**Exhibit 10.23**

 

**MIRANTCORPORATION**

 

**DEFERREDCOMPENSATION PLAN**

 

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**MIRANTCORPORATIONDEFERRED COMPENSATION PLAN**

 

**TABLE OFCONTENTS**

 
| Preamble                                                     |   | 1                                        |
|--------------------------------------------------------------|--------|------------------------------------------|
|                                                         |   |                                     |   |   |
| **ARTICLE 1  REFERENCES, CONSTRUCTION AND DEFINITIONS** |   |                                     |
|                                                         |   |                                     |   |   |
| 1.1                                                          |   | Account                                  |   | 2 |
| 1.2                                                          |   | Adjustment Date                          |   | 2 |
| 1.3                                                          |   | Affiliate                                |   | 2 |
| 1.4                                                          |   | Annual Bonus                             |   | 2 |
| 1.5                                                          |   | Authorized Leave of Absence              |   | 2 |
| 1.6                                                          |   | Beneficiary                              |   | 2 |
| 1.7                                                          |   | Board                                    |   | 2 |
| 1.8                                                          |   | Code                                     |   | 2 |
| 1.9                                                          |   | Committee                                |   | 2 |
| 1.10                                                         |   | Company                                  |   | 2 |
| 1.11                                                         |   | Compensation                             |   | 2 |
| 1.12                                                         |   | Deferral Election                        |   | 2 |
| 1.13                                                         |   | Deferrals                                |   | 3 |
| 1.14                                                         |   | Director                                 |   | 3 |
| 1.15                                                         |   | Director Fees                            |   | 3 |
| 1.16                                                         |   | Effective Date                           |   | 3 |
| 1.17                                                         |   | Employee                                 |   | 3 |
| 1.18                                                         |   | ERISA                                    |   | 3 |
| 1.19                                                         |   | Participant                              |   | 3 |
| 1.20                                                         |   | Participating Company                    |   | 3 |
| 1.21                                                         |   | Performance-Based Compensation           |   | 3 |
| 1.22                                                         |   | Plan                                     |   | 3 |
| 1.23                                                         |   | Plan Administrator                       |   | 4 |
| 1.24                                                         |   | Plan Year                                |   | 4 |
| 1.25                                                         |   | Salary                                   |   | 4 |
| 1.26                                                         |   | Service                                  |   | 4 |
| 1.27                                                         |   | Termination of Service                   |   | 4 |
|                                                         |   |                                     |   |   |
| **ARTICLE 2  ELIGIBILITY AND PARTICIPATION**            |   |                                     |
|                                                         |   |                                     |   |   |
| 2.1                                                          |   | Eligibility                              |   | 4 |
| 2.2                                                          |   | Participation                            |   | 4 |
| 2.3                                                          |   | Duration of Participation                |   | 4 |
|                                                         |   |                                     |   |   |
| **ARTICLE 3  ACCUMULATION OF PLAN BENEFITS**            |   |                                     |
|                                                         |   |                                     |   |   |
| 3.1                                                          |   | Deferral Elections                       |   | 5 |
| 3.2                                                          |   | Deferral Investments and Deemed Earnings |   | 6 |

 

