EX-10.32.10



 





Exhibit 10.32.10




AMENDMENT TO

FEDERATED DEPARTMENT STORES, INC.

PROFIT SHARING 401(k) INVESTMENT PLAN




     The Federated Department Stores, Inc. Profit Sharing 401(k) Investment Plan (the “Plan”) is
hereby amended, in order to reflect certain changes in the regulations of the Internal Revenue
Service issued under Sections 401(k) and 401(m) (and related sections) of the Internal Revenue
Code, in the following respects.



     1. Effective as of January 1, 2006 and for the Plan’s plan years beginning on or after such
date, Section 1.26 of the Plan is amended by adding a new Section 1.26.8 reading as follows to the
end thereof.




     1.26.8 Notwithstanding any other provision of the Plan, a Participant’s Savings
Agreement cannot relate to any Covered Compensation of the Participant that is
currently available prior to the adoption or effective date of the Savings
Agreement. In addition, except for occasional, bona fide administrative
considerations, any contributions that are made to the Plan pursuant to a
Participant’s Savings Agreement cannot precede the earlier of (1) the performance of
the Participant’s services with respect to which such contributions are made or (2)
when the amount of such contributions would be currently available to the
Participant in the absence of such Savings Agreement.



     2. Effective as of January 1, 2006 and for the Plan’s plan years beginning on or after such
date, Section 4A.2.1 of the Plan is amended in its entirety to read as follows.




     4A.2.1 If, with respect to any Plan Year (for purposes of this Section 4A.2.1,
the “subject Plan Year”), an Eligible Participant who is a Highly Compensated
Employee for the subject Plan Year is or was eligible to participate in a cash or
deferred arrangement, which qualifies under Section 401(k) of the Code and is
contained in an aggregatable plan, then, for the purpose of determining the Actual
Deferral Percentage of the Eligible Participant for the subject Plan Year under this
Plan, any contributions made to such aggregatable plan that (1) are allocated to the
Eligible Participant’s account under such aggregatable plan as of any dates within
the subject Plan Year and (2) which would be treated as Pre-Tax Savings
Contributions of the Eligible Participant for the subject Plan Year had they been
allowed and made under this Plan shall be treated as if they were Pre-Tax Savings
Contributions of the Eligible Participant under this Plan for the subject Plan Year.
For purposes hereof, an “aggregatable plan” is a plan other than this Plan which is
qualified under Section 401(a) of the Code, is maintained by an Associated Employer,
and is not prohibited from being aggregated with this Plan for purposes of Section
410(b) of the Code under Treas. Reg. Section 1.410(b)-7.



     3. Effective as of January 1, 2006 and for the Plan’s plan years beginning on or after such
date, Section 4A.3.2 of the Plan is amended in its entirety to read as follows.




     4A.3.2 The distribution of any portion of the Excess Contributions for a
subject Plan Year to an Eligible Participant under the provisions of this Section
4A.3 shall be adjusted upward for the Trust’s income allocable thereto (or downward
for the Trust’s loss allocable thereto) for the subject Plan Year and for the gap
period that applies to the subject Plan Year, as determined under this Section
4A.3.2. For purposes of this Section



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4A.3, the “gap period” that applies to any subject Plan Year refers to the
period after the close of the subject Plan Year and prior to the distribution. For
purposes hereof, the Trust’s income (or loss) allocable to any Excess Contributions
applicable to a subject Plan Year and applied to an Eligible Participant for
distribution purposes shall be determined under any reasonable method that is
adopted by the Committee for this purpose. Such method shall be used consistently
for all Participants and for all corrective distributions made under the Plan for
the subject Plan Year, shall not violate the requirements of Code Section 401(a)(4),
and shall be a method that is reasonably consistent with the method used by the Plan
for allocating income and losses to Participants’ Accounts for the subject Plan
Year. The method adopted by the Committee to determine the Trust’s income (or loss)
allocable to any Excess Contributions applicable to a subject Plan Year shall not be
treated as other than a reasonable method merely because the Trust’s income (or
loss) allocable to such Excess Contributions is determined on a date no more than
seven days before the distribution of such contributions.



     4. Effective as of January 1, 2006 and for the Plan’s plan years beginning on or after such
date, Section 5.2.1 of the Plan is amended in its entirety to read as follows.




