining employees. “Leased employees” as defined in Code Section 414(n) shall
not be eligible to participate in the Plan although it is recognized that such leased
employees, if any, must be treated as employees of the Employer or an Affiliated Employer
for purposes of certain nondiscrimination, coverage, and other rules under the Code. Also
excluded is any person who is classified by the Employer or an Affiliated Employer as other
than as an Employee, for the entire period of such classification, without regard to any
subsequent reclassification which may occur by operation of law or otherwise.




     It is recognized that the definition of an eligible “Employee” was significantly
expanded as to certain classes of Employees (the “Newly Included Group”) by amendment to
this Plan effective as of January 1, 1989. Notwithstanding any other provisions of this
Plan, individuals in the Newly Included Group shall have all past periods of service with
the Employer counted as Years of Eligibility and Vesting Service for purposes of this Plan.
Such past service shall also be counted as Years of Benefit Service for purposes of this
Plan, except for Years covered under another private defined benefit pension plan sponsored
by the Employer.




     (q) Employer is OshKosh B’Gosh, Inc. and any successor corporation by merger,
purchase, or otherwise.




     (r) Employment Year means a 12-month period following an Employee’s most recent
Date of Employment.




     (s) Hours of Service means any of the following hours (assuming a 190 hour
month for any Employee not employed on an hourly basis who works one hour during the month):




     (1) Each hour for which an Employee is paid, or entitled to payment, for the
performance of duties for the Employer. These hours will be credited to the
Employee for the computation period in which the duties are performed; and




     (2) Each hour for which an Employee is paid, or entitled to payment, by the
Employer on account of a period of time during which no duties are



6









 






performed (irrespective of whether the employment relationship has terminated)
due to vacation, holiday, illness, incapacity (including disability), layoff, jury
duty, military duty or leave of absence. No more than 501 Hours of Service will be
credited under this paragraph for a single computation period (whether or not the
period occurs in a single computation period). Hours under this paragraph will be
calculated and credited pursuant to Section 2530.200b-2 of the Department of Labor
Regulations which are incorporated herein by this reference; and




     (3) Each hour for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to by the Employer. The same Hours of Service will not be
credited both under (1) or (2) above, as the case may be, and under this definition
(3). These hours will be credited to the Employee for the computation period or
periods to which the award or agreement pertains rather than the computation period
in which the award, agreement, or payment is made.




     For purposes of determining whether a One Year Break in Service has occurred for
participation and vesting purposes, an employee who is absent from work (i) by reason of her
pregnancy, (ii) by reason of the birth of a child of the employee, (iii) by reason of the
placement of a child in connection with the adoption of the child by the Employee or (iv)
for purposes of caring for the child during the period immediately following the birth or
placement for adoption, Hours of Service shall be credited according to the following rule.
During the period of absence, the Employee shall be deemed to have completed the number of
hours that normally would have been credited but for the absence. If the normal work hours
are unknown, eight hours of service shall be credited for each normal workday during the
leave. Provided, however, the total number of Hours of Service required by this paragraph
to be treated as completed for any period shall not exceed 501. The Hours of Service to be
credited under this Section shall be credited in the year in which the absence begins if
such crediting is necessary to prevent a One Year Break in Service in that year or in the
following year.




     Hours of Service will also be credited for any individual considered an Employee under
Section 414(n).




     If records of employment with respect to an Employee’s service with the Employer before
the effective date of this restatement are insufficient to determine his exact Hours of
Service, the Committee will make reasonable estimates of said Hours of Service based on such
records of employment. Any such Hours of Service estimates will be made in a uniform,
nondiscriminatory manner and will be binding on all Employees.




     Hours of Service attributable to employment with the Employer and any Affiliated
Employer shall be counted for all purposes of this Plan, except for the determination of
Years of Benefit Service under Section 1.01(ii), which credits only Hours of Service accrued
while an Employee in the service of a Participating Employer.




     (t) Joint and Survivor Annuity is an annuity for the life of the Participant,
with a survivor annuity for the life of a Participant’s spouse which is 50% of the amount



7









 






of the annuity payable for the life of the Participant and which is the Actuarial
Equivalent of the Normal Form of Benefit.




     (u) Non-Vested or Forfeited means that portion of a benefit to which a
Participant would not be entitled under Section 7.02 if he incurred a Termination of
Employment.




     (v) Normal Form of Benefit is a benefit payable monthly for the life of a
Participant with no benefits payable to a Beneficiary upon the Participant’s death.




     (w) Normal Retirement Date is the first of the month coinciding with or next
following the Participant’s attainment of age 65. A Participant will be fully Vested at age
65.




     (x) Normal Retirement Benefit is the monthly benefit described in Section 4.01
payable beginning the first of the month following the Normal Retirement Date.




     (y) Participant is an Employee who has met the eligibility requirements of
Chapter II.




     (z) Participating Employer means the Employer and any Affiliated Employer
authorized by the Employer to participate in this Plan, by extending the same to such
Affiliated Employer’s eligible Employees.




     (aa) Plan means the OshKosh B’Gosh, Inc. Pension Plan as it may be amended from
time to time.




     (bb) Plan Administrator is OshKosh B’Gosh, Inc.




     (cc) Plan Year is January 1 to December 31.




     (dd) Termination of Employment of an Employee for purposes of the Plan shall be
deemed to occur upon his resignation, discharge, retirement, death, disability, failure to
return to active work at the end of an authorized leave of absence, or the authorized
extension or extensions thereof, failure to return to work when duly called following a
temporary layoff, failure to return from military service within the time prescribed by any
law protecting employment rights, or upon the happening of any other event or circumstance,
which, under the policy of the Employer or an Affiliated Employer, as in effect from time to
time, results in the termination of the employer/employee relationship.




     (ee) Trust means the OshKosh B’Gosh, Inc. Pension Trust as it may be amended
from time to time.




     (ff) Trustee is the person(s), corporation, or combination thereof, and any
duly appointed successor or successors, named as Trustee in the Trust document.



8









 






     (gg) Trust Fund is the total of contributions made to the Trust, increased by
profits, income, refunds, and other recoveries received, and decreased by losses and
expenses incurred, and benefits paid.




     (hh) Vested is that portion of an Accrued Benefit to which a Participant has a
nonforfeitable right.




     (ii) Year of Benefit Service for an Employee means a Plan Year during which he
completes at least 1,000 Hours of Service in the employ of a Participating Employer. In the
event that a Participant is not employed for the entire Plan Year, a partial Year of Benefit
Service will be earned as follows:



	 	 	 	 	 
	Number of Hours of Service	 	 
	During a Plan Year	 	Year of Benefit Service
	1,000 or more

	 	 	1.0	 
	900 but less than 1,000

	 	 	.9	 
	800 but less than 900

	 	 	.8	 
	700 but less than 800

	 	 	.7	 
	600 but less than 700

	 	 	.6	 
	500 but less than 600

	 	 	.5	 
	400 but less than 500

	 	 	.4	 
	300 but less than 400

	 	 	.3	 
	200 but less than 300

	 	 	.2	 
	100 but less than 200

	 	 	.1	 
	less than 100

	 	 	0	 







     Years of Benefit Service prior to January 1, 1984 will be determined according to the
provisions of the Plan in effect prior to January 1, 1984.




     Effective January 1, 1991, Employees at the Employer’s McEwen facility who become
Participants under Section 2.01 may earn a Year of Benefit Service or a partial Year of
Benefit Service under the above definition.




     (jj) Year of Eligibility Service is the Employment Year of an Employee,
provided he completes at least 1,000 Hours of Service during such Employment Year. For an
Employee who does not compete at least 1,000 Hours of Service in his Employment Year, a Year
of Eligibility Service is a Plan Year, starting with the Plan Year next following his Date
of Employment, during which he completes at least 1,000 Hours of Service.




     (kk) Year of Vesting Service is any Plan Year, starting with the Plan Year in
which an Employee is hired by the Employer or an Affiliated Employer during which such
Employee completes at least 1,000 Hours of Service.



9









 





CHAPTER II




ELIGIBILITY AND PARTICIPATION




     2.01 Eligibility. On and after January 1, 1989, each Employee of a Participating
Employer will become a Participant in the Plan the first of the month coincident with or next
following:




     (a) his attainment of at least age 21; and




     (b) his completion of one Year of Eligibility Service.



     Effective May 21, 1991, this Plan is merged with the OshKosh B’Gosh, Inc. McEwen Hourly
Employees’ Pension Plan (the “McEwen Plan”). Employees participating in the McEwen Plan on May 20,
1991, will become Participants in this Plan on May 21, 1991. Otherwise, Employees at the McEwen
facility will become Participants in this Plan as provided in this Section 2.01.



     2.02 Re-Employment. Notwithstanding the provisions of Section 2.01, any Participant
who terminated employment with a Participating Employer after the effective date of this
restatement, and is later rehired, shall again become eligible to become a Participant on his most
recent Date of Employment.



     2.03 Exclusion of Collective Bargaining Employees. An Employee who is covered by a
collective bargaining agreement to which a Participating Employer is a party will not be eligible
to participate in this Plan unless that collective bargaining agreement specifically provides for
coverage of such Employees under this Plan.



     2.04 Change in Participant Status. In the event a Participant is no longer a member
of the eligible class of Employees and becomes ineligible to participate, such employee will
participate immediately upon returning to the eligible class of Employees.



     2.05 Employees Not in Eligible Class. In the event an employee who is not a member of
the eligible class of Employees becomes a member of the eligible class, such employee will
participate immediately if such employee has satisfied the minimum age and service requirements and
would have otherwise previously become a Participant.



CHAPTER III




CONTRIBUTIONS




     3.01 Employer Contributions. Upon advice from the Actuary, the Participating
Employers will contribute from time to time amounts sufficient to fund the benefits under the Plan
and Trust. Such contributions will be paid over to the Trustees of the Trust Fund. To the extent
any contributions are not deductible under Code Section 404, such contributions shall be returned
to the Participating Employers.



10









 





     3.02 Funding Policy. In order to implement and carry out the provisions of the Plan
and finance the benefits under the Plan, the Employer will establish and maintain a funding policy
with respect to the Trust Fund in a manner consistent with applicable law.



