This time next week, many of us will be attending the 26th Annual NASPP Conference and/or the 15th Annual Executive Compensation Conference. One of the many topics that will be discussed at the conference will be companies’ strategic response to the TCJA changes to Sec. 162(m) and Notice 2018-68 by Art Meyers, Takis Makridis, and me in our “Hot Topics in Equity Compensation” panel.

Last week, I led a discussion of 162(m) and Notice 2018-68 at fellow blogger Mark Borges’ ABA Business Law Subcommittee Meeting on Employee Benefits, Executive Compensation, and Section 16, at which participants confirmed that the nine compensation designs and strategies that may help limit the impact of Sec. 162(m) are as follows:

  1. Scrutinize the Executive Order (EO) Setting and Named Executive Officer (NEO) Selecting Processes
  2. Non-Qualified Deferred Compensation or SERP Plans
  3. Coordinated Non-Qualified Plan Distributions
  4. Automatic or Voluntary Deferral of RSUs or Annual Bonus
  5. Qualified Plan SERP-Switch
  6. Code Sec. 409A Allowed Deferral
  7. Coordinated Non-Qualified Option Exercises
  8. Incentive Stock Options
  9. New Code Sec. 199A