Exhibit 10.7
AMENDMENT 2005-2
TO THE
NORDSTROM 401(K) PLAN & PROFIT SHARING
(2004 Restatement)
The Nordstrom 401(k) Plan & Profit Sharing (the "Plan") is amended as follows
effective January 1, 2006, to make required and permitted technical and
administrative changes pursuant to final Treasury regulations issued under
Sections 401(k) and (m) of the Internal Revenue Code of 1986, as amended, to add
a Qualified Non-Elective Contribution feature, and to provide for a special rule
regarding the treatment of Hours of Service for certain Employees affected by
Hurricanes Rita and Wilma:
1. Section 2.14 Hour of Service is amended to include new subsection 2.14-5
Certain Time Lost Due to 2005 Hurricanes as follows in order to give certain
participants credit for hours of service that were scheduled to be worked but
which could not be worked due to Hurricanes Rita and Wilma:
"2.14 Certain Time Lost Due to Hurricanes. Notwithstanding anything in 2.14
to the contrary, for any Employee whose regular workplace during the period
September 1, 2005, through November 30, 2005, was within 100 miles of
either the Houston, Texas or Miami, Florida, metropolitan areas, such
Employee's Hours of Service during this September 1, 2005 - November 30,
2005 period shall include any regularly scheduled hours that the Employee
was unable to work due to circumstances related to either Hurricane Rita or
Hurricane Wilma, regardless of whether such hours are paid or unpaid."
2. Section 5.1-2 Allocation of Employer Profit Sharing Contributions is amended
to reflect the addition of Qualified Non-Elective Contributions by inserting the
following sentence at the beginning of such section:
"The portion of the Employer Profit Sharing Contribution that is not
treated as a QNEC under 5.1-6 shall be allocated pursuant to this 5.1-2."
3. Section 5.1-2 Allocation of Employer Profit Sharing Contributions is amended
for clarification purposes by inserting the following sentence at the end of
such section:
"A Participant's Years of Service for Hypothetical Allocation Contribution
purposes shall be the same as the Participant's Years of Service used for
vesting purposes, as determined in Article VIII."
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4. Section 5.1-6 Treatment as QNEC is added to permit the Board to designate a
portion of the Employer Profit Sharing Contribution as a Qualified Non-Elective
Contribution:
"5.1-6 Treatment as QNEC. To the extent necessary to pass the
non-discrimination tests under 6.8 and subject to the limitations under
5.9-3, the Board may direct the Committee to treat and allocate a portion
of the Employer Profit Sharing Contribution declared under 5.1-2 as a
QNEC."
5. Section 5.9 Qualified Non-Elective Contributions is added to the Plan to
specify how Qualified Non-Elective Contributions are allocated:
"5.9 Qualified Non-Elective Contributions.
5.9-1 Generally. A "Qualified Non-Elective Contribution" (QNEC) means
a non-elective contribution which is 100% non-forfeitable at all times, is
subject to the distribution restrictions under 9.8, is allocated to the
Participant's QNEC Account as of a date within the Plan Year being tested,
and is actually contributed to the Plan within the 12 month period
immediately following such Plan Year. A QNEC under this 5.9 shall include
Employer Profit Sharing Contributions treated as QNECs pursuant to 5.1-6
and shall be considered an Employer contribution for purposes of the
Employer's minimum employer contribution obligations under 12.4.1.
5.9-2 Allocation of QNECs. QNECs will be allocated to the QNEC Account
of each Participant who meets the eligibility requirements under 5.9-4 in
reverse order of Compensation as provided for herein, subject to the
limitations under 5.9-3. The QNEC will be allocated to the eligible
Participant with the lowest Compensation until all of the QNEC has been
allocated. If two or more eligible Participants have the same Compensation,
the QNEC will be allocated equally to each eligible Participant until all
of the QNEC has been allocated. If any QNEC remains unallocated, this
process is repeated for the eligible Participant(s) with the next lowest
level of Compensation in accordance with this paragraph until all of the
QNEC is allocated, within the limits provided under 5.9-3. The portion of
any QNEC that cannot be allocated due to the limitations under 5.9-3 shall
be treated as an additional Employer Profit Sharing Contribution and
allocated pursuant to 5.1.