     3.03 Employee Contributions. Employee contributions are not permitted under this
Plan.



CHAPTER IV




RETIREMENT BENEFITS




     4.01 Normal Retirement Benefit.




     (a) A Participant who retires from a Participating Employer on his Normal Retirement
Date is entitled to a monthly Normal Retirement Benefit, payable in the Normal Form of
Benefit, in an amount equal to the sum of 1% of the Participant’s five-year average monthly
compensation (the average of any five consecutive Plan Years or if the actual number of such
Years is less than five, the average based on the number of completed months, which produce
the highest average) multiplied by his Years of Benefit Service.




     (b) A Participant who terminates from employment before January 1, 1992, and who was
transferred by the Employer from employment covered by another pension plan of the Employer
to employment covered by this Plan, will have his retirement benefits calculated based on
his Years of Benefit Service earned after his date of transfer.




     (c) A Participant who terminates on or after January 1, 1992, but before January 1,
1993, and who was transferred by the Employer from employment covered by another pension
plan of the Employer to employment covered by this Plan, will have his retirement benefits
determined as follows: the Normal Retirement Benefit will be the greater of the amount
determined under paragraph (a) of this Section 4.01 (based on his Years of Benefit Service
earned after his date of transfer) or an amount equal to the product of (1) times (2), with
such product reduced by (3), as follows:




     (1) the unit benefit (e.g., the dollar amount that is multiplied by Years of
Benefit Service), as of the Employee’s Termination of Employment from this Plan,
payable from the plan under which the Employee was covered prior to the transfer;




     (2) the Employee’s total Years of Benefit Service (including service under the
plan which the Employee was covered prior to the transfer);




     (3) the actual benefit payable from the plan under which the Employee was
covered prior to the transfer.




     (d) A Participant who terminates from employment on or after January 1, 1993, and who,
before January 1, 1989, was transferred by the Employer from



11









 






employment covered by another pension plan of the Employer to employment covered by
this Plan, will have his retirement benefits calculated based on all of his Years of Benefit
Service earned including employment covered by the other pension plan.




     (e) A Participant who terminates on or after January 1, 1993, and who, on or after
January 1, 1989, was transferred by the Employer from employment covered by another pension
plan of the Employer to employment covered by this Plan, will have his retirement benefits
determined under paragraph (c) of this Section 4.01.




     (f) The retirement benefits under this Plan of an Employee who is transferred by the
Employer from employment covered by this Plan to employment covered by another pension plan
of an Affiliated Employer, will be calculated up to his date of transfer.




     (g) Effective May 21, 1991, this Plan and the McEwen Plan are merged. Any Accrued
Benefit earned under the terms of the McEwen Plan before May 21, 1991, shall be payable
under this Plan. The retirement benefits under this Plan applicable to Employees at the
Employer’s McEwen facility will be calculated based on Years of Benefit Service on or after
January 1, 1991. For the Plan Year ending December 31, 1991, such Employees shall accrue a
benefit equal to the greater of the benefit accrued under this Plan (including all service
on or after January 1, 1991) or the benefit accrued under the McEwen Plan between January 1,
1991 and May 20, 1991. For purposes of calculating a Participant’s five year average
monthly compensation for any Plan Year before January 1, 1991, this Plan will take into
account compensation earned under the terms of the McEwen Plan then in effect.



     4.02 Early Retirement. A Participant who is eligible for Early Retirement may retire
from the employ of a Participating Employer at any time prior to his Normal Retirement Date. Such
Participant may elect to begin receiving his early retirement benefit on or after his Early
Retirement Date, subject to the provisions of Section 8.01. For purposes of this Section 4.02, the
amount of a Participant’s early retirement benefit is equal to his Accrued Benefit. Such benefit
will be reduced to its Actuarial Equivalent for each month that benefits commence before Normal
Retirement Date.



     4.03 Late Retirement. If a Participant remains in the employ of a Participating
Employer after his Normal Retirement Date, unless an election to the contrary is made under Section
8.01, his benefit payments will begin no later than his Required Beginning Date, as defined in
Section 8.01. The amount of the benefit payable when such Participant actually retires from the
employ of a Participating Employer will be calculated in the same manner as the Normal Retirement
Benefit including Compensation and Years of Benefit Service after the Participant’s Normal
Retirement Date. Such benefit will be offset by the Actuarial Equivalent of any benefit previously
paid under this Plan to such Participant.



     However, if a Participant remains in the employ of a Participating Employer after his Normal
Retirement Date, such Participant, upon his subsequent retirement, shall have the value of his
benefit in the Normal Form increased by the Actuarial Equivalent of the monthly benefit in the
Normal Form to which he would have been entitled had he not continued in employment, for any month
after his Normal Retirement Date until the date that benefits actually commence. In



12









 




the event of such Participant’s death while continuing in the employ of a Participating
Employer after his Normal Retirement Date, the Actuarial Equivalent value of the additional benefit
that would have been provided under the preceding sentence shall be added to the value of his
benefit for purposes of any death benefit that may be payable under Chapter VI or VIII.




     4.04 Non-Duplication of Benefit. Under no circumstances will the benefit of any
Employee who has incurred a Termination of Employment and is later rehired by a Participating
Employer be greater than the benefit he would have received if the Termination of Employment had
not occurred and he had been continuously employed. Upon such Participant’s later retirement or
Termination of Employment, the Participant’s Normal Retirement Benefit shall be reduced by the
Actuarial Equivalent of any benefit previously paid under this Plan to such Participant.



     4.05 Re-Employment. If a former Employee who is receiving benefits from the Plan and
Trust returns to the employ of the Employer or an Affiliated Employer, his benefit payments shall
continue uninterrupted.



CHAPTER V




BENEFIT LIMITATIONS




     5.01 Definitions. For purposes of this Chapter V, the capitalized terms defined below
will have the following meaning when capitalized:



     Annual Additions means the total of the following amounts, if any, which are allocated
to the Combined Accounts of a Participant:




     (a) Employer contributions (excluding Employer contributions arising from an award of
back pay by agreement with the Employer or by court order);




     (b) Amounts forfeited by non-Vested previous Participants;




     (c) Non-deductible voluntary Employee contributions; and




     (d) Any amount added to an individual medical account as defined in Section 415(e)(2)
of the Code which is part of a pension or annuity plan of the Employer for the Participant
(even if not in a defined contribution plan).



     For purposes of determining Annual Additions, a rollover contribution from an IRA of a
Participant, or from his account in the qualified retirement plan of his previous employer will not
be included.



     Average Compensation of a Participant is his Total Compensation during the three
consecutive Limitation Year period in which he earned a Year of Vesting Service and which produces
the highest average.



13









 





     Combined Accounts means the total of all accounts of a Participant in all of the
Defined Contribution Plans of the Employer.



     Defined Benefit Plan is a retirement plan which does not provide for benefits from an
individual account of a Participant, but rather such benefits are based on a benefit formula
provided by the Plan.



     Defined Contribution Plan is a retirement plan which provides for an individual
account for each Participant and for benefits based entirely on the balance of that account. The
account balance is usually derived from contributions, income, expenses, market value increases or
decreases, and sometimes non-Vested (Forfeited) amounts from Participants who terminate employment
before retirement.



     Employer means the employer that adopts this Plan. All members of a controlled group
of corporations (as defined in Section 414(h) as modified by Section 415(h) of the Code), all
trades or businesses (whether or not incorporated) under common control (as defined by Section
414(c) as modified by Section 415(h) of the Code), or all members of an affiliated service group
(as defined in Section 414(m) of the Code), will be considered a single employer for the purposes
of applying the limitations of this Chapter.



     Limitation Year is the Plan Year.



     Total Compensation includes a Participant’s earned income, wages, salaries, and fees
for professional service and other amounts received for personal services actually rendered in the
course of employment with an Employer maintaining the plan (including but not limited to,
commissions paid salesmen, compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips and bonuses) and excluding the following:




     (a) Employer contributions to a plan of deferred compensation which are not included in
the gross income of the Employee for the taxable year in which contributed, or on behalf of
an Employee to a simplified employee pension plan to the extent such contributions are
deductible by the Employee, or any distributions from a plan of deferred compensation;




     (b) Amounts realized from the exercise of a non-qualified stock option, or when
restricted stock (or property) held by an Employee either becomes freely transferable or is
no longer subject to a substantial risk of forfeiture;




     (c) Amounts realized from the sale, exchange or other disposition of stock acquired
under a qualified stock option; and




     (d) Other amounts which receive special tax benefits, or contributions made by the
Employer (whether or not under a salary reduction agreement) towards the purchase of a
403(b) annuity contract (whether or not the contributions are excludable from the gross
income of the Employee). Notwithstanding the above definition, from and after January 1,
1998, Total Compensation shall include any elective deferral contributions (as defined in
Code Section 402(g)(3)) and any amounts contributed or deferred by the Employer at the
election of the Participant which are not included in the



14









 









gross income of the Participant by reason of Code Section 125 or 457, and, from and
after January 1, 2001, by reason of Code Section 132(f).



     5.02 General Limitations. Under no circumstances will the total annual benefits
(which, for purposes of this Chapter means benefits payable in the form of a straight life annuity,
without ancillary benefits, or if payable in some other form, the Actuarial Equivalent (computed
using an interest rate of 5%) of such form) derived from Employer contributions and payable under
all Combined Plans to a Participant who retires at or after the Social Security Retirement Age (as
defined in Code Section 415(b)(8)) exceed the lesser of the following for any Limitation Year:




     (a) $90,000 (the “Dollar Limitation”) (effective on January 1, 1988, and each January 1
thereafter, the $90,000 limitation above will be automatically adjusted to the new dollar
limitation determined by the Commissioner of Internal Revenue for that calendar year. The
new limitation will apply to Limitation Years ending within the calendar year of the date of
the adjustment.)




     (b) 100% of his Average Compensation (as defined in Section 5.01) (the “Compensation
Limitation”).



     If the annual benefit commences after the Social Security Retirement Age, the benefit may not
exceed the Actuarial Equivalent of a single life annuity equal to the Dollar Limitation commencing
on the Participant’s Social Security Retirement Age. To determine Actuarial Equivalence after the
Social Security Retirement Age, in the preceding sentence, an interest rate assumption of 5% will
be used.



     If the annual benefit commences before a Participant’s attainment of his Social Security
Retirement Age, the Dollar Limitation applicable to such benefit shall be reduced to an amount
which is equal to a single life annuity commencing at the same time which is the Actuarial
Equivalent of a single life annuity equal to the Dollar Limitation commencing on the Participant’s
Social Security Retirement Age.



