Delaying Vesting on Restricted Stock--Does 409A Apply

[401 Chaos]

Suppose you have outstanding restricted stock that automatically vests upon a change in control. Change in control is currently pending--agreement signed but deal has not closed and will not for another month or two. If the closing occurs as scheduled, it will be during the middle of a blackout period and recipient will not be able to sell shares to cover taxes and so is interested in delying vesting / taxation until after blackout.

If all the parties are in agreement, is it possible to amend the existing restricted stock agreements to change / delay vesting of the awards so that they no longer automatically vest upon closing of the change in control but would now vest upon the earlier of (1) the change in control, or (2) some fixed number of days after the end of the blackout period if change in control occurs during a blackout?

Does that work under Code Section 83? Does it work / continue to avoid 409A? In this situation, the employee would agree to be at risk of forfeiture of the awards through the remaining period so the awards would still be payable immediately upon vesting. Although I know 409A may view some delayed vesting provisions as resulting in an impermissible deferral feature, that would seem only to apply to stock rights subject to 409A out of the gate. Here, there would not be attempt to defer receipt of the stock (compensation) beyond vesting--there just would be a mutual agreement to extend required service period and thus the vesting period.

Does the answer change if the provision in the restricted stock award is amended to provide for vesting to occur upon the earlier of: (1) the fixed date after the blackout ends, or (2) involuntary termination of the executive's employment by the company such that the employee is only at risk of forfeiture if he resigns or is fired for cause?

Thanks in advance for any thoughts or insights.