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| **ARTICLE 4  DISTRIBUTION OF BENEFITS**             |   |                                |
|----------------------------------------------------------|--------|-------------------------------------|
|                                                     |   |                                |   |   |
| 4.1                                                      |   | Termination Benefit                 |   | 7 |
| 4.2                                                      |   | Specified Plan Year Benefit         |   | 8 |
| 4.3                                                      |   | Subsequent Elections                |   | 8 |
| 4.4                                                      |   | Death                               |   | 9 |
| 4.5                                                      |   | Distributions to Key Employees      |   | 9 |
| 4.6                                                      |   | Reemployment                        |   | 9 |
| 4.7                                                      |   | Facility of Payment                 |   | 9 |
|                                                     |   |                                |   |   |
| **ARTICLE 5  UNFORESEEABLE EMERGENCY PAYMENTS**     |   |                                |
|                                                     |   |                                |   |   |
| 5.1                                                      |   | Unforeseeable Emergency Payments    |   | 9 |
|                                                     |   |                                |   |   |
| **ARTICLE 6  ADJUSTMENTS**                          |   |                                |
|                                                     |   |                                |   |   |
| 6.1                                                      |   | Accounts                            |   | 10 |
| 6.2                                                      |   | Adjustments to Account              |   | 10 |
|                                                     |   |                                |   |   |
| **ARTICLE 7  FORFEITURE**                           |   |                                |
|                                                     |   |                                |   |   |
| 7.1                                                      |   | Forfeiture                          |   | 10 |
|                                                     |   |                                |   |   |
| **ARTICLE 8  ADMINISTRATION OF THE PLAN**           |   |                                |
|                                                     |   |                                |   |   |
| 8.1                                                      |   | Designation of Committee            |   | 10 |
| 8.2                                                      |   | Powers and Duties of the Committee  |   | 10 |
| 8.3                                                      |   | Agents                              |   | 11 |
| 8.4                                                      |   | Instructions for Payments           |   | 11 |
| 8.5                                                      |   | Claims for Benefits                 |   | 11 |
| 8.6                                                      |   | Hold Harmless                       |   | 12 |
| 8.7                                                      |   | Service of Process                  |   | 13 |
|                                                     |   |                                |   |   |
| **ARTICLE 9  DESIGNATION OF BENEFICIARIES**         |   |                                |
|                                                     |   |                                |   |   |
| 9.1                                                      |   | Beneficiary Designation             |   | 13 |
| 9.2                                                      |   | Failure to Designate Beneficiary    |   | 13 |
|                                                     |   |                                |   |   |
| **ARTICLE 10  WITHDRAWAL OF PARTICIPATING COMPANY** |   |                                |
| ** **                                               |
| 10.1                                                     |   | Withdrawal of Participating Company |   | 13 |
| 10.2                                                     |   | Effect of Withdrawal                |   | 14 |

 

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| **ARTICLE 11  AMENDMENT OR TERMINATION OF THE PLAN** |
|-----------------------------------------------------------|
| ** **                                                |
| 11.1                                                      |   | Right to Amend or Terminate the Plan |   | 14 |
| 11.2                                                      |   | Notice |   | 14 |
|                                                      |   |   |   |   |
| **ARTICLE 12  GENERAL PROVISIONS AND LIMITATIONS**   |
|                                                      |   |   |   |   |
| 12.1                                                      |   | No Right to Continued Employment |   | 14 |
| 12.2                                                      |   | Payment of Behalf of Payee |   | 14 |
| 12.3                                                      |   | Nonalienation |   | 15 |
| 12.4                                                      |   | Missing Payee |   | 15 |
| 12.5                                                      |   | Required Information |   | 15 |
| 12.6                                                      |   | Binding Effect |   | 15 |
| 12.7                                                      |   | Merger or Consolidation |   | 15 |
| 12.8                                                      |   | Trust |   | 16 |
| 12.9                                                      |   | Electronic Communication |   | 16 |
| 12.10                                                     |   | Entire Plan |   | 16 |

 

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**MIRANTCORPORATIONDEFERRED COMPENSATION PLAN**

 

**PREAMBLE**

 

The primary purpose of this MirantCorporation Deferred Compensation Plan (“Plan”) is to allow certain members ofmanagement and members of the Board of Directors of Mirant Corporation (“Company”)and Participating Companies to defer the receipt of a portion of theircompensation.

 

This Plan is intended to comply with therequirements of Section 409A of the Internal Revenue Code and theregulations and other guidance issued thereunder, as in effect from time totime. To the extent a provision of the Plan is contrary to or fails to addressthe requirements of Code Section 409A, the Plan shall be construed andadministered as necessary to comply with such requirements until this Plan isappropriately amended to comply with such requirements.

 

The Company establishes this Plan, to furtherthe economic interests of the Company and its affiliates by providing deferredcompensation incentives to selected management members and members of its Boardof Directors. This Plan is intended to enhance the long-term performance andretention of the directors and management members selected to participate inthis Plan.

