EXHIBIT 10.76
EIGHTH AMENDMENT TO THE
MIRANT SERVICES
EMPLOYEE SAVINGS PLAN
WHEREAS, Mirant Services, LLC (the "Company") heretofore adopted the
Mirant Services 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 make various changes to 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 provided herein:
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EFFECTIVE AS OF AUGUST 27, 2002, THE FIRST SENTENCE IN SECTION 8.1 OF
THE PLAN SHALL BE DELETED IN ITS ENTIRETY AND REPLACED WITH THE FOLLOWING
SENTENCE:
The Investment Funds shall be selected from time to time by the
Qualified Plans Investment Review Committee (the "Investment Review
Committee").
II.
EFFECTIVE AS OF JANUARY 1, 2003, THE PLAN SHALL BE MODIFIED BY THE
ADDITION OF THE FOLLOWING NEW ARTICLE XXI:
ARTICLE XXI
MINIMUM DISTRIBUTION REQUIREMENTS
21.1 General Rules
(a) Effective Date. The provisions of this Article XXI
will apply for purposes of determining required minimum distributions
for calendar years beginning with the 2003 calendar year.
(b) Coordination with Minimum Distribution Requirements
Previously in Effect. For the Plan Year beginning on January 1, 2002,
the Plan applied the minimum distribution requirements of Section
401(a)(9) of the Code in accordance with the regulations under Section
401(a)(9) of the Code that were proposed in January of 2001.
(c) Precedence. The requirements of this Article XXI
will take precedence over any inconsistent provisions of the Plan.
(d) Requirements of Treasury Regulations Incorporated.
All distributions required under this Article XXI will be determined
and made in accordance with the Treasury regulations under Section
401(a)(9) of the Code.
(e) TEFRA Section 242(b)(2) Elections. Notwithstanding
the other provisions of this Article XXI other than Section 21.1(d),
distributions may be made under a designation made before January 1,
1984, in accordance with Section 242(b)(2) of the Tax Equity and
Fiscal Responsibility Act (TEFRA) and the provisions of the Plan that
relate to Section 242(b)(2) of TEFRA.
21.2 Time and Manner of Distribution.
(a) Required Beginning Date. The Participant's entire
interest will be distributed to the Participant no later than his
Required Beginning Date.
(b) Death of Participant Before Distributions Begin. If
the Participant dies before distributions begin, the Participant's
entire interest will be distributed no later than as follows:
(1) If the Participant's Surviving Spouse is
the Participant's sole Designated Beneficiary, then the
distribution to the Surviving Spouse will be made by no later
than December 31 of the calendar year immediately following
the calendar year in which the Participant died.
(2) If the Participant's Surviving Spouse is
not the Participant's sole Designated Beneficiary, then the
distribution to the Designated Beneficiary will be made by no
later than December 31 of the calendar year immediately
following the calendar year in which the Participant died.
(3) If there is no Designated Beneficiary as of
September 30 of the year following the year of the
Participant's death, the Participant's entire interest will
be distributed by December 31 of the calendar year containing
the fifth anniversary of the Participant's death.
(4) If the Participant's Surviving Spouse is
the Participant's sole Designated Beneficiary and the
Surviving Spouse dies after the Participant but before the
distribution to the Surviving Spouse has been made, this
Section 21.2(b), other than Section 21.2(b)(1), will apply as
if the Surviving Spouse were the Participant.
For purposes of this Section 21.2(b) and Section 21.4, unless Section
21.2(b)(4) applies, distributions are considered to begin on the
Participant's Required Beginning Date. If Section 21.2(b)(4) applies,
distributions are considered to begin on the date distributions are
required to begin to the Surviving Spouse under Section 21.2(b)(1)).
(c) Form of Distribution. Unless the Participant's
interest is distributed in a single sum on or before the Required
Beginning Date, as of the first Distribution Calendar
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Year, distributions will be made in accordance with Sections 21.3 and
21.4 of this Article XXI.
21.3 Required Minimum Distributions During the Participant's Lifetime.
(a) Amount of Required Minimum Distribution for Each
Distribution Calendar Year. During the Participant's lifetime, the
minimum amount that will be distributed for each Distribution Calendar
Year is the total amount of the Participant's Account Balance.
(b) Lifetime Required Minimum Distributions Continue
Through Year of Participant's Death. Required minimum distributions
will be determined under this Section 21.3 beginning with the first
Distribution Calendar Year and up to and including the Distribution
Calendar Year that includes the Participant's date of death.
21.4 Requirements Minimum Distributions After the Participant's Death.
(a) Death On or After the Date Distributions Begin.
(1) Participant Survived by Designated
Beneficiary. If the Participant dies on or after the date
distributions begin and there is a Designated Beneficiary,
the minimum amount that will be distributed for each
Distribution Calendar Year after the year of the
Participant's death is the total amount of the Participant's
Account Balance.
(2) No Designated Beneficiary. If the
Participant dies on or after the date Participant's begin and
there is no Designated Beneficiary as of September 30 of the
year after the year of the Participant's death, the minimum
amount that will be distributed for each Distribution
Calendar Year after the year of the Participant's death is
the total amount of the Participant's Account Balance.
(b) Death Before the Date Distributions Begin.
(1) Participant Survived by Designated
Beneficiary. If the Participant dies before the date
distributions begin and there is a Designated Beneficiary,
the minimum amount that will be distributed for each
Distribution Calendar Year after the year of the
Participant's death is the total amount of the Participant's
Account Balance.
