Separation Pay plan -- timing of amendment

[Guest Mr. Kite]

Belatedly reviewing executive agreement separation pay provisions whereby the executive will receive a year's salary upon involuntary termination without cause. Currently the executive's salary is well under twice the 401(a)(17) amount, but it's rising fast.

I assume I can amend the agreement now to cap the payment -- that is, the amount would not be subject to 409A if involuntarily terminated today.

Am I correct? The 2x compensation provision indicates that only amounts in excess of the limit are subject to 409A (assuming other involuntary separation plan rules are satisfied).