     Notwithstanding the above, if the Participant was a Participant in a plan in existence on July
1, 1982, the maximum permissible amount shall not be less than the Participant’s accrued benefit as
of September 30, 1983.



     Notwithstanding the foregoing provisions of this Section 5, if the maximum limitations on
retirement benefits, with respect to any person who was a Participant prior to January 1, 1987 and
whose retirement benefit (determined without regard to any changes in the Plan after May 6, 1986
and without regard to cost-of-living adjustments occurring after December 31, 1986) exceeds the
limitations set forth in this Section, then, for purposes of such Section and Section 415(b) and
(e) of the Code, the Dollar Limitations with respect to such Participant shall be equal to such
Participant’s retirement benefit as of December 31, 1986; provided that such Participant’s
retirement benefit did not exceed the maximum limitation as in effect for all the Plan Years prior
to January 1, 1987.



     Regardless of anything to the contrary, the limitations described in Section 5.02(a) and (b)
above will not apply if the annual benefits of a Participant under all Combined Defined



15









 




Benefit Plans do not exceed $10,000 in the Plan Year or any prior Plan Year, and if he has
never been a Participant in any Defined Contribution Plan of the Employer.




     5.03 Less Than 10 Years. If the annual benefit commences when the Participant has
completed less than ten years of Vesting Service with the Employer, the limitations described in
Section 5.02 will be reduced by 10% for each Year of Vesting Service less than ten.



     5.04 Limitations if Participant in Other Plan(s). If a Participant is also a
Participant in a Defined Contribution Plan (or Plans) maintained by the Employer, the decimal
equivalent of the sum of the fractions determined as follows for all Defined Benefit Plans and
Defined Contribution Plans maintained by the Employer in which he participates shall not exceed 1.0
for any Limitation year:




     (a) A defined benefit fraction, the numerator being the projected total annual benefits
of the Participant under all Employer-sponsored Defined Benefit Plans (whether or not
terminated), and the denominator being the lesser of:




     (1) the product of 1.25 multiplied by $90,000 (or, if permitted by applicable
law, such other dollar amount as is specified annually by the Secretary of the
Treasury, or his delegate); or




     (2) the product of 1.4 multiplied by the Participant’s Average Compensation.




     (b) A defined contribution fraction, the numerator being the sum of the actual Annual
Additions to the Participant’s Combined Accounts under all Defined Contribution Plans
(whether or not terminated) maintained by the Employer for the current and all prior
Limitation Years, and the denominator being the sum of the lesser of the following amounts
determined for such Limitation Year and all prior Limitation Years of the Participant’s
service with the Employer (regardless of whether a Defined Contribution Plan was maintained
by the Employer):




     (1) the product of 1.25 multiplied by $30,000 (or, if greater, one-fourth of
the Dollar Limitation in effect under Code Section 415(b)(1)(A)); or




     (2) the product of 1.4 multiplied by 25% of his Total Compensation for such
Limitation Year.



     In the event the projected annual benefits of a Participant under all Defined Benefit Plans
cause the total of the fractions determined under (a) and (b) above to exceed 1.0, the annual
benefits under the Employer-sponsored Defined Benefit Plans will be reduced to the extent necessary
so that the sum of the defined benefit plan fraction and defined contribution plan fraction do not
exceed 1.0.



     From and after January 1, 2000, the special limitations set forth in this Section 5.04 shall
no longer apply.



16









 





     5.05 Applicable Mortality Table. This Section shall apply to distributions with
Annuity Starting Dates on and after December 31, 2002. Notwithstanding any other Plan provisions
to the contrary, the applicable mortality table used for purposes of adjusting any benefit or
limitation under Code Section 415(b)(2)(B), (C) or (D) in this Chapter V is the table prescribed in
Revenue Ruling 2001-62.



CHAPTER VI




PRE-RETIREMENT DEATH BENEFITS




     6.01 Death Benefits. Except as provided in Section 6.03 and Chapter VIII, any death
benefits payable under the Plan and Trust will be according to the provisions of this Section 6.01.



     The Beneficiary of any Participant (including former Participants with deferred vested
benefits) who dies before his Annuity Starting Date will be entitled to a lump sum death benefit,
payable as soon as administratively possible after the Participant’s death, equal to the present
Actuarial Equivalent value (as determined by the Actuary) of the Accrued Benefit of such
Participant on his date of death.



     6.02 Death Benefit Limitations. Except as provided in Sections 6.01, 6.03 and Chapter
VIII, the Beneficiary or spouse of any Participant who dies will not be entitled to any death
benefit under the Plan and Trust.



     6.03 Pre-Retirement Death Benefit for Surviving Spouse; Post-Retirement Death
Benefits. Unless the Participant has designated someone other than his spouse as the primary
Beneficiary under the provisions of Section 9.01, the death benefit payable to the spouse of a
Participant (including a former Participant with deferred vested benefits) who dies before his
Annuity Starting Date will be in the form of a single life annuity for the life of such spouse
which is the Actuarial Equivalent of the Accrued Benefit of such Participant. The surviving spouse
may elect to commence payment of such annuity within a reasonable period after the Participant’s
death. Absent an election by the surviving spouse, payment of such annuity will start on the later
of the Participant’s date of death or the date when the Participant would have attained age 62.
The surviving spouse may also elect the lump sum death benefit specified in Section 6.01 above in
lieu of such annuity. If the Participant dies after benefits have commenced under one of the forms
specified in Chapter VIII, the death benefits payable, if any, will be in accordance with the form
of payment then in effect.



CHAPTER VII




OTHER TERMINATION AND VESTING




     7.01 Full Vesting Dates. Upon the date of a Participant’s death, retirement or
incurrence of a Disability, he will be fully Vested in his Accrued Benefit.



17









 





     7.02 Vesting Schedule. A Participant who has completed at least 5 Years of Vesting
Service and who terminates his employment with the Employer or an Affiliated Employer for reasons
other than death, Disability, or retirement will be fully Vested in his Accrued Benefit. If a
Participant terminates his employment with the Employer or an Affiliated Employer for reasons other
than death, Disability, or retirement before he has completed 5 Years of Vesting Service, he will
not be Vested in any benefit in this Plan and his entire Accrued Benefit will be forfeited.



     7.03 Commencement of Benefits. The payment of any Vested Accrued Benefit determined
under this Chapter will start on the date specified in Section 8.01, and will be adjusted for
either or both of the following reasons:




     (a) If payments start on a date prior to the Participant’s Normal Retirement Date, such
payments will be adjusted as specified in Section 4.02;




     (b) If payments are in a form other than the Normal Form of Benefits, such payments
will have an Actuarial Equivalent adjustment made.



     7.04 Forfeiture. Any Non-Vested Accrued Benefit determined under this Chapter, or any
other benefit forfeited by a Participant who dies but is not eligible for death benefits under the
Plan and Trust will be retained in the Trust Fund and will be used to reduce the future
Participating Employer contributions to the Plan.



     7.05 Resumption of Participation. If an Employee returns to the employ of a
Participating Employer following a Break in Service, his Years of Vesting Service and Years of
Benefit Service which occurred before such Break in Service will be aggregated with his Years of
Vesting Service and Years of Benefit Service occurring after such Break in Service if he also meets
either of the following requirements:




     (a) If he was Vested in some or all of his Accrued Benefit under this Plan at the time
his Break in Service occurred; or




     (b) Even if he was not Vested in his Accrued Benefit at the time of his Break in
Service, if the number of consecutive One Year Breaks in Service is less than the Years of
Vesting Service which occurred before such Break in Service.



CHAPTER VIII




PAYMENT OF BENEFITS




     8.01 Commencement of Benefits. Unless a Participant elects in writing to further
defer the starting date of any benefit payable under the Plan and Trust, benefits must begin to be
paid within 60 days after the later of:




     (a) the last day of the Plan Year in which he attains age 65; or



18









 






     (b) the last day of the Plan Year in which he incurs a Termination of Employment.



     Effective January 1, 2000, and notwithstanding any other provisions of this Plan but subject
to the special rules pertaining to 5% owners and certain other Participants set forth below, any
benefit payable to a Participant shall commence no later than the “Required Beginning Date” for a
Participant under Code Section 401(a)(9), as amended by the Small Business Job Protection Act of
1996, which is the April 1st of the calendar year following the later of (i) the calendar year in
which the Participant attains age 70 1/2, or (ii) the calendar year in which the Participant retires
or terminates service with the Employer or an Affiliated Employer.



     However, any benefit payable to a Participant who is a more than 5% owner of the “employer” as
defined in Code Section 416 with respect to the Plan Year ending in the calendar year in which such
Participant attains age 70 1/2 shall commence no later than the April 1st of the calendar year
following the calendar year in which such Participant attains age 70 1/2, even if he has not separated
from service as of such date.



     Further, any Participant continuing in the service of the Employer or an Affiliated Employer
who attained age 70 1/2 after December 31, 1996 but before January 1, 2000 shall have an option to
elect either to begin receiving benefits starting no later than April 1st of the calendar year
following the calendar year in which such Participant attains age 70 1/2 or to defer the commencement
thereof (and, if applicable, to stop the current receipt of benefits) until retirement or
termination of service. Any distribution of benefits that was being made to such a Participant in
the Joint and Survivor Annuity form may be stopped under the preceding sentence only if consent of
the person who was such Participant’s spouse when the benefit payments initially commenced is
obtained and such consent acknowledges the effect of the election to stop. Any commencement or
recommencement of benefits starting after retirement or termination of service of a Participant who
has elected to defer (and, if applicable to stop the current receipt of benefits) shall be subject
to all of the provisions of Section 8.02 dealing with the mandatory Joint and Survivor Annuity form
of distribution for married Participants and the single life annuity form for single Participants
and the circumstances under which some other form of distribution may be elected.



     Any Participant who incurs a Termination of Employment and who later attains the age specified
as an Early Retirement Date may elect in writing to the Committee to have his benefit payments
begin at any time following such age. Once such election is made, benefit payments must begin
within 60 days after the date specified in the election.



     Notwithstanding any provision of the Plan to the contrary, if the Vested portion of the
Accrued Benefit of a Participant who terminates, retires, or dies does not exceed $3,500, or, from
and after January 1, 2002, $5,000, the Vested Accrued Benefit shall be distributed in the form of a
single sum cash distribution as soon as practicable following the Participant’s termination.