5.9-3 QNEC Allocation Limits. The maximum QNEC allocated to any
eligible Participant shall not exceed the least of:
(a) the amount sufficient to satisfy the ADP or ACP test(s) under
6.8;
(b) the Participant's Annual Addition Limitation for the Plan
Year under 6.6; or
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(c) the amount equal to the Participant's Compensation multiplied
by the greater of:
(1) five percent (5%); or
(2) two times the Plan's Representative Contribution Rate.
5.9-4 QNEC Eligibility. Eligibility to receive QNEC allocations for a
Plan Year is limited to Participants who, as of the last day of such Plan
Year, are: (a) Non-Highly Compensated Employees; (b) eligible to receive
Employer Matching Contributions pursuant to 5.3-2; and (c) not included in
the "otherwise excludible" testing group under 6.8-2.
5.9-5 Representative Contribution Rate. The "Representative
Contribution Rate" for purposes of 5.9-3(c)(2) is the lowest Applicable
Contribution Rate of any eligible Participant among a group of eligible
Participants that consists of half (50%) of all eligible Participants for
the Plan Year or, if greater, the lowest Applicable Contribution Rate of
any eligible Participant in the group of all eligible Participants for the
Plan Year and who is employed by the Employer on the last day of the Plan
Year.
5.9-6 Applicable Contribution Rate. The "Applicable Contribution Rate"
under 5.9-5 for an eligible Participant equals the Participant's QNEC
allocation for a Plan Year divided by the Participant's Compensation for
the same period.
5.9-7 Compensation for QNEC Purposes. Compensation for purposes of
this 5.9 is Compensation under 6.8-2(d).
5.9-8 Investment of QNEC Accounts. A Participant's QNECs will be
invested in the same manner as his or her Elective Deferral Contributions."
6. Section 6.8 Contribution Limits for Highly Compensated Employees is replaced
in its entirety with the following in order to comply with the requirements of
the final Treasury Regulations issued under Code sections 401(k) and 401(m):
"6.8 Contribution Limits for Highly Compensated Employees.
6.8-1 Non-Discrimination Tests. For each Plan Year, the Plan shall
satisfy the nondiscrimination tests in Code sections 401(k)(3) and 401(m)
in accordance with Treasury Regulation sections 1.401(k)-2 and 1.401(m)-2.
The applicable Code and Regulation sections are incorporated by this
reference. The following provisions shall be applied in a manner consistent
with such Code and Regulation sections.
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6.8-2 Determining the ADP and ACP. For each Plan Year, the Committee
shall determine the Actual Deferral Percentage ("ADP") and the Actual
Contribution Percentage ("ACP") of the Eligible Employees who are Highly
Compensated Employees under 2.13 and the ADP and ACP of the remaining
Eligible Employees in two separate groups. Employees under age 21 or who
have less than one Year of Service as of the end of the Plan Year are one
group (the "otherwise excludable group"), and all other Employees are the
other group. The "otherwise excludable group" shall not consist of any
Highly Compensated Employees. The ADP and ACP shall be determined as
follows:
(a) The ADP (and ACP) for the Highly Compensated Employees and
for the remaining Employees is the average of the Actual Deferral
Rates (or Actual Contribution Rates) for all eligible Employees within
their respective groups. The ADP (and ACP) for a group of eligible
Employees shall be calculated to the nearest hundredth of a percentage
point.
(b) An Employee's Actual Deferral Rate ("ADR") is the sum of that
individual's Basic Elective Deferral Contributions and QNECs for the
Plan Year, divided by such Employee's Compensation under (d). The ADR
is calculated to the nearest hundredth of a percentage point.
Notwithstanding anything in the foregoing to the contrary:
(1) Elective Deferral Contributions made pursuant to
5.7-1(b) (relating to Employees returning from qualified military
service) shall not be taken into account when determining an
Employee's ADR for the Plan Year for which the Basic Elective
Deferral Contributions are made or for any other Plan Year.
(2) Excess Deferrals which exceed the limitations under Code
Section 402(g)(3) shall be taken into account as Basic Elective
Deferral Contributions when determining a Highly Compensated
Employee's ADR for the Plan Year, even if those Excess Deferrals
are distributed pursuant to 5.2-5.
