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well...playing devil's advocate here, the NOIT is a notice of intent to terminate, correct? so handing out the NOIT doesn't mean any formal action has been taken to terminate the plan, it is just notifying the participants that the plan will terminate at a future date.

403(b) is subject to universal availability. However, one the exceptions to the universal availability requirements is to exclude any employee who is eligible to defer under another vehicle (i.e. 401(k) or 457(b)). So, by writing the 401(k) to exclude the CEO, CFO, and Director of Finance, you achieve two things: Have them excluded from the ADP test in the 401(k) plan while having them as the only employees who may defer under the 403(b) plan. I cannot detect an issue on the surface. Good Luck!

Of course, thanks. The 2-year idea was on my brain at the time of the post as we were proposing a 2-plan combo: profit sharing, not 401(k), with DB - both with a 2-year entry requirement.

Re the vendors' assertions that the business "can't have any employees", one possible reason is that they don't know what they're talking about. Many vendors put these solo 401(k)s in a completely separate department from their normal qualified plans department, and the people therein simply don't know anything about pensions. I have had the same argument with both vendors you mention trying to get them to transfer funds in a takeover situation without processing 1099-Rs, for example.