If a NQDC plan is terminated on or before 12/31/08 but accrued benefits will be paid out under the terms of the plan upon the occurrence of specified events, does the plan document need to be updated to comply with the final regs or will operation in compliance with 409A and the regs suffice - its a phantom stock plan with only a few participants and based on the stock value formula (EBITDA based), the phantom stock has zero value, so its unlikely any participant will receive a nickel unless economic conditions change dramatically.

Any thoughts would be greatly appreciated

I believe I recall one of the IRS officials speaking at an ABA or ALI-ABA meeting noting that if amounts will (or I suppose potentially could) be paid out after 2008, the plan underwhich they are to be paid needs to be a written plan in compliance with 409A even if the plan is terminated before 2009.