(3) Excess Deferrals which exceed the limitations under Code
Section 402(g)(3) shall not be taken into account as Basic
Elective Deferral Contributions when determining a Non-Highly
Compensated Employee's ADR for the Plan Year, to the extent such
deferrals are prohibited under Code Section 401(a)(30). However,
to the extent such amounts are not prohibited under Code Section
401(a)(30), they shall be taken into account for ADR purposes,
whether or not distributed pursuant to 5.2-5.
(c) An Employee's Actual Contribution Rate ("ACR") is that
individual's Employer Matching Contributions for the Plan Year,
divided by such
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Employee's Compensation under (d), subject to (e). The ACR is
calculated to the nearest hundredth of a percentage point.
Notwithstanding anything in the foregoing to the contrary:
(1) Employer Matching Contributions made pursuant to
5.7-1(c) (relating to Employees returning from qualified military
service) shall not be taken into account when determining an
Employee's ACR for the Plan Year for which the Employer Matching
Contributions are made or for any other Plan Year.
(2) Any Employer Matching Contributions that are forfeited
because the Elective Deferral Contributions to which they relate
are treated as Excess Contributions or Excess Deferrals shall not
be taken into account when determining an Employee's ACR for the
Plan Year.
(d) Compensation for ADR and ACR purposes is Compensation under
2.6, or such other definition of compensation permitted by Code
section 414(s) in lieu thereof. Only Compensation earned while an
Eligible Employee shall be considered for this purpose.
(e) The Committee may for any Plan Year treat Basic Elective
Deferral Contributions or QNECs not needed to pass the ADP test as
Employer Matching Contributions for purposes of the ACP test. No
single contribution may be used in both tests.
(f) The following shall be aggregated to determine the ADR and
the ACR:
(1) All Plans that are aggregated with this Plan under Code
sections 401(a)(4) and 410(b) (other than for purposes of the
average benefit percentage test).
(2) All cash and or deferred arrangements sponsored by the
Employer in which the same Highly Compensated Employee is
eligible to participate.
6.8-3 ADP and ACP Limitations. Neither the ADP nor the ACP of the
Highly Compensated Employees may exceed the greater of the following:
(a) 1.25 times the ADP or ACP of the remaining employees for the
appropriate Plan Year.
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(b) 2 percentage points higher than the ADP or ACP of the
remaining employees, up to 2 times such ADP or ACP for the appropriate
Plan Year.
6.8-4 ADP and ACP Testing Methodology.
(a) Generally. The Plan elects to use the current year testing
method in computing the ADP and ACP for Non-Highly Compensated
Employees under the nondiscrimination rules of Code sections 401(k)
and 401(m).
(b) Regulatory Incorporation. For purposes of the limitations
under this 6.8, the provisions of Code sections 401(k)(3) and
401(m)(3) together with their specific underlying Treasury Regulations
and subsequent Internal Revenue Service guidance issued thereunder are
hereby incorporated into this Plan by reference."
7. Section 6.9 Correcting Excess Contributions is replaced in its entirety with
the following in order to comply with the requirements of the final Treasury
Regulations issued under Code sections 401(k) and 401(m):
"6.9 Correcting Excess Contributions.
6.9-1 Determine the Excess Contribution Amounts. If the ADP or ACP of
the Highly Compensated Employees exceeds the limits in 6.8-3, the Committee
shall adjust the contributions for certain Highly Compensated Employees, as
follows:
(a) Correcting for ADP Failures. If the ADP limit is exceeded,
Basic Elective Deferral Contributions shall be reduced taking the
highest individual dollar amount first. Basic Elective Deferral
Contributions reduced under this provision shall not be eligible for
Employer Matching Contributions.
(b) Correcting for ACP Failures. If the ACP limit is exceeded,
Employer Matching Contributions shall be reduced taking the highest
individual dollar amount first.
