Employer can avoid payment

[Guest long]

Employer has option under employment agreement to not make deferred comp payments (payable in equal set amounts over 5 years) if, at time of payment, the payments violate any law or the corporate bylaws or cause the corporation to be insolvent. Any reason to think this violates 409A?

[Just Me]

The reference to the corporate by laws makes me a little nervous. Seems like the IRS could find this ripe for abuse.