OSHKOSH B'GOSH, INC.
As Amended and Restated on November 6, 2001
With Amendment effective as of December 31, 2002
Generally Effective: January 1, 1998 (unless otherwise stated)
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
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
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
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.
DEFINITIONS Unless the context requires otherwise, the capitalized terms defined below will have the following meanings throughout this Plan when capitalized: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: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, orthe sum of: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, andthe 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.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.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: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.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.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.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.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).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.Beneficiary is the person or entity designated in Chapter IX to receive any death benefits of a Participant which become payable under the Plan.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.Code means the Internal Revenue Code of 1986, as amended and as it may be amended.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 tim e 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 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.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.
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.Date of Employment means: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, orthe 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.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.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.Early Retirement Date is the date on which the Participant has attained the age of 60 and completed 5 years of Vesting Service.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.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.Employer is OshKosh B'Gosh, Inc. and any successor corporation by merger, purchase, or otherwise.Employment Year means a 12-month period following an Employee's most recent Date of Employment.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):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; andEach 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 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; andEach 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.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 of the annuity payable for the life of the Participant and which is the Actuarial Equivalent of the Normal Form of Benefit.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.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.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.Normal Retirement Benefit is the monthly benefit described in Section 4.01 payable beginning the first of the month following the Normal Retirement Date.Participant is an Employee who has met the eligibility requirements of Chapter II.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.Plan means the OshKosh B'Gosh, Inc. Pension Plan as it may be amended from time to time.Plan Administrator is OshKosh B'Gosh, Inc.Plan Year is January 1 to December 31.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.Trust means the OshKosh B'Gosh, Inc. Pension Trust as it may be amended from time to time.Trustee is the person(s), corporation, or combination thereof, and any duly appointed successor or successors, named as Trustee in the Trust document.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.Vested is that portion of an Accrued Benefit to which a Participant has a nonforfeitable right.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
900 but less than 1,000
800 but less than