     If a distribution is one to which Sections 401(a)(11) and 417 of the Internal Revenue Code do
not apply, such distribution may commence less than 30 days after the notice required under Section
1.411(a)-11(c) of the Income Tax Regulations is given, provided that:



19









 






     (a) the Plan Administrator clearly informs the Participant that the Participant has a
right to a period of at least 30 days after receiving the notice to consider the decision of
whether or not to elect a distribution (and, if applicable, a particular distribution
option), and




     (b) the Participant, after receiving the notice, affirmatively elects a distribution.



     8.02 Automatic Joint and Survivor Benefits. Unless an optional form of benefit is
selected pursuant to a qualified election within the 90-day period ending on the Annuity Starting
Date, a married Participant’s Vested Accrued Benefit will be paid in the form of a Joint and
Survivor Annuity. A qualified election is a waiver of a Joint and Survivor Annuity. The waiver
must be in writing and must be consented to by the Participant’s spouse. The spouse’s consent to a
waiver must acknowledge the designation of a specific alternative beneficiary in writing signed by
the spouse and witnessed by a Plan representative or notary public. Notwithstanding this consent
requirement, if the Participant establishes to the satisfaction of a Plan representative that such
written consent may not be obtained because there is no spouse or the spouse cannot be located,
waiver will be deemed a qualified election. Any consent necessary under this provision will be
valid only with respect to the spouse who signs the consent, or in the event of a deemed qualified
election, the designated spouse. Additionally, a revocation of a prior waiver may be made by a
Participant without the consent of the spouse at any time before the commencement of benefit. The
number of revocations shall not be limited.



     In the case of a Joint and Survivor Annuity as described above, the Committee shall provide
each Participant within a reasonable period under applicable regulations (currently, not less than
30 and no more than 90 days) prior to the Annuity Starting Date a written explanation of:




     (a) the terms and conditions of a Joint and Survivor Annuity;




     (b) the Participant’s right to make and the effect of an election to waive the Joint
and Survivor Annuity form of benefit;




     (c) the rights of a Participant’s spouse; and




     (d) the right to make, and the effect of, a revocation of a previous election to waive
the Joint and Survivor Annuity. If the Participant, after having received the above written
explanation, affirmatively elects a form of distribution (with spousal consent if the form
is other than the Joint and Survivor Annuity), the Plan may treat such election as a waiver
of any remaining portion of the 30-day notice period, provided the distribution does not
commence before the expiration of a 7-day period beginning the day after the Participant has
received the above written notice and other requirements of applicable regulations are
satisfied.



     Unless an optional form of benefit is selected, an unmarried Participant’s Vested Accrued
Benefit will be paid in the form of a single life annuity under Section 8.03.



20









 





     8.03 Optional Forms of Payment. Except where a Joint and Survivor Annuity is required
by Section 6.01 or Section 8.02, all benefit payments will be made in the Normal Form of Benefit
unless the Participant (or his Beneficiary, if he is deceased) selects in writing one, or a
combination of, the following optional forms of benefits:




     (a) life income annuity;




     (b) a joint and survivor annuity providing a survivor benefit to any Beneficiary which
is at least 50% but not greater than 100% of the Participant’s benefit;




     (c) a term certain annuity for 120 months, or 180 months;




     (d) a lump sum payment, but only if Termination of Employment is due to retirement,
death, or Disability.




     (e) if the Participant was employed at the McEwen facility, then he or his Beneficiary
may select a life annuity with 120 or 180 monthly benefits guaranteed.



     Any benefit payable in a form other than the Normal Form of Benefit will be the Actuarial
Equivalent of the benefit which would have been payable in the Normal Form of Benefit.



     Any annuity contracts which may be purchased to provide Plan benefits will be nontransferable.



     8.04 Incidental Death Benefits. Regardless of any statement (with the exception of
Section 8.02) to the contrary, the ability of any Participant or any Beneficiary to select the
timing and method of a distribution option will be limited by the following provisions:




     (a) If the Participant’s entire interest is to be distributed in other than a lump sum,
then the amount to be distributed each year must be at least an amount equal to the quotient
obtained by dividing the Participant’s entire interest by the life expectancy of the
Participant or joint and last survivor expectancy of the Participant and designated
Beneficiary. Life expectancy and joint and last survivor expectancy are computed by the use
of the return multiples contained in Section 1.72-9 of the Income Tax Regulations. For
purposes of this computation, a Participant’s life expectancy may be recalculated no more
frequently than annually, however, the life expectancy of a nonspouse Beneficiary may not be
recalculated. If the Participant’s spouse is not the designated Beneficiary, the method of
distribution selected must satisfy the minimum death incidental benefit requirements of
Section 1.401(a)(9)-2 of the regulations which are incorporated herein by this reference.




     (b) If the Participant dies after distribution of his or her interest has commenced,
the remaining portion of such interest will continue to be distributed at least as rapidly
as under the method of distribution being used prior to the Participant’s death.




     (c) If the Participant dies before distribution of his or her interest commences, the
Participant’s entire interest will be distributed no later than five years after the



21









 






Participant’s death except to the extent that an election is made to receive
distribution in accordance with (1) or (2) below:




     (1) If any portion of the Participant’s interest is payable to a designated
Beneficiary, distributions may be made in substantially equal installments over the
life or life expectancy of the designated Beneficiary commencing no later than one
year after the Participant’s death;




     (2) If the designated Beneficiary is the Participant’s surviving spouse, the
date distributions are required to begin in accordance with (1) above shall not be
earlier than the date on which the Participant would have attained age 70 1/2, and, if
the spouse dies before payments begin, subsequent distributions shall be made as if
the spouse had been the Participant.




     (d) For purposes of 8.04(c) above, payments will be calculated by use of the return
multiples specified in Section 1.72-9 of the regulations. Life expectancy of a surviving
spouse may be recalculated annually, however, in the case of any other designated
Beneficiary, such life expectancy will be calculated at the time payment first commences
without further recalculation.




      (e) For purposes of this Section 8.04, any amount paid to a child of the Participant
will be treated as if it had been paid to the surviving spouse if the amount becomes payable
to the surviving spouse when the child reaches the age of majority.



     8.04A New Minimum Distribution Regulations. With respect to distributions under the
Plan made on or after April 1, 2001 for calendar years beginning on or after January 1, 2001, the
Plan will apply to minimum distribution requirements of Section 401(a)(9) of the Code in accordance
with the regulations under Section 401(a)(9) that were proposed on January 17, 2001 (the 2001
Proposed Regulations), notwithstanding any provision of the Plan to the contrary. If the total
amount of required minimum distributions made to a Participant for 2001 prior to April 1, 2001 are
equal to or greater than the amount of required minimum distributions determined under the 2001
Proposed Regulations, then no additional distributions are required for such Participant for 2001
on or after such date. If the total amount of required minimum distributions made to a Participant
for 2001 prior to April 1, 2001 are less than the amount determined under the 2001 Proposed
Regulations, then the amount of required minimum distributions for 2001 on or after such date will
be determined so that the total amount of required minimum distribution for 2001 is the amount
determined under the 2001 Proposed Regulations. This amendment shall continue in effect until the
last calendar year beginning before the effective date of the final regulations under Section
401(a)(9) of the Code or such other date as may be published by the Internal Revenue Service.



     8.05 Transfers. The Plan will not accept the transfer into the Trust Fund of IRA’s or
distributions to Participants from other retirement plans.



     8.06 No Other Benefits. Except as provided in Chapter XII, no payments shall be made
from the Plan and Trust to a Participant except for retirement, death, Disability, or other
Termination of Employment.



22









 





     8.07 Direct Rollover.




     (a) This Section applies to distributions made on or after January 1, 1993.
Notwithstanding any provision of the Plan to the contrary that would otherwise limit a
Distributee’s election under this Section, a Distributee may elect, at the time and in the
manner prescribed by the Plan Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a
Direct Rollover.




     (b) Definitions




     (i) Eligible Rollover Distribution: An Eligible Rollover Distribution is any
distribution of all or any portion of the balance to the credit of the Distributee,
except that an Eligible Rollover Distribution does not include:




     1) any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or
life expectancy) of the Distributee or the joint lives (or joint life
expectancies) of the Distributee and the Distributee’s designated
Beneficiary, or for a specified period of ten years or more;




     2) any distribution to the extent such distribution is required under
Section 401(a)(9) of the Code;




     3) the portion of any distribution that is not includable in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to Employer securities);




     4) returns of Section 401(k) elective deferrals that are returned as a
result of the Section 415 limitations;




     5) corrective distributions of excess contributions, excess deferrals,
and excess aggregate contributions, together with the income allocable to
these corrective distributions;




     6) loans treated as distributions under Section 72(p) and not excepted
by Section 72(p)(2);




     7) loans in default that are deemed distributions;




     8) a distribution less than $200;




     9) for distribution made from and after December 31, 1999, any amount
which is a hardship distribution under Section 401(K)(2) of the Code; and




     10) similar items designated by the IRS in revenue rulings, notices,
and other guidance of general applicability.



23









 






     (ii) Eligible Retirement Plan: An Eligible Retirement Plan is an individual
retirement account described in Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in Section 401(a) of the
Code, that accepts the Distributee’s Eligible Rollover Distribution. However, in
the case of an Eligible Rollover Distribution to the surviving spouse, an Eligible
Retirement Plan is an individual retirement account or individual retirement
annuity.




     (iii) Distributee: A Distributee includes an Employee or former Employee. In
addition, the Employee’s or former Employee’s surviving spouse and the Employee’s or
former Employees’ spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in Section 414(p) of the Code, are
Distributees with regard to the interest of the spouse or former spouse.




     (iv) Direct Rollover: A Direct Rollover is a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.



CHAPTER IX




DESIGNATION OF BENEFICIARY




     9.01 Beneficiary Designation; Election of Non-Spouse Beneficiary. Each Participant
may name or change the name of his Beneficiary(ies) who will receive any death benefits payable
under Chapters VI or VIII of the Plan. However, any designation by a married Participant of
someone other than his spouse as the primary Beneficiary for any pre-retirement death benefit
payable under Section 6.01 of the Plan is an election to waive the pre-retirement surviving spouse
death benefit under Section 6.03 and must be made by the Participant in writing during the election
period described below and shall not be effective unless:




     (a) the Participant’s spouse consents in writing to the election;




     (b) the election designates a specific alternate Beneficiary, including any class of
Beneficiaries or any contingent Beneficiaries, which may not be changed without spousal
consent (or the spouse expressly permits designations by the Participant without any further
spousal consent);




     (c) the spouse’s consent acknowledges the effect of the election; and




     (d) the spouse’s consent is witnessed by a plan representative or notary public.



