Exhibit 10.27
AMENDMENT TO CHANGE IN CONTROL AGREEMENT
This AMENDMENT (the "Amendment"), effective as of September 10, 2001, by
and among Mirant Corporation ("Mirant"), Mirant Services LLC (the "Company") and
Xxxxxxx X. Xxxxxxxx ("Executive") (hereinafter collectively referred to as the
"Parties"), amends that certain Change in Control Agreement, dated as of April
2, 2001, by and among the Parties (the "Change in Control Agreement"). In
consideration of the mutual promises and covenants herein contained, the parties
hereto agree as follows:
1. Section 1(a) of the Change in Control Agreement is hereby deleted in its
entirety and replaced by the following:
(a) "Annual Compensation" means the sum of (i) Executive's highest
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annual base salary rate in effect during the twelve (12) month period
immediately preceding the date of the Change in Control ("Base Salary"),
plus (ii) an amount equal to the product of (A) Executive's Base Salary and
(B) the percentage equal to the average annual bonus percentage (expressed
as a percentage of base salary in such year) paid to Executive in each of
the two (2) years preceding the year in which the Change in Control
occurred."
2. The last sentence of Section 1(j) (definition of "Good Reason") is
hereby deleted in its entirety and replaced by the following:
Any dispute as to whether an event of Good Reason shall have occurred or
been cured on a timely basis shall be resolved as provided in Section 6
hereof.
3. The first sentence of Section 6(a) of the Change of Control Agreement
("Arbitration") is hereby deleted in its entirety and replaced by the following
two sentences:
If the Company's obligations under this Agreement have been funded
under the Mirant Corporation Deferred Compensation Trust Agreement or any
successor rabbi trust, any dispute, controversy or claim arising out of or
relating to the Company's obligations to pay severance benefits under this
Agreement, or the breach thereof, shall be settled and resolved solely by
the procedures and dispute resolution mechanisms set forth in such trust
agreement, to the extent such procedures and mechanisms are applicable to
such dispute. Otherwise, any dispute, controversy or claim arising out of
or relating to the Company's obligations to pay severance benefits under
this Agreement, or the breach thereof, shall be settled and resolved solely
by arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association ("AAA") except as otherwise provided
herein.
4. Section 7(a) of the Change of Control Agreement is hereby deleted in its
entirety and replaced by the following:
(a) Funding of Benefits. The benefits payable to Executive under this
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Agreement shall be paid by the Company out of its general assets, which
assets are subject to the claims of the Company's creditors; provided that
such benefits may be funded in accordance with the Change in Control
Benefit Plan Determination Policy.
5. As amended hereby, the Change of Control Agreement shall be and remain
in full force and effect.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of
the date first set forth above.
MIRANT CORPORATION
By: ____________________________________
MIRANT SERVICES LLC
By: ____________________________________
EXECUTIVE
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Xxxxxxx X. Xxxxxxxx
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