Bargaining Unit Employee Savings Plan

EXHIBIT 10.76


FIRST AMENDMENT TO THE
MIRANT SERVICES
BARGAINING UNIT EMPLOYEE SAVINGS PLAN
(AS AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 1, 2004)


WHEREAS, Mirant Services, LLC (the "Company") heretofore adopted the Mirant Services Bargaining Unit Employee Savings Plan (the "Plan"), effective December 19, 2000, which Plan was subsequently amended, and amended and restated in its entirety, from time to time and was most recently amended and restated in its entirety effective as of January 1, 2004;


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, effective as of the respective effective dates set forth below, as follows:


I.


EFFECTIVE AS OF JANUARY 1, 2004, SECTION 3.1 OF THE PLAN IS AMENDED IN ITS ENTIRETY TO READ AS FOLLOWS:


"3.1 ELIGIBILITY REQUIREMENTS. Each individual who was a Participant on January 1, 2004 will continue to participate in the Plan. Each other Eligible Employee may elect to participate in the Plan as of any Enrollment Date after he has completed a Year of Service, or such earlier time if so provided in Article XVII or a schedule attached hereto for his collective bargaining unit. An Eligible Employee shall make an election to participate by authorizing deductions from or reduction of his Compensation as contributions to the Plan in accordance with Article IV, and directing the investment of such contributions in accordance with Article VIII. Such Compensation deduction and/or reduction authorization and investment direction shall be made in accordance with the procedures established from time to time by the Committee."


II.


EFFECTIVE AS OF JANUARY 1, 2004, SECTION 3.3 OF THE PLAN IS AMENDED IN ITS ENTIRETY TO READ AS FOLLOWS:


"3.3 CHANGE IN ELIGIBILITY. In the event that an Employee's status changes such that he is no longer eligible to participate under the Mirant Services Employee Savings Plan, but instead becomes an Eligible Employee under this Plan (i) his pre-tax, after-tax and/or rollover contribution subaccounts under such plan shall be transferred to his corresponding Elective Employer Contribution, Voluntary Participant Contribution, and/or Rollover Contribution subaccounts in his Account under this Plan, (ii) if and when he becomes fully vested in his matching contribution subaccount under that plan, such matching contribution subaccount shall be transferred to his Employer Matching Contribution subaccount in this Plan, (iii) if and when he becomes fully


vested in his discretionary profit sharing contribution subaccount under that plan, such discretionary profit sharing contribution subaccount shall be transferred to his Discretionary Profit Sharing Contribution subaccount in this Plan, and (iv) if and when he becomes fully vested in his fixed profit sharing Contribution subaccount under that plan, such fixed profit sharing contribution subaccount shall be transferred to his Discretionary Profit Sharing Contribution subaccount in this Plan. All amounts transferred to this Plan in accordance with this Section 3.3, including the outstanding balance of any loans, shall be subject to all of the other provisions of this Plan. Any outstanding loan transferred with such accounts shall be considered a loan from this Plan pursuant to Section 11.7 hereof. Finally, no such transfer shall eliminate an optional form of benefit in violation of Code Section 411(d)(6)."


III.


EFFECTIVE AS OF JANUARY 1, 2004, SECTION 5.1 OF THE PLAN IS AMENDED IN ITS ENTIRETY TO READ AS FOLLOWS:


"5.1 AMOUNT OF EMPLOYER MATCHING CONTRIBUTIONS. Subject to the provisions of Sections 6.1 and 6.2, each Employing Company shall contribute an Employer Matching Contribution on behalf of each Participant in its employ as provided in Article XVII or a schedule attached hereto for his collective bargaining unit. The Employer Matching Contribution shall be allocated first to the Elective Employer Contributions made on a Participant's behalf. Notwithstanding the foregoing, in the event a Participant is eligible to elect to have Elective Employer Contributions and Voluntary Participant Contributions allocated to his Account prior to his eligibility for allocation of Employer Matching Contributions, only such Elective Employer Contributions and Voluntary Participant Contributions as are allocated to the Participant's Account after his eligibility for Employer Matching Contributions shall be taken into account in determining the amount of Employer Matching Contributions to be allocated to the Participant's Account for a Plan Year. If, as determined as of the end of a Plan Year, a Participant received Employer Matching Contributions of less than the maximum percentage or amount allowable (as specified in Article XVII or a schedule attached hereto) for the Plan Year because of limitations imposed on a payroll period basis, the Employing Company may make an additional Employer Matching Contribution on behalf of such Participant, not to exceed the maximum percentage or amount allowable (as specified in Article XVII or a schedule attached hereto) for the Plan Year."


IV.


EFFECTIVE AS OF JANUARY 1, 2004, SECTION 5.3 OF THE PLAN IS AMENDED IN ITS ENTIRETY TO READ AS FOLLOWS:


"5.3 DISCRETIONARY PROFIT SHARING CONTRIBUTION. Each Employing Company may, in its sole and absolute discretion, make an annual Discretionary Profit Sharing Contribution to each Allocation Group for the Accounts of Eligible Participants in its employ as provided in Article XVII or a schedule attached hereto for a Participant's collective bargaining unit, provided such Participants have satisfied the eligibility requirements of Section 3.1 and are Eligible Employees as of the last day of the Plan Year for which such Discretionary Profit Sharing Contribution relates. The Discretionary Profit Sharing Contribution may be made in a whole dollar amount or as a percentage of the Profit Sharing Compensation (as defined below) of each Eligible Participant eligible to receive an allocation of such Discretionary Profit Sharing Contribution under this


2


Section 5.3, and may be made without regard to the current or accumulated net profits of the Employer. For this purpose, the term "Profit Sharing Compensation" shall mean a Participant's Compensation as defined in Section 2.13 of the Plan plus (i) any shift pay or Sunday premium paid to him during the applicable period and (ii) any short-term incentive pay awarded to him under the Mirant Corporation Omnibus Incentive Compensation Plan during the applicable period, to the extent such payments do not exceed 150% of the Participant's Compensation as defined in Section 2.13 of the Plan. Discretionary Profit Sharing Contributions shall be paid to the Trustee no later than the time prescribed by law for filing the federal income tax return of the Employing Company, including extensions, for the taxable year ending within the Plan Year for the Discretionary Profit Sharing Contribution in question. Discretionary Profit Sharing Contributions will be allocated to each Eligible Participant's Discretionary Profit Sharing Contribution s ...