     If it is established to the satisfaction of a plan representative that such written consent
may not be obtained because there is no spouse or the spouse cannot be located, a waiver will be
deemed a qualified election.



24









 





     The election period to waive the pre-retirement surviving spouse death benefit begins on the
first day of the Plan Year in which the Participant attains age 35 or the date of the Participant’s
termination of service, if earlier, and ends on the date of the Participant’s death. An earlier
waiver (with spousal consent) may be made, but it will become invalid at the beginning of the Plan
Year in which the Participant attains age 35 or the date of a vested Participant’s termination of
service, if earlier. However, a new waiver and consent form may be signed thereafter at any time
during the election period.



     With regard to the election, the Committee shall provide each Participant within the
applicable period, with respect to such Participant (and consistent with regulations), a written
explanation of the pre-retirement surviving spouse death benefit containing comparable information
to that required pursuant to Section 8.02. For the purposes of this paragraph, the term
“applicable period” means, with respect to a Participant, whichever of the following periods ends
last:




     (a) The period beginning with the first day of the Plan Year in which the Participant
attains age 32 and ending with the close of the Plan Year preceding the Plan Year in which
the Participant attains age 35;




     (b) One year ending after the individual becomes a Participant;




     (c) One year ending after the Plan no longer fully subsidizes the cost of the
pre-retirement surviving spouse death benefit with respect to the Participant; or




     (d) One year ending after Code Section 401(a)(11) first applies to the Participant.



     Notwithstanding the foregoing, notice must be provided within a reasonable period ending after
separation from service in the case of a Participant who separates before attaining age 35. For
this purpose, the Committee must provide the explanation within a period beginning one year before
the separation from service and ending one year after such separation. If such a Participant
thereafter returns to employment with a Participating Employer, the applicable period for such
Participant shall be redetermined.



     9.02 Priority If No Designated Beneficiary. If there is no Beneficiary designation
form on file, or if the designated Beneficiary(ies) predeceases the Participant, benefit payments
required under the Plan and Trust to be payable on death to the Beneficiary(ies) will be
distributed in the following order of priority:




     (a) to the surviving spouse; or if none




     (b) to the surviving issue (per stirpes and not per capita); or, if none




     (c) to the surviving parents equally, or, if one is deceased, to the survivor of them;
or, if none




     (d) to the estate of the Participant.



25









 





CHAPTER X




TOP-HEAVY PROVISIONS




     10.01 Provisions Will Control. If the Plan is or becomes Top-Heavy in any Plan Year
beginning after December 31, 1983, the provisions of Chapter X will supersede any conflicting
provisions in the Plan.



     10.02 Definitions. For purposes of this Chapter X the following definitions shall
apply:




     (a) Employer: Means all Participating Employers and all Affiliated Employers.




     (b) Key Employee: Any Employee or former Employee (and the Beneficiaries of
such Employee) who at any time during the Determination Period was:




     (1) an officer of the Employer having annual compensation from the Employer
greater than 1.5 times the amount in effect under Section 415(c)(1)(A) for any such
Plan Year;




     (2) an owner (or considered an owner under Section 318 of the Code) of one of
the ten largest interests in the Employer if such individual’s compensation exceeds
the dollar limitation under Section 415(c)(1)(A) of the Code;




     (3) a 5% owner of the Employer; or




     (4) a 1% owner of the Employer who has an annual compensation of more than
$150,000.




     The Determination Period is the Plan Year containing the Determination Date and the 4
preceding Plan Years. The determination of who is a Key Employee will be made in accordance
with Section 416(i)(1) of the Code and the regulations thereunder.




     (c) Top-Heavy Plan: For any Plan Year beginning after December 31, 1983, this
Plan is Top-Heavy if any of the following conditions exist:




     (1) If the Top-Heavy Ratio for this Plan exceeds 60% and this Plan is not part
of any Required Aggregation Group or Permissive Aggregation Group of Plans.




     (2) If this Plan is a part of a Required Aggregation Group of plans but not
part of a Permissive Aggregation Group and the Top-Heavy Ratio for the group of
plans exceeds 60%.



     (3) If this Plan is a part of a Required Aggregation Group and part of a
Permissive Aggregation Group of plans and the Top-Heavy Ratio for the Permissive
Aggregation Group exceeds 60%.


26









 









     (d) Top-Heavy Ratio:




     (1) If the Employer maintains one or more defined benefit plans and the
Employer has not maintained any defined contribution plans (including any Simplified
Employee Pension Plan) which during the 5-year period ending on the Determination
Date(s) has or has had account balances, the Top-Heavy Ratio for this Plan alone or
for the Required or Permissive Aggregation Group, as appropriate, is a fraction, the
numerator of which is the sum of the Present Value of Accrued Benefits of all Key
Employees as of the Determination Date(s) (including any part of any Accrued Benefit
distributed in the 5-year period ending on the Determination Date(s)), and the
denominator of which is the sum of all Accrued Benefits (including any part of any
Accrued Benefits distributed in the 5-year period ending on the Determination
Date(s)) determined in accordance with Section 416 of the Code and the regulations
thereunder.




     (2) If the Employer maintains one or more defined benefit plans and the
Employer maintains or has maintained one or more defined contribution plans
(including any Simplified Employee Pension Plan) which during the 5-year period
ending on the Determination Date(s) has or has had account balances, the Top-Heavy
Ratio for any Required or Permissive Aggregation Group, as appropriate, is a
fraction, the numerator of which is the sum of account balances under the aggregate
defined contribution plan or plans for all Key Employees and the Present Value of
Accrued Benefits under the aggregate defined benefit plan or plans for all Key
Employees, and the denominator of which is the sum of the account balances under the
aggregate defined contribution plan or plans for all Participants and the Present
Value of Accrued Benefits under the aggregate defined benefit plan or plans for all
Participants as determined in accordance with Section 416 of the Code and the
regulations thereunder. The account balances under a defined contribution plan and
the Accrued Benefits under a defined benefit plan in both the numerator and
denominator of the Top-Heavy Ratio are adjusted for any distribution made in the
5-year period ending on the Determination Date.




     (3) For purposes of (1) and (2) above, the value of account balances and the
Present Value of Accrued Benefits will be determined as of the most recent Valuation
Date that falls within or ends with the 12-month period ending on the Determination
Date except as provided in Section 416 of the Code and the regulations thereunder
for the first and second plan years of a defined benefit plan. The account balances
and Accrued Benefits of a Participant who:




     (i) is not a Key Employee but who was a Key Employee in a prior year;
or




     (ii) has not received any compensation from any Employer maintaining
the Plan at any time during the 5-year period ending on the Determination
Date, will be disregarded. The calculation of the Top-Heavy Ratio, and the
extent to which distributions, rollovers, and



27









 






transfers are taken into
account will be made in accordance with Section 416 of the Code and the
regulations thereunder. Accordingly, the accrued benefit of any employee
who has not performed an Hour of Service for the Employer at any time during
the 5-year period ending on the Determination Date will be disregarded.
Deductible employee contributions will not be taken into account for
purposes of computing the Top-Heavy Ratio. When aggregating plans the value
of account balances and Accrued Benefits will be calculated with reference
to the Determination Dates that fall within the same calendar year.




     (e) Permissive Aggregation Group: The Required Aggregation Group of plans plus
any other plan or plans of the Employer which, when considered as a group with the Required
Aggregation Group, would continue to satisfy the requirements of Sections 401(a)(4) and 410
of the Code.




     (f) Required Aggregation Group:




     (1) Each qualified plan of the Employer in which at least one Key Employee
participates in the Plan Year containing the Determination Date or any of the four
preceding Plan Years (including any such plan that terminated within 5-year period
ending on the Determination Date), and




     (2) any other qualified plan of the Employer which enables a plan described in
(1) to meet the requirements of Sections 401(a)(4) or 410 of the Code.




     (g) Determination Date: For any Plan Year subsequent to the first Plan Year,
the last day of the preceding Plan Year. For the first Plan Year of the Plan, the last day
of that year.




     (h) Valuation Date: The first day of the Plan Year, as of which account
balances or Accrued Benefits are valued for purposes of calculating the Top-Heavy Ratio.




     (i) Present Value: Present Value shall be based only on the Actuarial
Equivalent interest and mortality rates specified in Section 1.01(c)



     10.03 Minimum Accrued Benefit:




     (a) Notwithstanding any other provision in this Plan except (c), (d), and (e) below,
for any Plan Year in which this Plan is Top-Heavy, each Participant who is employed on the
last day of the Plan Year will accrue a benefit (to be provided solely by Employer
contributions and payable in the Normal Form of Benefit) of 2.0% of his or her highest
average compensation for the five consecutive years for which the Participant had
the highest compensation. The minimum accrual is determined without regard to any
Social Security contribution. The minimum accrual applies even though under other Plan
provisions the Participant would not otherwise be entitled to receive an accrual, or would
have received a lesser accrual for the year.



28









 






     (b) For purposes of computing the minimum accrued benefit, compensation will include
all wages subject to tax under Section 3101(a) without the dollar limitation of Section
3121(a), but not including deferred compensation other than contributions through a salary
reduction agreement to a cash or deferred plan under Section 401(k) or to a tax deferred
annuity under Section 403(b) of the Code.




     (c) No additional benefit accruals shall be provided pursuant to (a) above to the
extent that the total accruals on behalf of the Participant attributable to Employer
contributions will provide a benefit expressed as a life annuity commencing at the Normal
Retirement Date that equals or exceeds 20% of the Participant’s highest average compensation
for the five consecutive years for which the Participant had the highest compensation.




     (d) The provisions in (a) above shall not apply to any Participant to the extent that
the Participant is covered under any other plan or plans of the Employer. In such case, the
minimum allocation or benefit requirement applicable to this Top-Heavy plan will be met in
the other plan or plans.




     (e) All accruals of Employer derived benefit, whether or not attributable to years for
which the Plan is Top-Heavy, may be used in computing whether the minimum accrual
requirements of paragraph (c) above are satisfied.



     10.04 Adjustment for Benefit Form Other Than Life Annuity. If the Normal Form of
Benefit is other than a single life annuity, the Employee must receive an amount that is the
Actuarial Equivalent of the minimum single life annuity benefit. If the benefit commences at a
date other than the Normal Retirement Date, the Employee must receive at least an amount that is
the Actuarial Equivalent of the minimum single life annuity benefit commencing at the Normal
Retirement Date.



