ADDENDUM TO EXECUTIVE RETENTION AND SEVERANCE AGREEMENTS RELATING TO SECTION 409A OF THE INTERNAL REVENUE CODE
Exhibit 10.18
ADDENDUM TO EXECUTIVE RETENTION AND SEVERANCE AGREEMENTS
RELATING TO SECTION 409A OF THE INTERNAL REVENUE CODE
RELATING TO SECTION 409A OF THE INTERNAL REVENUE CODE
Introduction
Deluxe Corporation, a Minnesota corporation (the “Company”) and the executive named below (the
“Executive”) are parties to an Executive Retention Agreement (the “Retention Agreement”) dated
, 200 .
The Compensation Committee of the Company has approved this Addendum to each of the Retention
Agreements for the purpose of insuring that the benefits provided under the Retention Agreement
will be paid in a manner that complies with Section 409A of the Internal Revenue Code and the IRS
regulations thereunder (“Section 409A”). If this Addendum is accepted by the Executive, it shall
become part of the Retention Agreement. Acceptance of the Addendum is completely voluntary on the
part of each Executive, and an Executive’s failure to accept the Addendum will not in any way
affect his rights under the Retention Agreement. However, an Executive who fails to accept the
Addendum by December 31, 2008, may be subject to tax penalties under Section 409A, for which the
Company will have no responsibility.
If the Company and the Executive are parties to more than one Executive Retention Agreement,
this Addendum, if accepted by the Executive, shall apply to each such Executive Retention
Agreement. In addition, if the Company and the Executive are parties to either an employment
agreement or a letter agreement (a “Severance Agreement”) providing for the payment of severance to
the Executive if the Executive’s employment is terminated under certain circumstances prior to the
Effective Date as defined in the Retention Agreement, certain provisions of this Addendum shall
also apply to the Severance Agreement.
The Company and the Executive agree that the payment of the benefits provided in the Retention
Agreement shall be governed by the following rules:
1. If the Executive wishes to elect to defer the receipt of any Annual Incentive Payment
pursuant to the last sentence of Section III.B.2, such election shall be made prior to the
beginning of the fiscal year for the Annual Incentive Payment in accordance with the Deluxe
Corporation Deferred Compensation Plan (2008 Restatement) (the “Deferred Compensation Plan”), and
such deferral election shall be otherwise governed by the terms of the Deferred Compensation Plan.
2. Any reimbursement of medical expenses (including dental, prescription, vision, or similar
expenses) incurred by the Executive or his dependents pursuant to continued coverage of the
Executive after the Date of Termination pursuant to Section V.A.2, V.B. or V.C shall be paid to the
Executive or dependent not later than the end of the year following the year in which such expense
is incurred. This provision is intended to establish the latest possible date for payment as
required by Section 409A, and shall not be interpreted to justify delaying any reimbursement beyond
the date it would normally have been paid.
3. If there is a dispute concerning the reason for a termination of employment pursuant to
Section IV. F. the following rules shall apply:
(a) The Executive shall take prompt and reasonable, good faith efforts to collect the amount
of benefits that the Executive claims under the Retention Agreement. The Executive shall accept
any partial payment offered by the Company, but only if such payment may be accepted without
prejudicing the Executive’s claim to the balance of the amount claimed. The Executive shall
commence appropriate action to collect the amount claimed not later than 180 days after the date
the notice is given that a dispute exists. The failure of the Executive to take any such
enforcement action shall not prejudice the Executive’s right to the benefits claimed under the
Retention Agreement, but may result in adverse tax consequences for the Executive pursuant to
Section 409A.
(b) Any benefit the payment of which was delayed beyond the date on which it would otherwise
have been paid because of the dispute shall be paid not later than the last day of the year in
which the dispute is resolved (or such earlier date as may be specified in the agreement or
judgment resolving the dispute.
(c) Each payment of compensation paid to the Executive during the dispute pursuant to Section
IV.G shall be treated as a separate payment for all purposes of Section 409A.
4. Any Gross-Up Payment to which the Executive is entitled pursuant to Section VIII shall be
paid to the Executive not later than the end of the year following the year in which the Executive
pays the Excise Tax upon which the Gross-Up Payment is based. This provision is intended to
establish the latest possible date for payment as required by Section 409A, and shall not be
interpreted to justify delaying any Gross-Up Payment beyond the date it would normally have been
paid.
