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Don't Abandon All Hope of Grandfathering Protection Under Section 162(m)
Winston & Strawn LLP, via Lexology; free registration required Link to more items from this source
Oct. 24, 2018

The question of enforceability under state contract law could be based on ... [1] Past practice, e.g., has the company paid performance bonuses every year based on the actual performance results, and not arbitrarily reduced the payout amount? [2] Whether the contract imposes limits on when or how the company can exercise its discretion ... [3] Whether the performance metrics, goals, and thresholds were set forth in writing and communicated to the executives and, if so, how clear were those communications?"

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