6.9-2 Excess Contribution Reductions. Amounts reduced under 6.9-1
shall be forfeited, withheld or distributed as follows:
(a) Any amount reduced from Employer Matching Contributions shall
be forfeited, with related earnings, as follows:
(1) Any amount reduced under 6.9-1(b) shall be forfeited to
the extent of any unvested balance in the Employer Matching
Contribution
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account of the Highly Compensated Employee to whom it applies.
The unvested balance shall be determined before the reduction.
(2) Amounts forfeited shall be treated in accordance with
6.5.
(b) Any Employer Matching Contribution for which eligibility is
lost under 6.9-1(a) because a Basic Elective Deferral Contribution was
reduced shall not be contributed and thus shall neither be forfeited
nor distributed.
(c) Subject to (d) and (e), any contributed amount not forfeited
under (a) shall be distributed to the Highly Compensated Employees to
whom it applies. The distribution shall be adjusted for allocable gain
or loss, determined under applicable Regulations, for the Plan Year in
which the excess arose ("Plan Year income"). Distribution of such
amounts generally may be made within two and a half (2 1/2) months
after the end of the Plan Year to which the excess applies and in any
event by the end of the following Plan Year.
(d) A distribution under (c) because of an ADP limitation shall
be reduced by the amount of any Excess Deferral previously withdrawn
under 5.2-5 for the same Plan Year.
(e) In addition to adjustment for Plan Year income under (c), the
distribution shall be further adjusted for gain or loss for the "gap
period" (the period after the close of the Plan Year and prior to the
distribution) ("gap period income"). Gap period income shall be
determined using the "safe harbor method" prescribed under Treas. Reg.
sections 1.401(k)-2(a)(2)(iv)(D) and 1.401(m)-2(a)(2)(iv)(D).
Specifically, gap period income on Excess Contribution Amounts shall
be equal to ten percent (10%) of the Plan Year income as determined in
(c) above, multiplied by the number of calendar months that have
elapsed since the end of the Plan Year. When calculating the number of
calendar months that have elapsed for purposes of this paragraph, a
corrective distribution that is made on or before the fifteenth day of
a month is treated as made on the last day of the preceding month and
a corrective distribution that is made after the fifteenth day of a
month is treated as made on the last day of the month."
8. Section 8.2 Forfeiture of Benefits for Certain Causes is replaced in its
entirety with the following for clarification purposes:
"8.2 Forfeiture of Benefits for Certain Causes. Notwithstanding any other
provisions of this Plan to the contrary, the right of any Participant or former
Participant to receive or to have paid to any other person and the right of any
such other person to receive Employer Profit Sharing or Employer Matching
Contributions hereunder shall terminate and shall be forever forfeited if such
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Participant's employment with the Employer is terminated because of his or her
fraud, embezzlement or dishonesty or any willful act which injures the Employer
or the Employee's fellow workers. This section shall be inapplicable as of the
earliest of the following dates:
(a) the date the Participant meets the requirements for normal
retirement benefits under 9.1;
(b) the date the Participant completes five (5) Years of Service
with respect to Employer Profit Sharing Contributions or three (3)
Years of Service with respect to Employer Matching Contributions;
(c) the date the Plan terminates; or
(d) the date contributions to the Plan have been completely
discontinued.
Notwithstanding the provisions of 8.2, should the Plan become a top heavy plan
as defined in 12.2, only that portion of a Participant's account which is not
vested under the vesting schedule set forth at 12.4 of this Plan shall be
subject to forfeiture."
9. Section 8.5-1 Service After a Break in Vesting Service is amended by
replacing subsections (b)(1) and (2) in their entirety with the following in
order to comply with the requirements of the final Treasury Regulations issued
under Code sections 401(k) and 401(m):
"8.5-1 Service After a Break in Vesting Service.
* * *
(b) Account After the Break. * * *
(1) General Crediting Rule. Upon completing a Year of
Service after reemployment, the Participant shall be credited
with all Years of Service, including Years of Service prior to
the Break in Vesting Service which have not been forfeited under
(b)(2) below, in determining such Participant's vested interest
in that portion of the Participant's account balance attributable
to contributions, earnings and losses after the Break in Vesting
Service. This 8.5-1(b)(1) shall apply to any Participant who, at
the time of severance of employment, either was vested in his or
her Employer Profit Sharing or Employer Matching Contribution
Accounts or had an account that was subject to the limitations of
9.8 (i.e., an Elective Deferral Account or a QNEC Account).
