EXHIBIT 10.72
SECOND AMENDMENT TO THE
MIRANT SERVICES
SUPPLEMENTAL BENEFIT PLAN
WHEREAS, Mirant Services, LLC (the "Company") heretofore adopted the
Mirant Services Supplemental Benefit Plan (the "Plan"), effective January 1,
2001 to provide certain retirement and other deferred compensation benefits
primarily for a select group of management or highly compensated employees;
WHEREAS, pursuant to Section 6.2 of the Plan, the Board of Managers of
the Company (the "Board") has the authority to amend the Plan;
WHEREAS, the Board has delegated its authority to amend the Plan,
provided such amendment does not have a material effect on the cost of the Plan,
to the Americas Benefits Committee (the "Committee");
WHEREAS, the Committee desires to change the deemed investment return
credited to a Participant's Non-Pension Benefit Account; and
WHEREAS, the Committee has determined that the above amendment would
not have a material effect on the cost of the Plan.
NOW, THEREFORE, the Committee hereby amends the Plan as follows, to be
effective as of September 30, 2002:
I.
SECTION 5.2(C) OF THE PLAN SHALL BE AMENDED BY DELETING SUCH SUBSECTION
IN ITS ENTIRETY AND REPLACING IT WITH THE FOLLOWING NEW SECTION 5.2(C):
(c) The Non-Pension Benefit of the Participant shall be deemed to
be invested as follows:
(i) Prior to September 30, 2002, the amounts credited to
the Non-Pension Benefit Account of the Participant shall be deemed to be
invested in Phantom Common Stock. On each such date of investment, a
Participant's Account shall be credited with the number of shares (including
fractional shares) of Phantom Common Stock which could have been purchased on
such date, based upon the Common Stock's Purchase Price. As of the date upon
which occurs the payment of dividends on the Common Stock, there shall be
credited with respect to shares of Phantom Common Stock in the Participant's
Account on such date, such additional shares (including fractional shares) of
Phantom Common Stock as follows:
(A) In the case of cash dividends, such
additional shares as could be purchased at the Purchase Price with the
dividends which would have been payable if the credited shares had been
outstanding;
(B) In the case of dividends payable in property
other than cash or Common Stock, such additional shares as could be
purchased at the Purchase Price with the fair market value of the
property which would have been payable if the credited shares had been
outstanding; or
(C) In the case of dividends payable in Common
Stock, such additional shares as would have been payable on the
credited shares if they had been outstanding.
(ii) As of September 30, 2002, the amounts credited to the
Non-Pension Benefit Account of the Participant shall be credited with deemed
interest at the prime rate as published in the Wall Street Journal, compounded
daily.
II.
SECTION 5.3(B) OF THE PLAN SHALL BE AMENDED BY DELETING SUCH SUBSECTION
IN ITS ENTIRETY AND REPLACING IT WITH THE FOLLOWING NEW SECTION 5.3(B):
(b) When a Participant terminates his employment with the
Employing Company (including any subsidiaries or affiliates thereof), said
Participant shall be entitled to receive the value of his Account (including the
market value of any shares of Phantom Common Stock (and fractions thereof)
reflected in his Account) in a single lump sum cash distribution or annual cash
installments not to exceed ten (10). The Participant's Account shall be valued
as of the last business day of the month in which the Participant terminates;
provided, however, if the Participant terminates within five (5) business days
prior to the last day of such month, the Participant's Account may be valued as
of the last business day of the following month, at the Committee's discretion.
Such distribution shall be paid in a single lump sum cash payment as soon as
administratively practicable following the valuation date. With regard to any
distribution made under this Article, the market value of any shares of Phantom
Common Stock credited to a Participant's Account shall be based on the Sales
Price. No portion of a Participant's Account shall be distributed in Common
Stock.
III.
SECTION 5.3(D) OF THE PLAN SHALL BE AMENDED BY DELETING SUCH SUBSECTION
IN ITS ENTIRETY AND REPLACING IT WITH THE FOLLOWING NEW SECTION 5.3(D):
(d) Upon the death of a Participant, or a former Participant prior
to the payment of the value of said Participant's Account (including the market
value of any shares of Phantom Common Stock (and fractions thereof) credited to
said Participant's Account, based on the Sales Price), the unpaid balance shall
be paid in the sole discretion of the Committee (i) in a lump sum to the
designated Beneficiary of a Participant or former Participant as soon as
reasonably practicable following the last business day of the calendar quarter
in which the Committee is provided evidence of the Participant's death or (ii)
in accordance with the distribution method chosen by such Participant or former
Participant. The Beneficiary designation may be changed by the Participant or
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former Participant at any time without the consent of the prior Beneficiary. In
the event a Beneficiary designation is not on file or the designated Beneficiary
is deceased or cannot be located, payment will be made to the person or persons
in the first of the following classes of successive preference, if then living:
(1) the Participant's spouse on the date of his
death;
(2) the Participant's children, equally;
(3) the Participant's parents, equally;
(4) the Participant's brothers and sisters,
equally; or
(5) the Participant's executors or
administrators.
Payment to such one or more persons shall completely discharge
the Plan with respect to the amount so paid.
IV.
SECTION 5.3(E) OF THE PLAN SHALL BE AMENDED BY DELETING SUCH SUBSECTION
IN ITS ENTIRETY AND REPLACING IT WITH THE FOLLOWING NEW SECTION 5.3(E):
(e) Upon the total disability of a Participant or former
Participant, as determined by the Committee, prior to the payment of the value
of such Participant's Account (including the market value of any shares of
Phantom Common Stock (and fractions thereof) credited to said Participant's
Account, based on the Sales Price), the unpaid balance of his Account shall be
paid in the sole discretion of the Committee (i) in a lump sum to the
Participant or former Participant, or his legal representative as soon as
reasonably practicable following the last business day of the calendar quarter
following the date on which the Committee makes the determination of the
Participant's disability or (ii) in accordance with the distribution method
elected by such Participant or former Participant.
V.
SECTION 5.3(F) OF THE PLAN SHALL BE AMENDED BY DELETING SUCH SUBSECTION
IN ITS ENTIRETY AND REPLACING IT WITH THE FOLLOWING NEW SECTION 5.3(F):
(f) Notwithstanding the foregoing provisions of this Section 5.3,
if a Participant or Beneficiary becomes entitled to a payment of his Account
balance and such Account balance does not exceed $5,000, said Participant shall
receive the value of his Account (including the market value of any shares of
Phantom Common Stock (and fractions thereof) credited to said Participant's
Account, based on the Sales Price) in a single lump sum distribution. The
Participant's Account shall be valued as of the last business day of the month
in which the Participant terminates; provided, however, if the Participant
terminates within five (5) business days prior to the last day of such month,
the Participant's Account may be valued as of the last business day of the
following month, at the Committee's discretion. Payments shall be paid in a
single lump sum cash payment as soon as administratively practicable following
the valuation date.
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VI.
ALL PARTS OF THE PLAN NOT INCONSISTENT HERE WITH ARE HEREBY RATIFIED
AND CONFIRMED.
IN WITNESS WHEREOF, Mirant Services, LLC, through its duly authorized
officer pursuant to a unanimous consent of the Committee dated September 30,
2002, has adopted this Second Amendment to the Mirant Services Supplemental
Benefit Plan, this 30th day of September, 2002 to be effective September 30,
2002.
MIRANT SERVICES, LLC:
By: /s/ Dianne W. Davenport
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Dianne W. Davenport
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