     10.05 Nonforfeitability of Minimum Accrued Benefit. The minimum accrued benefit
required (to the extent required to be nonforfeitable under Section 416(b)) may not be forfeited
due to any suspension of benefits upon re-employment of retiree.



     10.06 Minimum Vesting Schedules. For any Plan Year in which this Plan is Top-Heavy,
the following vesting schedule will automatically apply to the Plan:



	 	 	 	 	 
	Years of Vesting Service	 	Vested Percentage
	1

	 	 	0	%
	2

	 	 	20	%
	3

	 	 	40	%
	4

	 	 	60	%
	5

	 	 	100	%






     The minimum vesting schedule applies to all benefits within the meaning of Section 411(a)(7)
of the Code, including benefits accrued before the effective date of Section 416 and benefits
accrued before the Plan became Top-Heavy. Further, no reduction in Vested benefits may occur in
the event the Plan’s status as Top-Heavy changes for any Plan Year. However, this



29









 




Section does not
apply to the Accrued Benefits of any Employee who does not have an Hour of Service after the Plan
has initially become Top-Heavy and such Employee’s Accrued Benefits attributable to Employer
contributions will be determined without regard to this Section. If the vesting schedule under the
Plan shifts in or out of the above schedule for any Plan Year because of the Plan’s Top-Heavy
status, such shift is an amendment to the vesting schedule and the election in Section 11.01(c) of
the Plan applies.




     10.07 Compensation Limitation. For any Plan Year in which the Plan is Top-Heavy, only
the first $200,000 (or such larger amount as may be prescribed by the Secretary or his delegate) of
a Participant’s annual Compensation shall be taken into account for purposes of determining
benefits under the Plan.



CHAPTER XI




AMENDMENT OF THE PLAN




     11.01 Amendment by Employer. The Employer may, by resolution of its Board of
Directors, amend this Plan at any time. Any amendment by the Employer will be subject to the
following rules:




     (a) Without its written consent, no amendment may increase the duties or liabilities of
the Trustee.




     (b) Except as permitted by law, no amendment may provide for the use of funds or assets
under the Plan and Trust other than for the exclusive benefit of Participants or their
Beneficiaries. In addition, no amendment may allow Trust Fund assets to revert to or be
used or enjoyed by any Participating Employer unless otherwise permitted by law.




     (c) If an amendment changes the vesting schedule of the Plan, or if the Plan is amended
in any way that directly or indirectly affects the computation of a Participant’s
nonforfeitable percentage, any Participant in the employ of a Participating Employer or an
Affiliated Employer on the date such amendment is adopted (or the date it is effective, if
later) who has completed at least three Years of Vesting Service at the end of the election
period specified below, may make an irrevocable election to remain under the
vesting schedule of the Plan as in existence immediately prior to said amendment. If
such Participant does not make this election during the election period starting on the date
such amendment is adopted, and ending 60 days following the latest of the following dates,
he will be subject to the new vesting schedule provided by said amendment:




     (1) the date the amendment is adopted;




     (2) the date the amendment is effective; or




     (3) the date written notice of the amendment is given to the Participant.



30









 






     However, the failure to make an election described above will not result in the
forfeiture of any benefits which are already Vested.




     (d) No amendment may reduce the Accrued Benefit or Vested percentage of a Participant.



     11.02 Conformance to Law. Regardless of the provisions of Section 11.01, the Employer
has the right to make whatever amendments are necessary to this Plan or the Trust to bring it into
conformity with applicable law.



     11.03 Merger, Consolidation, or Transfer. If the Plan and Trust are merged or
consolidated with, or the assets or liabilities are transferred to, any other plan and trust, the
benefits payable to each Participant immediately after such action (if the Plan was then
terminated) will be equal to or greater than the benefits to which he would have been entitled if
the Plan had terminated immediately before such action.



CHAPTER XII




TERMINATION OF THE PLAN




     12.01 Right to Terminate. It is the expectation of the Employer that it will continue
the Plan and the payment of contributions indefinitely, but continuance of the Plan is not assumed
as a contractual obligation of the Employer, and the right is reserved by the Employer, by
resolution of its Board of Directors, at any time to reduce, suspend, or discontinue its
contributions, or terminate the Plan with respect to certain or all of its Employees. Further, any
other Participating Employer may do likewise as to its participation in the Plan by resolution of
its Board of Directors. If the Plan is terminated or partially terminated, the Accrued Benefit of
each Participant who is in the employ of the Participating Employer on the effective date of the
Plan termination or partial termination (as specified by the Participating Employer unless
otherwise specified by the PBGC) and whose employment is affected by such termination or partial
termination will thereafter be fully vested and nonforfeitable. Such Participant will have
recourse only to the assets of the Trust Fund and the PBGC for the payment of such Vested Accrued
Benefit.



     12.02 Termination Priorities. If the Plan is terminated or partially terminated
(whether by the Employer or the PBGC), and the PBGC has notified the Employer that it may proceed
with benefit payments under this Plan, the Trust Fund assets (or portion thereof, in the case of
partial termination) will be allocated to the appropriate Participants (all Participants in the
event of complete Plan termination, in the event of partial termination, only those Participants
whose Termination of Employment caused or was the result of such partial termination) in the
following order of priority:




     (a) to provide for the return of Employee contributions, if any;




     (b) to provide for any benefit of a Participant which was payable as an annuity in
either of the following categories:



31









 






     (1) the benefit of a Participant which was in pay status as of the first day of
the 3-year period immediately preceding the date the Plan was terminated, as
specified by the PBGC;




     (2) the benefit of a Participant which could have been in pay status as of the
first day of the 3-year period immediately preceding the date the Plan was
terminated, as specified by the PBGC.




     For purposes of this Sub-Section (b), such benefit will be determined on the basis of
the Plan’s provisions which were in effect at any time during the 5-year period ending on
such date of Plan termination under which the benefit would be the least;




     (c) to provide for any other benefit of a Participant (not covered by any of the two
previous priority classifications) which is insured and guaranteed by the PBGC;




     (d) to provide for all other nonforfeitable benefits;




     (e) to provide for all other benefits.



     Any allocations provided for under the above priority classifications will be payable to
either a Participant or his Beneficiary, whichever is appropriate. In addition, with respect to
priority classifications (b), (c), (d), and (e), the amount of an allocation to a Participant under
a specified priority classification will be reduced by the amount of such Participant’s allocation
under a previous priority classification.



     12.03 Reversion to Employer. In the event assets remain in the Trust Fund after the
complete satisfaction of all liabilities of the Plan and Trust, as specified in Section 12.02,
distribution may be made to the Employer of such remaining assets, which will be deemed
attributable to the difference between the actuarial assumptions used by the Actuary to determine
the funding requirements of the Plan and Trust and the actual experience of the Trust Fund during
its operation.



     12.04 Subsequent Benefit Payments. Unless otherwise specified by law, the timing,
form (with the addition of lump sum distributions), and amount of any benefit payments provided
under this Chapter will be made in accordance with the provisions of Chapter VIII.



CHAPTER XIII




CLAIMS PROCEDURE




     13.01 Written Claim. A Participant or Beneficiary(ies) may make a claim for Plan
benefits by filing a written request with the Committee, on a form provided by the Committee.



     13.02 Claim Denial. If a claim is wholly or partially denied, the Committee will
furnish the Participant or Beneficiary(ies) with written notice of the denial within 60 days of the
date the original claim was filed. The notice of denial will specify:



32









 






     (a) the reason for denial;




     (b) specific reference to pertinent Plan and Trust provisions on which the denial is
based;




     (c) a description of any additional information or requirements needed to be eligible
to obtain the denied benefit and an explanation of why such information or requirements are
necessary; and




     (d) an explanation of the claim procedure.



     13.03 Request for Review of Denial. The Participant or Beneficiary(ies) will have 60
days from receipt of denial notice in which to make written application for review by the
Committee. The Participant or Beneficiary may request that the review be in the nature of a
hearing. The Participant or Beneficiary(ies) will have the rights to representation, to review
pertinent documents, and to submit comments in writing.



     13.04 Decision on Review. The Committee will issue a decision on such review within
60 days after receipt of an application for review.



     The Committee shall have full and complete discretionary authority to determine eligibility
for benefits, to construe the terms of the Plan and to decide any matter presented through the
claims review procedure. Any final determination by the Committee shall be binding on all parties.
If challenged in court, such determination shall not be subject to de novo review
and shall not be overturned unless proven to be arbitrary and capricious upon the evidence
considered by the Committee at the time of such determination.



     13.05 Additional Time. The Committee may take additional time, as provided by
government regulations, under this Chapter XIII, if such time is needed to gather data, perform
calculations or reach decisions in the processing of a claim. The Participant or Beneficiary(ies)
will be informed by the Committee, in writing, of the need for such additional time prior to the
date such extension begins.



CHAPTER XIV




CONTRIBUTION AND BENEFIT LIMITS


TO HIGH PAID EMPLOYEES




     14.01 When Applicable. Participating Employer contributions on behalf of any of the
25 highest paid Employees at the time the Plan is established and whose anticipated annual benefit
exceeds $1,500 will be restricted as provided in Section 14.02 upon the occurrence of the following
conditions:




     (a) The Plan is terminated within 10 years after its establishment;




     (b) The benefits of such highest paid Employee become payable within 10 years after the
establishment of the Plan; or



33









 






     (c) If Section 412 of the Code (without regard to Section 412(h)(2)) does not apply to
this Plan, the benefits of such Employee become payable after the Plan has been in effect
for 10 years, and the full current costs of the Plan for the first 10 years have not been
funded.



     14.02 Limitations. Participating Employer contributions which may be used for the
benefit of an Employee described in Section 14.01 shall not exceed the greater of $20,000, or 20%
of the first $50,000 of the Employee’s compensation multiplied by the number of years between the
date of the establishment of the Plan and:




     (a) if 14.0l(a) applies, the date of the termination of the plan;




     (b) if 14.0l(b) applies, the date the benefit becomes payable; or




     (c) if 14.0l(c) applies, the date of the failure to meet the full current costs.



