Fifth Amendment To The Bargaining And Employee

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 p ...