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(2) Exclusion of Forfeited Service. This provision applies
to a Participant who experiences a Break in Vesting Service prior
to acquiring a nonforfeitable interest under the Plan, and who
subsequently is reemployed by an Employer. This paragraph does
not apply to a Participant who at the time of severance of
employment had an Elective Deferral Account or a QNEC Account
because such a Participant is deemed to have acquired a
nonforfeitable interest under the Plan for purposes of this
8.5-1(b)(2). If this paragraph applies to a Participant and the
Participant's number of consecutive one (1) year Breaks in
Vesting Service equals or exceeds the greater of (i) five (5), or
(ii) the aggregate number of his of her Years of Service, whether
or not consecutive, completed prior to such Break in Vesting
Service (other than Years of Service which may be disregarded on
account of a prior Break in Vesting Service), Years of Service
before the Break in Vesting Service shall not be counted for the
purpose of determining the vested percentage of the Participant's
account balance derived from Employer contributions to the Plan
on the Participant's behalf after such Break in Vesting Service."
10. Section 9.4 Benefits on Severance from Employment is replaced in its
entirety with the following in order to comply with the requirements of the
final Treasury Regulations issued under Code sections 401(k) and 401(m):
"9.4 Benefits on Severance from Employment. Upon the severance of a
Participant's employment with the Employer prior to his or her death, Disability
or Retirement, the Participant shall be entitled to distribution of his or her
vested account balance. Distribution of benefits on account of a Participant's
severance from employment with the Employer as provided herein shall be made to
the Participant in accordance with the provisions of Article X. A change in
employment from Employee to Leased Employee status shall not be considered a
severance from employment for purposes of this 9.4."
11. Section 9.7 Hardship Withdrawals is replaced in its entirety with the
following in order to comply with the requirements of the final Treasury
Regulations issued under Code sections 401(k) and 401(m), to expand the
financial need events which qualify as an "immediate and heavy financial need"
for hardship withdrawal purposes, and to clarify the eligibility of withdrawn
Elective Deferral Contributions for Employer Matching Contributions during the
year of withdrawal:
"9.7 Hardship Withdrawals. At the direction of the Administrator and in
accordance with uniform rules consistently applied, the Administrator may direct
the Trustee to distribute a Participant's Rollover Account, Elective Deferral
Contributions and Employer Profit Sharing Contributions to the Participant in
the case of "hardship" pursuant to 9.7-1 to -7 below. A
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Participant receiving a hardship distribution will be ineligible to make
Elective Deferral Contributions (including Catch-up Contributions) for the
period of six (6) consecutive months following the hardship withdrawal.
9.7-1 Maximum Amount. * * *
9.7-2 Financial Hardship. The term "hardship" as used herein shall
mean an immediate and heavy financial need resulting from any one or more
of (a) through (g), below:
(a) uninsured expenses for (or necessary to obtain) medical or
dental care that would be deductible under Code section 213(d)
(determined without regard to whether the expenses exceed 7.5% of the
Participant's adjusted gross income) incurred or to be incurred by the
Participant or the Participant's spouse or dependents (where a
Participant's dependents include Participant's noncustodial children
who are treated as dependents pursuant to Code section 213(d)(5),
provided however that expenses with respect to any such noncustodial
children exclude nonprescription drugs or medicine, other than
insulin);
(b) costs directly related to the purchase (excluding mortgage
payments) of a principal residence for the Participant;
(c) payment of tuition, related educational fees, and room and
board expenses for up to the next twelve (12) months of post-secondary
education for the Participant or the Participant's spouse, children or
dependents;
(d) payments necessary to prevent the eviction of Participant
from his or her principal residence or to prevent foreclosure on the
mortgage of Participant's principal residence;
(e) payments for burial or funeral expenses for the Participant's
deceased parent, spouse, children or dependents; or
(f) uninsured expenses for the repair of damage to the
Participant's principal residence that would qualify for the casualty
deduction under Code section 165 (determined without regard to whether
the loss exceeds 10% of the Participant's adjusted gross income);
(g) any tax obligation which becomes payable on account of a
distribution for any hardship described in (a) through (f), above.