     14.03 Limitations if Plan Amended. If the Plan is amended so as to increase the
benefit actually payable in event of the subsequent termination of the Plan, or the subsequent
discontinuance of contributions thereunder, then the provisions of the above Sections shall be
applied to the Plan as so changed as if it were a new Plan established on the date of the change.
The original group of 25 Employees (as described in Section 14.01 above) will continue to have the
limitations in Section 14.02 apply as if the Plan had not been changed. The restriction relating
to the change of Plan should apply to benefits or funds for each of the 25 highest paid Employees
on the effective date of the change except that such restrictions need not apply with respect to
any Employee in this group for whom the normal annual pension or annuity provided by Participating
Employer contributions prior to that date and during the ensuing ten years, based on his rate of
compensation on that date, could not exceed $1,500.



     The Participating Employer contributions which may be used for the benefit of the new group of
25 Employees will be limited to the greater of:




     (a) The Participating Employer contributions (or funds attributable thereto) which
would have been applied to provide the benefits for the Employees if the previous Plan had
been continued without change;




     (b) $20,000; or




     (c) The sum of:




     (1) the Participating Employer contributions (or funds attributable thereto)
which would have been applied to provide benefits for the Employees under the
previous Plan if it had been terminated the day before the effective date of change,
and




     (2) an amount computed by multiplying the number of years (for which the
current costs of the Plan after that date are met) by 20% of his annual
compensation, or $10,000, whichever is smaller.



34









 





     14.04 Alternate Limitations. Notwithstanding the above limitations the following
limitations will apply if they would result in a greater amount of Participating Employer
contributions to be used for the benefit of the restricted Employee:




     (a) In the case of a substantial owner (as defined in Section 4022(b)(5) of ERISA), a
dollar amount which equals the present value of the benefit guaranteed for such Employee
under Section 4022 of ERISA, or if the Plan has not terminated, the present value of the
benefit that would be guaranteed if the Plan terminated on the date the benefit commences,
determined in accordance with regulations of the PBGC; and




     (b) In the case of the other restricted Employees, a dollar amount which equals the
present value of the maximum benefit described in Section 4022(b)(3)(B) of ERISA (determined
on the earlier of the date the Plan terminates or the date benefits commence, and determined
in accordance with regulations of the PBGC) without regard to any other limitations in
Section 4022 of ERISA.



CHAPTER XV




MISCELLANEOUS PROVISIONS




     15.01 Reversion of Assets. This Plan and Trust are for the exclusive benefit of the
Employees of the Participating Employers and none of the assets may be used for any other purpose.
Notwithstanding the above, there may be a reversion of assets to the Employer (or the Employee) in
the event one of the following occurs:




     (a) If, in the course of administering the Plan and Trust, errors in accounting arise
due to factual errors in information supplied by any Participating Employer, the Committee,
the Plan Administrator or the Trustee, equitable adjustments may be made to correct these
errors. Excess contributions arising from such adjustments may be returned to the
Participating Employer within one year after such contributions were made.




     (b) All Participating Employer contributions made to the Plan under Code Section 412(m)
are conditioned on deductibility. For any year(s) that all or a part of a deduction for
Participating Employer contributions to the Plan is disallowed by the Secretary of the
Treasury, the amount of the contributions so disallowed shall be returned to the
Participating Employer within one year after such disallowance.




     (c) The Plan is terminated as provided for in Chapter XII.




     15.02 Equitable Adjustment. The Committee may make equitable adjustments, which may
be retroactive, to correct for mathematical, accounting, or factual errors made in good faith.
Such adjustments will be final and binding on all Participants and other parties in interest.



     15.03 Reasonable Compensation. If for any Plan Year, the Internal Revenue Service
determines that the total compensation of a Participant exceeds the amount which can be considered
“reasonable” for purposes of the federal income tax return of the Participating



35









 




Employer, then the
Committee will readjust the Accrued Benefit of such Participant to reflect only the “reasonable”
compensation of said Participant.




     15.04 Indemnification. To the extent permitted by law, the Employer will indemnify
each member of the Committee and any others to whom the Employer has delegated fiduciary duties
(except corporate trustees, insurers or “investment managers” (as defined in ERISA)) against any
and all claims, losses, damages, expenses and liabilities arising from their responsibilities in
connection with the Plan, unless the same are determined to be due to gross negligence or willful
misconduct.



     15.05 Protection From Loss. Neither the Trustee, the Plan Administrator, the
Committee nor the Employer guarantee the Trust Fund in any way from loss or depreciation. To the
extent permitted by applicable law, the liability of any of these persons, groups of persons, or
entities to make any payment under the Plan and Trust is limited to the available assets of the
Trust Fund.



     15.06 Protection From Liability. To the maximum extent allowed by law, the Plan
Administrator and the Participating Employers, and their agents, designees and employees, shall be
free from all liability, joint or several, for their acts, omissions, and conduct, except in the
case of their own willful misconduct, gross negligence or bad faith. Specifically and without
limitation other than as follows, nothing in the first sentence of this Section or elsewhere in the
Plan and Trust shall be construed to relieve any Fiduciary from responsibility or liability for any
responsibility, obligation or duty Under Part 4 of Title 1 of ERISA (except as provided in Sections
405(b)(1) and 405(d) of ERISA).



     15.07 Adoption of Rules and Procedures. Any group of people acting in a specified
capacity under the Plan and Trust (such as the Named Fiduciary, Trustee, Committee, Plan
Administrator, “investment manager” (as defined by ERISA) if any, and so on) may create and abide
by whatever rules and procedures they desire, so long as these rules and procedures are not
inconsistent with the Plan, the Trust and applicable law. If these rules specifically limit the
duties and responsibilities of the members of any of these groups, then to the extent permitted by
applicable law, the liability to each member under the Plan and Trust will be limited to his
specific duties.



     15.08 Assignment of Benefits. A Participant’s interest in this Plan may not be
assigned or alienated, either voluntarily or involuntarily. This shall not preclude the Trustee
from complying with: (i) a qualified domestic relations order (as defined in Section 414(p) of the
Code) made pursuant to a domestic relations law requiring deduction from the benefits of a
Participant for alimony, child support, or marital property payments, or (ii) on or after August 5,
1997 and pursuant to Code Section 401(a)(13)(c), any court order, judgment, decree, or settlement
agreement requiring that a Participant’s benefits be reduced where the Participant has committed a
breach of fiduciary duty to the Plan or committed a criminal act against the Plan.



     Notwithstanding any restrictions on the timing of distributions and withdrawals under this
Plan, distribution shall be made to an alternate payee in accordance with the terms of an order
described in the preceding paragraph, or as determined by the Plan Administrator and alternate
payee if provided in the order, even if such distribution is made prior to the Participant’s
attainment of the earliest retirement age (as defined in Code Section 414(p)(4)).



36









 





     15.09 Mental Competency. Every person receiving or claiming benefits under the Plan
and Trust will be presumed to be mentally competent until the date on which the Committee receives
a written notice (in a form and manner acceptable to it) that such person is incompetent, and that
a guardian, conservator or other person legally vested with his care or the care of his estate has
been appointed. If the Committee receives acceptable notice that a person to whom a benefit is
payable under the Plan and Trust is unable to care for his affairs because of incompetency, any
payment due (unless a prior claim for it has been made by duly appointed legal representative) may
be paid to the spouse, a child, a parent, a brother or a sister or to any person determined by the
Committee to have incurred expenses for such person. Any such payment will be a complete discharge
of the obligation of the Participating Employer, Committee, Plan Administrator and Trustee to
provide benefits under the Plan and Trust.



     In the event that the Plan benefits of a person receiving or claiming them are garnished or
attached by order of any court, the Committee may bring an action for a declaratory judgment in a
court of competent jurisdiction to determine the proper recipient of the benefits to be paid under
the Plan. While the action is pending, any benefits that become payable under this plan will be
paid into the court as they become payable. The court will then make the benefit distributions to
the recipient it deems proper at the close of said action.



     15.10 Authentication. The Participating Employer, Committee, Plan Administrator and
Trustee will be fully protected in acting and relying upon such certificate, affidavit, document or
other information which that person requesting such information may consider pertinent, reliable
and genuine.



     Any notice required to be made under the Plan and Trust may be waived, in writing, by the
person entitled thereto. In addition, the time period specified in this Plan for filing any such
notice may be modified or waived, in writing, by the person entitled thereto.



     15.11 Not an Employment Contract. The Plan and Trust will not be construed as
creating or modifying any contract of employment between any Participating Employer and the
Employee.



     15.12 Appointment of Auditor. The Employer shall have the right to appoint an
independent auditor to audit the books, records, and accounts of the Trustee as they relate to the
Plan and the Trust.



     15.13 Uniform Treatment. All interpretations made in connection with the Plan and
Trust are intended to be exercised in a nondiscriminatory manner so that all Employees in similar
circumstances are treated alike.



     15.14 Interpretation. The provisions of the Plan and Trust are to be construed as a
whole and not construed separately without relation to the context of the entire agreement.



     15.15 Plural and Gender. When appropriate, the singular nouns in the Plan and Trust
may include the plural, and vice versa. Also, wherever the male gender is used in the Plan and
Trust, the female gender may be included, and vice versa.



37









 





     15.16 Headings. Headings at the beginnings of any Chapter, Section, or Sub-Section
are for convenience only and are not to influence the construction of this Plan and Trust.



     15.17 Expenses. The Participating Employers may pay the expenses of administering the
Plan, if desired. However, if they do not pay these expenses directly, then, to the extent
permitted by law, the payments will be made from the Trust Fund.



     15.18 Prevention of Escheat. If the Participating Employer cannot ascertain the
whereabouts of any person to whom a payment is due under the Plan, and if a notice of such payment
due is mailed to the last known address of such person, as shown on the records of the
Participating Employer, and within three months after such mailing such person has not made written
claim therefor, the Participating Employer, if it so elects, may direct that such payment and all
remaining payments otherwise due to such person be canceled on the records of the Plan and the
amount thereof applied to reduce the contributions of the Participating Employer. The Plan and the
Trust shall have no further liability therefor, except that, in the event such person later
notifies the Participating Employer of his whereabouts and requests the payment due to him under
the Plan, the amount so applied shall be paid to him.



     15.19 Special Provisions Respecting Military Service. Notwithstanding any provision
of the Plan to the contrary, contributions, benefits and service credit with respect to qualified
military service will be provided in accordance with Section 414(u) of the Code, effective for
individuals whose re-employment occurs after December 11, 1994.