(2) No Designated Beneficiary. If the
Participant dies before the date Participant's begin and
there is no Designated Beneficiary as of September 30 of the
year following the year of the Participant's death, the
distribution of the Participant's entire interest will be
completed by December 31 of the calendar year containing the
fifth anniversary of the Participant's death.
(3) Death of Surviving Spouse Before
Distributions to Surviving Spouse Are Required to Begin. If
the Participant dies before the date the distributions begin,
the Participant's Surviving Spouse is the Participant's sole
Designated Beneficiary, and the Surviving Spouse dies before
distributions are
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required to begin to the Surviving Spouse under Section
21.2(b)(1), this Section 21.4(b) will apply as if the
Surviving Spouse were the Participant.
21.5 Definitions.
(a) Designated Beneficiary. The individual who is
designated as the beneficiary under Section 12.4 of the Plan and is
the designated beneficiary under Section 401(a)(9) of the Code and
Section 1.401(a)(9)-4 of the Treasury regulations.
(b) Distribution Calendar Year. A calendar year for
which a minimum distribution is required. For distributions beginning
before the Participant's death, the first Distribution Calendar Year
is the calendar year immediately preceding the calendar year that
contains the Participant's Required Beginning Date. For distributions
beginning after the Participant's death, the first Distribution
Calendar Year is the calendar year in which distributions are required
to begin pursuant to Section 21.2(b). The required minimum
distribution for the Participant's first Distribution Calendar Year
will be made on or before the Participant's Required Beginning Date.
The required minimum distribution for other Distribution Calendar
Years, including the required minimum distribution for the
Distribution Calendar Year in which the Participant's Required
Beginning Date occurs, will be made on or before December 31 of that
Distribution Calendar Year.
(c) Account Balance. The Participant's Account balance
as of the last Valuation Date in the calendar year immediately
preceding the Distribution Calendar Year (the "Valuation Calendar
Year") increased by the amount of any contributions made and allocated
or forfeitures allocated to the Account balance as of dates in the
Valuation Calendar Year after the Valuation Date and decreased by
distributions made in the Valuation Calendar Year after the Valuation
Date. The Account balance for the Valuation Calendar Year includes any
amounts rolled over or transferred to the Plan either in the Valuation
Calendar Year or in the Distribution Calendar Year if distributed or
transferred in the Valuation Calendar Year.
(d) Required Beginning Date. The date specified in
Section 12.6(b) of the Plan.
III.
EFFECTIVE AS OF APRIL 1, 2003, SECTION 11.6(C) OF THE PLAN SHALL BE
DELETED IN ITS ENTIRETY AND REPLACED WITH THE FOLLOWING NEW SECTION 11.6(C):
(a) For purposes of this Section 11.6, a withdrawal
shall be deemed necessary to satisfy an immediate and heavy financial
need if:
(1) The distribution is not in excess of the
amount of the immediate and heavy financial need of the
Participant, including any amounts necessary to pay any
federal, state, or local income taxes or penalties reasonably
anticipated to result from the distribution;
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(2) The Participant has obtained all
distributions and all nontaxable loans currently available to
him under all plans maintained by an Affiliated Employer; and
(3) The Participant agrees to suspend all
elective employer contributions and voluntary participant
contributions to all plans of an Affiliated Employer for at
least six (6) months after receipt of the distribution under
this Section 11.6.
IV.
EFFECTIVE AS OF APRIL 1, 2003, ARTICLE XIII OF THE PLAN SHALL BE
MODIFIED BY THE ADDITION OF THE FOLLOWING NEW SECTION 13.19:
13.19 Liability of the Investment Review Committee. In performing its
responsibilities under the Plan, except as may be prohibited by ERISA, neither
the Investment Review Committee nor any person to whom the Investment Review
Committee may delegate any duty or power in connection with its
responsibilities under the Plan shall be liable for any action or failure to
act except for its or his own gross negligence or willful misconduct; nor for
the payment of any amount under the Plan; nor for any mistake of judgment made
by him or on his behalf as a member of the Investment Review Committee; nor for
any action, failure to act, or loss unless resulting from his own gross
negligence or willful misconduct; nor for the neglect, omission, or wrongdoing
of any other member of the Investment Review Committee. No member of the
Investment Review Committee shall be personally liable under any contract,
agreement, bond, or other instrument made or executed by him or on his behalf
as a member of the Investment Review Committee.
V.
EFFECTIVE AS OF SEPTEMBER 1, 2003, SECTION 12.1(A) OF THE PLAN SHALL
BE DELETED IN ITS ENTIRETY AND REPLACED WITH THE FOLLOWING NEW SECTION 12.1(A):
(a) If a Participant's employment with the Affiliated
Employers is terminated as a result of his retirement on or after his
Early Retirement Date or his Normal Retirement Date, in addition to
the withdrawal options under Section 11.1, the entire balance credited
to his Account shall be payable to him in a single lump sum
distribution at such time requested by the Participant pursuant to
Section 12.6 and in accordance with the procedures established by the
Committee. The distribution shall commence as soon as practicable
after the Valuation Date selected by the Participant.
VI.
EXCEPT AS AMENDED HEREIN BY THIS EIGHTH AMENDMENT, THE PLAN SHALL
REMAIN IN FULL FORCE AND EFFECT AS AMENDED AND RESTATED BY THE COMPANY PRIOR TO
THE ADOPTION OF THIS EIGHTH AMENDMENT.
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IN WITNESS WHEREOF, the Committee, through a duly authorized officer
of the Company, has adopted this Eighth Amendment to the Plan this 19th day of
March, 2003 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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