Short-term amendment ... possible?

[Guest AEA]

I have a client that is being purchased as part of a stock sale. The sale is set to close several weeks before the end of the plan year and the plan has a last day requirement to receive an allocation of the match. Client wants an amendment providing an exception to the last day rule for participants employed on the sale/merger date but involuntarily terminated before the end of the plan year. Client has asked that the amendment only be effective from a short time before the proposed sale date to the end of the plan year. It appears that if the sale takes place during the 2006 plan year, no exception will apply for the match allocation.

The more I think about this, the more it bothers me - but I am unable to pinpoint why. I keep thinking that it is a discrimination issue, but the amendment would be tied to when the sale occurs and not when any particular group is terminated. However, an amendment that says "Effective from 11/1/2005 to 12/31/05, participants who ... are excepted from the last day rule" just seems to "smell".

Any thoughts?