     15.20 Participation of Affiliated Employers. The administrative powers and control of
the Employer, as provided in this Plan and the Trust agreement, as well as the sole and exclusive
right of amendment and termination (as covered in Chapters XI and XII) and of appointment and
removal of the Plan Administrator, the Trustee, and their successors, shall remain solely with
OshKosh B’Gosh, Inc. and shall not be diminished in any way by reason of the participation of any
Affiliated Employer in the Plan and the Trust agreement.



CHAPTER XVI




EGTRRA PROVISIONS




     16.01 Adoption and Effective Date of Amendment. This amendment of the Plan is adopted
to reflect certain provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001
(“EGTRRA”). This amendment is intended as good faith compliance with the requirements of EGTRRA and
is to be construed in accordance with EGTRRA and guidance issued thereunder. Except as otherwise
provided, this amendment shall be effective as of the first day of the first Plan year beginning
after December 31, 2001.



     16.02 Supersession of Inconsistent Provisions. This amendment shall supersede the
provisions of the Plan to the extent those provisions are inconsistent with the provisions of this
amendment.



     16.03 Increase in Compensation Limit.



38









 






     (a) Increase in limit. The annual compensation of each Participant taken into account
in determining benefit accruals in any Plan Year beginning after December 31, 2001, shall
not exceed $200,000. Annual compensation means compensation during the plan year or such
other consecutive 12-month period over which compensation is otherwise determined under the
plan (the determination period). For purposes of determining benefit accruals in a plan year
beginning after December 31, 2001, the compensation for any prior determination period shall
be $200,000.




     (b) Cost-of-living adjustment. The $200,000 limit on annual compensation in paragraph
(a) shall be adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B)
of the Code. The cost-of-living adjustment in effect for a calendar year applies to annual
compensation for the determination period that begins with or within such calendar year.



     16.04 Modification of Top-Heavy Rules.




     (a) Effective date. This section shall apply for purposes of determining whether the
Plan is a top-heavy plan under Section 416(g) of the Code for plan years beginning after
December 31, 2001, and whether the plan satisfies the minimum benefits requirements of
Section 416(c) of the Code for such years. This section amends Chapter V of the Plan.




     (b) Determination of top-heavy status.




     (1) Key employee. Key employee means any employee or former employee
(including any deceased employee) who at any time during the Plan Year that includes
the determination date was an officer of the employer having annual compensation
greater than $130,000 (as adjusted under Section 416(i)(1) of the Code for plan
years beginning after December 31, 2002), a 5-percent owner of the employer, or a
1-percent owner of the employer having annual compensation of more than $150,000.
For this purpose, annual compensation
means compensation within the meaning of Section 415(c)(3) of the Code. The
determination of who is a key employee will be made in accordance with Section
416(i)(1) of the Code and the applicable regulations and other guidance of general
applicability issued thereunder.




     (2) Determination of present values and amounts. Subsections (3) and (4) below
shall apply for purposes of determining the present values of accrued benefits and
the amounts of account balances of employees as of the determination date.




     (3) Distributions during year ending on the determination date. The present
values of accrued benefits and the amounts of account balances of an employee as of
the determination date shall be increased by the distributions made with respect to
the employee under the plan and any plan aggregated with the Plan under Section
416(g)(2) of the Code during the 1-year period ending on the determination date. The
preceding sentence shall also apply to distributions under a terminated plan which,
had it not been terminated, would have been aggregated



39









 






with the plan under Section
416(g)(2)(A)(i) of the Code. In the case of a distribution made for a reason other
than separation from service, death, or disability, this provision shall be applied
by substituting “5-year period” for “1-year period.”




     (4) Employees not performing services during year ending on the determination
date. The accrued benefits and accounts of any individual who has not performed
services for the employer during the 1-year period ending on the determination date
shall not be taken into account.




     (c) Minimum benefits. For purposes of satisfying the minimum benefit requirements of
Section 416(c)(1) of the Code and the Plan, in determining years of service with the
employer, any service with the employer shall be disregarded to the extent that such service
occurs during a Plan Year when the Plan benefits (within the meaning of Section 410(b) of
the Code) no key employee or former key employee.



     16.05 Direct Rollovers of Plan Distributions.




     (a) Effective date. This section shall apply to distributions made after December 31,
2001.




     (b) Modification of definition of eligible retirement plan. For purposes of the direct
rollover provisions in Section 8.07 of the Plan, an eligible retirement plan shall also mean
an annuity contract described in Section 403(b) of the Code and an eligible plan under
Section 457(b) of the Code which is maintained by a state, political subdivision of a state,
or any agency or instrumentality of a state or political subdivision of a state and which
agrees to separately account for amounts transferred into such plan from this plan. The
definition of eligible retirement plan shall also apply in the case of a distribution to a
surviving spouse, or to a spouse or former spouse who is the alternate payee under a
qualified domestic relation order, as defined in Section 414(p) of the Code.




     (c) Modification of definition of eligible rollover distribution to include after-tax
employee contributions. For purposes of the direct rollover provisions in Section 8.07 of
the Plan, a portion of a distribution shall not fail to be an eligible rollover distribution
merely because the portion consists of after-tax employee contributions which are not
includible in gross income. However, such portion may be paid only to an individual
retirement account or annuity described in Section 408(a) or (b) of the Code, or to a
qualified defined contribution plan described in Section 401(a) or 403(a) of the Code that
agrees to separately account for amounts so transferred, including separately accounting for
the portion of such distribution which is includible in gross income and the portion of such
distribution which is not so includible.



     IN WITNESS WHEREOF, this Plan is executed by the Employer through its duly authorized
officers, on this    6    day of   November  , 2001.


	 	 	 	 	 
	 	 	 
	 	By:  	    /S/ David L. Omachinski
 	 
	 	 	 	 
	 	Attest:  	     /S/ Margaret Wacholtz 	 
	 





40









 








OSHKOSH B’GOSH, INC.



OFFICERS’ CERTIFICATE





     WHEREAS, OshKosh B’Gosh, Inc. has established and currently maintains the OshKosh
B’Gosh, Inc. Pension Plan (the “Plan”) on behalf of certain eligible employees of OshKosh B’Gosh,
Inc. (the “Company”);



     WHEREAS, the Company wishes to amend the Plan to make certain changes to the Plan’s
eligibility provisions and benefit formula; and



     WHEREAS, by prior resolution, the Company has authorized Paul S. Christensen and
Michael L. Heider to make such eligibility and formula changes and any further amendments to the
Plan as they deem necessary or desirable;




	   	NOW THEREFORE, the OshKosh B’Gosh, Inc. Pension Plan is hereby amended, effective as of
January 1, 2005, as follows:






	 	1.  	Effective January 1, 2005, the definition of “Accrued Benefit” in Section
1.01(a) shall be amended in its entirety to read as follows:






(a) Accrued Benefit means a Participant’s Normal Retirement Benefit
earned under the Plan payable at a Participant’s Normal Retirement Date
based on his Years of Benefit Service and monthly Compensation up to the
date for which the Accrued Benefit is being determined. Notwithstanding the
foregoing, the Accrued Benefit of an Employee who was a Participant on
December 31, 2004 and who continues as a Participant on January 1, 2005,
shall not be less than such Participant’s Accrued Benefit determined under
the terms of the Plan as in effect on December 31, 2004.




	 	2.  	Effective January 1, 2005, a final paragraph shall be added to the definition of “Employee”
in Section 1.01(p) of the Plan to read as follows:
	 
	 	   	Notwithstanding the foregoing provisions of this Section 1.01(p), “Employee” shall
not include any employee hired as a “retail store employee” (i.e., an employee
designated either as classification code 200 and 225 or successor designation of
similar import) who is hired on or after January 1, 2005. Further, an Employee who
either becomes a “retail store employee” after January 1, 2005, as a result of
transfer or otherwise, or who terminates employment and is rehired as a “retail
store employee” on or after January 1, 2005, shall not be an Employee hereunder
while employed as a “retail store employee.”
	 
	 	3.  	Section 2.02 shall be clarified by adding the phrase “as an Employee” after the
phrase “and is later rehired” as it appears in such Section 2.02.




41









 






	 	4.  	Effective January 1, 2005, Section 4.01(a) of the Plan shall be amended in its entirety to
read as follows:






(a) Effective January 1, 2005, a Participant who retires from a
Participating Employer on his Normal Retirement Date is entitled to a
monthly Normal Retirement Benefit, payable in the Normal Form of Benefit, in
an amount equal to the Participant’s five-year average monthly compensation
(i.e., the average of any five consecutive Plan Years or if the actual
number of such Years in less than five, the average based on the number of
completed months, which produce the highest average) multiplied by the sum
of (i) plus (ii), where (i) equals 1% multiplied by the Participant’s Years
of Benefit Service prior to January 1, 2005, and (ii) equals .75% multiplied
by the Participant’s Years of Benefit Service after December 31, 2004.




Notwithstanding the foregoing, in no event shall such Participant’s Normal
Retirement Benefit be less than that accrued under the Plan as of December
31, 2004 under the Plan formula then in effect.



     The foregoing actions are taken with the understanding that such actions are consistent with
the desires and intentions of the Company.



	 	 	 	 
	OSHKOSH B’GOSH, INC.
	By:

	 	/S/ MICHAEL L. HEIDER
	 

	 	

	

	 	Michael L. Heider
	

	 	Vice President Finance, Treasurer and
	

	 	Chief Financial Officer
	Date:

	 	December 30, 2004
	 
	 	 
	OSHKOSH B’GOSH RETAIL, INC.
	By:

	 	/S/ PAUL CHRISTENSEN
	 

	 	

	

	 	Paul Christensen
	

	 	Assistant Secretary
	Date:

	 	December 30, 2004
	 
	 	 
	OBG PRODUCT DEVELOPMENT AND SALES, INC.
	By:

	 	/S/ PAUL CHRISTENSEN
	 

	 	

	

	 	Paul Christensen
	

	 	Assistant Secretary
	Date:

	 	December 30, 2004
	 
	 	 
	OBG DISTRIBUTION COMPANY, LLC
	By:

	 	/S/ MICHAEL L. HEIDER
	 

	 	

	

	 	Michael L. Heider
	

	 	Vice President Finance, Treasurer and
	

	 	Chief Financial Officer
	Date:

	 	December 30, 2004
	 
	 	 
	OBG MANUFACTURING COMPANY
	By:

	 	/S/ MICHAEL L. HEIDER
	 

	 	

	

	 	Michael L. Heider
	

	 	Vice President Finance, Treasurer and
	

	 	Chief Financial Officer
	Date:

	 	December 30, 2004








42