Too Late to Correct?

[ERISA-Bubs]

I need to do a document correction on a plan subject to 409A. The problem is there are some noncompliant definitions, including a definition of Change in Control. For simplicity, we'll pretend that is the only error.

I can correct by amending the definition of Change in Control. So long as a Change in Control under the bad definition does not occur and trigger payment within a certain time period thereafter, I'm golden.

Here's the rub: The employee has already been paid out. But he hasn't been paid out under Change in Control, so there is no issue there.

I don't see anything in the correction procedures that says the employee can't be paid out already. The correction seems to comply with the requirements -- the definition will be changed and no Change in Control under the bad definition will trigger payment. But does this violate some other rule or the "spirit" of the correction in some way?

Is it too late to correct?