For purposes of this 9.7-2, the term "dependents" shall have the meaning
prescribed under Code section 152, without regard to subsections (b)(1),
(b)(2) and (d)(1)(B).
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9.7-3 Representation that Distribution is Necessary to Satisfy
Financial Need. A distribution under 9.7 can only be made to the extent it
is necessary to satisfy an immediate and heavy financial need.
(a) A distribution is necessary to satisfy an immediate and heavy
financial need only to the extent that:
(1) the amount of the distribution is not in excess of the
amount required to satisfy the financial need; and
(2) the financial need cannot be satisfied from other
resources reasonably available to the Participant, as determined
by the Administrator on the basis of all relevant facts and
circumstances.
(b) The Administrator shall require the Participant to provide
written certification of the facts and circumstances establishing that
Participant has met one of the hardship categories and may consider
other relevant evidence. Such written certification shall require the
Participant to represent that the financial need cannot reasonably be
relieved (1) through reimbursement or compensation by insurance or
otherwise; (2) by liquidation of the Participant's assets; (3) by
cessation of Elective Deferrals under the Plan; (4) by other currently
available distributions and nontaxable loans under the Plan and under
any other plan maintained by the Employer or by any other employer; or
(5) by borrowing from commercial sources on reasonable commercial
terms in an amount sufficient to satisfy the need. A Participant's
need cannot reasonably be relieved by taking one of the above actions
(1) through (5) if the effect would be to increase the amount of the
need.
(c) For purposes of (a)(2), the Administrator is entitled to rely
on the Participant's representation made pursuant to (b), unless the
Administrator has actual knowledge to the contrary.
9.7-4 Fee. * * *
9.7-5 Valuation. * * *
9.7-6 Withdrawal Precludes Match. Notwithstanding anything in the Plan
to the contrary, Elective Deferral Contributions made with respect to any
given Plan Year are not treated as eligible for Employer Matching
Contributions to the extent such Elective Deferral Contributions are
withdrawn during such Plan Year; for purposes of this paragraph, hardship
distributions withdrawn during a Plan Year shall be deemed to be made from
the most recent Elective Deferral Contributions made by the Participant.
There are no Employer Matching Contributions on Catch-up Contributions
under any circumstances.
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9.7-7 Ordering Rule. * * *"
12. Section 9.8 Restrictions on Distributions of Elective Deferrals is replaced
in its entirety with the following to reflect the addition of Qualified
Non-Elective Contributions:
"9.8 Restriction on Distributions of Elective Deferrals. Amounts
attributable to Elective Deferral Contributions and QNECs under this Plan may
not be distributed prior to the occurrence of one of the following events:
termination of employment with all Employers, the Participant's death or
Disability, the Participant's attaining age fifty-nine and one-half (59 1/2), or
the Participant's establishment of a hardship under 9.7."
13. Section 15.3-1 Termination Event is amended by replacing subsection (c) in
its entirety with the following in order to comply with the requirements of the
final Treasury Regulations issued under Code sections 401(k) and 401(m):
"(c) Merger or Consolidation. In the case of any merger or
consolidation with, or transfer of assets or liabilities to, any other
plan, each Participant of this Plan shall receive a benefit which is
equal to the benefit he/she would have been entitled to receive
immediately before the merger or consolidation as if the Plan had then
terminated. Moreover, prior to any transfer pursuant to this
15.3-1(c), the administrator of the transferee plan shall provide
adequate assurances and representations to the Administrator that
those portions of Participant accounts that are subject to the
limitations of 9.8 as of the date of transfer shall subsequently
remain subject to such limitations under the transferee plan. However,
this provision shall not be construed to be a termination or
discontinuance of the Plan or to be a guaranty of a specified level of
benefit from the Plan."
* * * * *
SIGNED pursuant to proper authority this 22nd day of December, 2005.
Attest: NORDSTROM, INC.
By: /s/ Brenda McCracken By: /s/ Delena Sunday
--------------------------------- ------------------------------------
Delena Sunday
Title: Benefits Compliance and Executive VP, Corporate HR &
Governance Analyst Diversity Affairs
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