     5.2.1 Subject to the provisions of Section 5.2.2 below, the Matching
Contributions for any Plan Year may be paid in one or more installments, but the
total amount to be contributed must be paid to the Trust on or before the last date
permitted by applicable law for deduction of such contributions for the tax year of
the Employer in which such Plan Year ends. In addition, any such Matching
Contributions that are allocated to a Participant’s Account under the subsequent
provisions of the Plan shall not in any event be contributed to the Trust (1) before
the Savings Agreement that results in the Savings Contributions with respect to
which the Matching Contributions are allocated is entered into by the Participant
or, except for occasional, bona fide administrative considerations, (2) before the
earlier of (x) the performance of the Participant’s services with respect to which
such Savings Contributions are made or (y) when the amount of such Savings
Contributions would be currently available to the Participant in the absence of such
Savings Agreement. Further, any such Matching Contributions shall be allocated
among Participants’ Accounts as of the last day of the Plan Year for which such
contributions are made or as soon as administratively practical after such
contributions are paid to the Trust, whichever is later.



     5. Effective as of January 1, 2006 and for the Plan’s plan years beginning on or after such
date, Sections 5A.2.1 and 5A.2.2 of the Plan are amended in their entireties to read as follows.




     5A.2.1 If, with respect to any Plan Year (for purposes of this Section 5A.2.1,
the “subject Plan Year”), an Eligible Participant who is a Highly Compensated
Employee for the subject Plan Year is or was eligible to participate in an
aggregatable plan of which a part is subject to the provisions of Section 401(m) of
the Code, then, for the purpose of determining the Actual Contribution Percentage of
the Eligible Participant for the subject Plan Year under this Plan, any
contributions made to such aggregatable plan that (1) are allocated to the Eligible
Participant’s account under such aggregatable plan as of any dates within the
subject Plan Year and (2) which would be treated as After-Tax Savings Contributions
or Matching Contributions made by or for the Eligible Participant for the subject
Plan Year had they been allowed and made under this Plan shall be treated as if they
were After-Tax Savings Contributions or Matching Contributions made by or for the
Eligible Participant under this Plan for the subject Plan Year. For purposes
hereof, an



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“aggregatable plan” is a plan other than this Plan which is qualified under
Section 401(a) of the Code, is maintained by an Associated Employer, and is not
prohibited from being aggregated with this Plan for purposes of Section 410(b) of
the Code under Treas. Reg. Section 1.410(b)-7.




     5A.2.2 For purposes of determining if the Average Actual Contribution
Percentage limits of Section 5A.1 above are met for any Plan Year (for purposes of
this Section 5A.2.2, the “subject Plan Year”), the Plan may treat any Pre-Tax
Savings Contributions (as provided for in Section 4 above) which are made on behalf
of an Eligible Participant who is treated as a Non-Highly Compensated Employee for
purposes of determining the Average Actual Deferral Percentage of the Non-Highly
Compensated Employees for the subject Plan Year or the immediately preceding Plan
Year (whichever of such Plan Years is used to determine such percentage for purposes
of the limits of Section 5A.1 which apply to the subject Plan Year) as being
Matching Contributions of such Eligible Participant for such Plan Year to the extent
the treatment of such Pre-Tax Savings Contributions as Matching Contributions is
helpful in meeting the limits of Section 5A.1 above for the subject Plan Year,
provided that (1) the limits of Section 4A.1 above are still met for the subject
Plan Year even if the Pre-Tax Savings Contributions being treated as Matching
Contributions hereunder are disregarded for purposes of meeting such limits and (2)
the Plan Year for which the Average Actual Deferral Percentage of the Non-Highly
Compensated Employees for the subject Plan Year is determined for purposes of
applying the Average Actual Deferral Percentage limits of Section 4A.1 above for the
subject Plan Year (which Plan Year may be the subject Plan Year or the immediately
preceding Plan Year) is the same Plan Year for which the Average Actual Contribution
Percentage of the Non-Highly Compensated Employees for the subject Plan Year is
determined for purposes of applying the Average Actual Contribution Percentage
limits of Section 5A.1 above for the subject Plan Year.



     6. Effective as of January 1, 2006 and for the Plan’s plan years beginning on or after such
date, Section 5A.3.3 of the Plan is amended in its entirety to read as follows.




