EXHIBIT 10.79
FIFTH AMENDMENT TO THE
MIRANT SERVICES
BARGAINING UNIT EMPLOYEE SAVINGS PLAN
WHEREAS, Mirant Services, LLC (the "Company") heretofore adopted the
Mirant Services Bargaining Unit Employee Savings Plan (the "Plan"), effective
December 19, 2000, and subsequently amended and restated effective as of April
2, 2001;
WHEREAS, the Company desires to amend the Plan in order to obtain a
favorable determination letter ruling regarding the qualified status of the
Plan; and
WHEREAS, the Americas Benefits Committee (the "Committee") is
authorized pursuant to Section 15.1 of the Plan to amend the Plan at any time,
provided such amendment does not involve a substantial increase in cost to the
Company.
NOW, THEREFORE, the Committee hereby amends the Plan as follows, to be
effective as of December 19, 2000:
I.
SECTION 2.23 OF THE PLAN SHALL BE DELETED IN ITS ENTIRETY AND REPLACED
WITH THE FOLLOWING NEW SECTION 2.23:
2.23 "Employee" shall mean each individual who is employed by an
Affiliated Employer under common law and each individual who is required to be
treated as an employee pursuant to the "leased employee" rules of Code Section
414(n) other than a leased employee described in Code Section 414(n)(5). A
"leased employee" is any person (other than an employee of the recipient) who
pursuant to an agreement between the recipient and any other person (hereafter
the "leasing organization") has performed services for the recipient (or for
the recipient and related persons, as determined in accordance with Code
Section 414(n)(6)) on a substantially full-time basis for a period of at least
one (1) year, and such services are performed under the primary direction or
control by the recipient.
II.
SECTION 2.31 OF THE PLAN SHALL BE DELETED IN ITS ENTIRETY AND REPLACED
WITH THE FOLLOWING NEW SECTION 2.31:
2.31 "Highly Compensated Employee" shall mean (in accordance with
and subject to Code Section 414(q) and any regulations, rulings, notices or
procedures thereunder), with respect to any Plan Year: (a) any Employee who was
a five percent (5%) owner of Mirant Corporation or an Affiliated Employer (as
determined pursuant to Code Section 416) during the Plan Year or the
immediately preceding Plan Year, or (b) any Employee who (1) earned more than
$85,000 in the preceding Plan Year and (2) falls within the "top-paid group,"
as defined in Code Section 414(q) (excluding those employees described in Code
Section 414(q)(8) for such
purpose). The $85,000 amount shall be adjusted for inflation and for short Plan
Years, pursuant to Code Section 414(q). In determining whether an Employee is a
Highly Compensated Employee, the Committee may make any elections authorized
under applicable regulations, rulings, notices, or revenue procedures.
III.
SECTION 4.5(A) OF THE PLAN SHALL BE DELETED IN ITS ENTIRETY AND
REPLACED WITH THE FOLLOWING NEW SECTION 4.5(A):
(a) Actual Deferral Percentage Test. The Plan shall
satisfy the nondiscrimination test of Section 401(k)(3) of the Code,
under which no Elective Employer Contributions shall be made that
would cause the Actual Deferral Percentage for Eligible Participants
who are Highly Compensated Employees to exceed either subsection
4.5(a)(1) or (2) as follows:
(1) The Average Actual Deferral Percentage for
the Eligible Participants who are Highly Compensated
Employees in the current Plan Year shall not exceed the
Average Actual Deferral Percentage for the prior Plan Year
for Eligible Participants who were Non-Highly Compensated
Employees for the prior Plan Year multiplied by 1.25; or
(2) The Average Actual Deferral Percentage for
Eligible Participants who are Highly Compensated Employees in
the current Plan Year shall not exceed the Average Actual
Deferral Percentage for Eligible Participants who were
Non-Highly Compensated Employees in the prior Plan Year
multiplied by two (2), provided that the Average Actual
Deferral Percentage for Eligible Participants who are Highly
Compensated Employees in the current Plan Year does not
exceed the Average Actual Deferral Percentage for the prior
Plan Year for Eligible Participants who were Non-Highly
Compensated Employees in the prior Plan Year by more than two
(2) percentage points.
At the election of the Committee, and upon amendment
to the Plan, the current year Average Actual Deferral
Percentage for current year Non-Highly Compensated Employees
may be substituted for the prior year Average Actual Deferral
Percentage. However, once an election is made to utilize such
current year Average Actual Deferral Percentage in
determining the Actual Deferral Percentage, the Committee may
not revoke such election without the approval of the Internal
Revenue Service, to the extent required under Code Section
401(k)(3)(A). Notwithstanding the foregoing, for the 2000
Plan Year the Average Actual Deferral Percentage of
Non-Highly Compensated Employees shall be deemed to be three
percent (3%) or, if the Committee elects in accordance with
Code Section 401(k)(3)(E), the actual Average Actual Deferral
Percentage of Non-Highly Compensated Employees for the 2000
Plan Year.
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IV.
EXCEPT AS AMENDED HEREIN BY THIS FIFTH AMENDMENT, THE PLAN SHALL
REMAIN IN FULL FORCE AND EFFECT AS AMENDED AND RESTATED BY THE COMPANY PRIOR TO
THE ADOPTION OF THIS FIFTH AMENDMENT.
IN WITNESS WHEREOF, the Committee, through a duly authorized officer
of the Company, has adopted this Fifth Amendment to the Plan this 14th day of
November, 2002 to be effective as provided herein.
MIRANT SERVICES, LLC
By: /s/ Dianne W. Davenport
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Title: Vice President
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