5. If the Executive is also party to a Severance Agreement, the following provisions shall
apply:
(a) Each payment of severance pursuant to the Severance Agreement shall be treated as a
separate payment for all purposes of Section 409A.
(b) All severance payable under the Severance Agreement shall in any event be paid not later
than the end of the second year following the year in which the Executive’s employment is
terminated. This provision is intended to establish the latest possible date for payment as
required by Section 409A, and shall not be interpreted to justify delaying any payment of severance
beyond the date it would normally have been paid.
(c) Any separation and release agreement referred to in the Severance Agreement must be signed
early enough so that the seven day revocation period after the Executive signs the agreement and
release will expire prior to March 15 of the year following the year that includes the Termination
Date. The Company will furnish the agreement and release to the Executive so that the Executive
has sufficient time to consider and sign the agreement and release. Upon the expiration of the
revocation period without rescission of the agreement or the release by the Executive, any payments
that would have previously been paid during those periods under the
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Company’s payroll schedule shall be paid to the Executive in a lump sum, and all subsequent
payments shall be made in accordance with the normal payroll schedule.
(d) If any portion of the severance the Executive becomes entitled to receive under the
Retention Agreement constitutes a substitute, within the meaning of Section 409A, for payments the
Executive would have been entitled to receive under the Severance Agreement which constitute a form
of deferred compensation subject to Section 409A, and if the Executive’s Termination of Employment
does not occur within two years following a transaction that constitutes a “change in control
event” as defined in Section 409A, such portion shall be paid at the same time and in the same
manner as provided in the Severance Agreement.
6. If the Executive is a Key Employee at the time of his Termination of Employment, each of
the amounts listed below that would otherwise have been paid within six months following his
Termination of Employment shall instead be paid on the first business day following the day that is
six months after his Termination of Employment. For purposes of this Addendum, the terms
“Termination of Employment” and “Key Employee” shall have the same meaning as in the Deferred
Compensation Plan.
(a) Any “Other Benefits” payable pursuant to Section V.A.5, and any welfare benefits payable
pursuant to Section V.A.2 that are neither medical benefits nor a form of disability pay nor death
benefit as defined in Section 409A, but only to the extent that the total value of all such
benefits exceeds $5,000.
(b) Any continued payments of compensation payable during a dispute pursuant to Section IV.G,
or any payments of severance pursuant to the Severance Agreement, but only if such payments are
payable after March 15 of the year following the year that includes the Date of Termination, and
only to the extent that the total value of all such payments paid after such date exceeds two times
the lesser of the Executive’s base salary on the last day of the year preceding the year that
includes the Date of Termination or the compensation limit under Section 401(a)(17) of the Code for
the year that includes the Date of Termination.
(c) Any Gross-Up Payment to which the Executive is entitled pursuant to Section VIII, if the
Gross-Up Payment would not have been payable if the Executive had not had a Termination of
Employment.
(d) Any other amount if the Committee determines in good faith that such deferral of payment
is required by Section 409A.
7. Any taxable benefit payable under the Retention Agreement for which no other time of
payment is specified shall be paid not later than the last day of the year in which the Executive’s
right to such payment is fixed and determinable, or, if such benefit constitutes a right to
reimbursement, the last day of the year following the year in which the reimbursable expense in
incurred. Except for medical expenses, any limit on the Executive’s right to receive taxable
reimbursement payments or in-kind benefits in any year shall not be affected by the amount of
payments or benefits received in any other year.
8. The purpose of this Addendum is solely to establish the time and form of payment of certain
benefits otherwise payable under the Retention Agreement in the manner required by
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Section 409A. Nothing in this Addendum shall be interpreted to either reduce or increase the
amount of benefits to which the Executive is entitled. The Committee shall to the maximum extent
permitted by law interpret the Agreement, and make all benefit payments, in a manner that satisfies
the requirements of Section 409A.
The undersigned Executive hereby voluntarily accepts the terms of this Addendum, which upon
such acceptance shall form part of the Retention Agreement (and Severance Agreement if applicable).
| EXECUTIVE: | ||||||||
| Name: | ||||||||
| Dated Signed: | ||||||||
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