     5A.3.3 (a) Any distribution or forfeiture of any portion of Excess Aggregate
Contributions which apply to a subject Plan Year and to an Eligible Participant
under the provisions of Sections 5A.3.1(c) and 5A.3.2 above shall be adjusted upward
for the Trust’s income allocable thereto (or downward for the Trust’s loss allocable
thereto) for the subject Plan Year and for the gap period that applies to the
subject Plan Year, as determined under this paragraph (b) below. For purposes of
this Section 54A.3.3, the “gap period” that applies to any subject Plan Year refers
to the period after the close of the subject Plan Year and prior to the distribution
or forfeiture.




                 (b) For purposes hereof, the Trust’s income (or loss) allocable to any Excess
Aggregate Contributions applicable to a subject Plan Year and applied to an Eligible
Participant for distribution or forfeiture purposes which is composed of a certain
type of contribution (e.g., After-Tax Savings Contributions or Matching
Contributions) shall be determined under any reasonable method that is adopted by
the Committee for this purpose. Such method shall be used consistently for all
Participants and for all corrective distributions or forfeitures made under the Plan
for the subject Plan Year, shall not violate the requirements of Code Section
401(a)(4), and shall be a method that is reasonably consistent with the method used
by the Plan for allocating income and losses to Participants’ Accounts for the
subject Plan Year. The method adopted by the Committee to determine the Trust’s
income (or loss) allocable to any Excess Aggregate



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Contributions applicable to a subject Plan Year shall not be treated as other
than a reasonable method merely because the Trust’s income (or loss) allocable to
such Excess Aggregate Contributions is determined on a date no more than seven days
before the distribution or forfeiture of such contributions.




          (c) In this regard, if the Matching Contributions that apply to any Plan Year
are not made to the Plan until after the end of such Plan Year, then the method of
allocating Trust income (or loss) to the portion of any Excess Aggregate
Contributions for such Plan Year which reflects Matching Contributions that is
adopted by the Committee does not have to allocate any Trust income (or loss) to
such Excess Aggregate Contribution portion for such Plan Year. Such method shall,
however, generally allocate some Trust income (or loss) to such Excess Aggregate
Contribution portion for the gap period that applies to such Plan Year.



     7. Effective as of January 1, 2006 and for the Plan’s plan years beginning on or after such
date, Section 7.3.1 of the Plan is amended in its entirety to read as follows.




     7.3.1 Any such hardship withdrawal must be requested by the Participant and
certified to be on account of an immediate and heavy financial need of the
Participant. Also, written documentation of the reason for requesting the
withdrawal may be required by the Committee or a Committee representative. Whether
a withdrawal is requested on account of an immediate and heavy financial need of the
Participant shall be determined by the Committee or a Committee representative on
the basis of all facts and circumstances. In this regard, a withdrawal shall be
considered to be requested on account of an immediate and heavy financial need of
the Participant if the request is on account of:




          (a) Expenses for (or necessary to obtain) medical care that would be deductible
to the Participant under Section 213(d) of the Code (determined without regard to
whether the expenses exceed 7.5% of adjusted gross income);




          (b) Costs directly related to the purchase (excluding mortgage payments) of a
principal residence of the Participant;




          (c) The payment of tuition, related educational fees, and room and board
expenses for up to the next twelve months of post-secondary education for the
Participant or his spouse, children, or dependents (as defined in Section 152 of the
Code but without regard to subsection (b)(1), (b)(2), or (d)(1)(B) thereof);




          (d) Payments necessary to prevent the eviction of the Participant from his
principal residence or the foreclosure on the mortgage of the Participant’s
principal residence;




          (e) Payments for burial or funeral expenses for the Participant’s deceased
parent, spouse, children, or dependent (as defined in Section 152 of the Code but
without regard to subsection (d)(1)(B) thereof);




          (f) Expenses for the repair of damage to the Participant’s principal residence
that would qualify for the casualty deduction under Section 165 of the Code
(determined without regard to whether the loss exceeds 10% of adjusted gross
income); or



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          (g) To the extent not included in any of the foregoing paragraphs, the need to
pay expenses to alleviate the Participant’s severe financial hardship resulting from
extraordinary and unforeseeable circumstances beyond the control of the Participant.



     IN ORDER TO EFFECT THE FOREGOING PLAN REVISIONS, the sponsor of the Plan hereby signs this
Plan amendment.



	 	 	 	 	 	 	 
	 	 	FEDERATED DEPARTMENT STORES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Title:
	 	/s/ David W. Clark
 

Senior Vice President, Human Resources
	 	 
	 

	 	Date:
	 	December 19, 2006	 	 







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