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if the incentive is based on the fortunes of the company

more generally (a percentage of overall revue or profit,

for example, or an amount payable when the company

reaches certain financial milestones), it is more likely

considered a bonus, and therefore not subject to the

Wage Act.

There is an important balance to strike here: if you

are seeking to attract top talent, you may do better with a

compensation plan that is concrete and tied to a

mathematical formula than you would with a lower

salary and a discretionary bonus, as the prospective

employee will discount the value of the bonus because it

is uncertain. You can almost have it both ways, however,

if you structure your bonus plan to be tied to the revenue

or profitability of the business as a whole. Just remember

that any commitment to a non-discretionary bonus could

70| Rules of the Road