 

This Plan is a “top-hat” plan within themeaning of Sections 201(2), 301(a)(3), and 401(a)(1) of the EmployeeRetirement Income Security Act of 1974, as amended (ERISA). As such, this Planis subject to limited ERISA reporting and disclosure requirements, and isexempt from all other ERISA requirements. This Plan shall be unfunded for taxpurposes and for purposes of Title I of ERISA. Distributions required orcontemplated by this Plan or actions required to be taken under this Plan shallnot be construed as creating a trust of any kind or a fiduciary relationshipbetween the Company and any Participant, any Participant’s designatedbeneficiary, or any other person.

 

**ARTICLE 1REFERENCES, CONSTRUCTION AND DEFINITIONS**

 

Unless otherwise indicated, all references toArticles, Sections, and subsections shall be to the Plan as set forth in thisdocument. The Plan and all rights thereunder shall be construed and enforced inaccordance with ERISA and, to the extent that state law is applicable, the lawsof the State of Georgia. The Article titles and the captions precedingSections and subsections have been inserted solely as a matter of convenienceand in no way define or limit the scope or intent of any provision. When the contextso requires, the singular includes the plural. Whenever used herein andcapitalized, the following terms have the respective meanings indicated unlessthe context plainly requires otherwise.

 

**1.1****                               “Account”**means, with respect to each Participant’s Deferrals, the separate bookkeepingaccount adjusted as of each Adjustment Date as provided in Section 6.2.The Account may also be referred to as the Termination Benefit or theSpecified Plan Year Benefit. Subaccounts shall be maintained within each Participant’sAccount.

 

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**1.2****                               “AdjustmentDate”** means each business day, and any other date upon or as of which accountsare adjusted as set forth in Article 6.

 

**1.3****                               “Affiliate”**means any corporation or trade or business which is a member of a controlledgroup of corporations or a group of businesses under common control (within themeaning of Sections 414(b) and (c) of the Code) of which the Companyis a member, and any other entity required to be aggregated with the Companypursuant to Section 409A(d)(6) of the Code and the regulations (orsimilar guidance) thereunder.

 

**1.4****                               “AnnualBonus”** means an annual variable bonus, which may or may notqualify as Performance-Based Compensation, which is awarded and is payable by theParticipating Company to the Employee for Service performed during a Plan Year.

 

**1.5****                               “AuthorizedLeave of Absence”** means, with respect to an Employee, either (a) a leaveof absence authorized by the Participating Company provided that the Employee returnswithin the period specified; or (b) an absence required to be consideredan Authorized Leave of Absence by applicable law.

 

**1.6****                               “Beneficiary”**means the beneficiary or beneficiaries designated by a Participant pursuant to Article 9to receive the benefits, if any, payable on behalf of the Participant under thePlan after the death of such Participant, or, when there has been no such designationor an invalid designation, the individual or entity, or the individuals or entities,who will receive such amount.

 

**1.7****                               “Board”**means the Board of Directors of Mirant Corporation.

 

**1.8****                               “Code”**means the Internal Revenue Code of 1986, as now in effect or as hereafter amended.All citations to Sections of the Code are to such Sections as they may fromtime to time be amended or renumbered.

 

**1.9****                               “Committee”**means the Committee appointed by the Company and responsible for administeringthe Plan as provided in Article 8.

 

**1.10****                        “Company”**means Mirant Corporation and, where the context indicates, any Participating Companythat adopts the Plan. The term Company also includes any successor corporationor firm of the Company which shall, by written agreement, assume theobligations of this Plan.

 

**1.11****                        “Compensation”**means (i) with respect to an Employee, Salary, Annual Bonuses and Performance-BasedCompensation payable by the Participating Company to the Employee for Service,and (ii) with respect to a Director, Director Fees. Compensation does notinclude stock options, stock appreciation rights, restricted stock or stockunit awards.

 

**1.12****                        “DeferralElection”** means (i) with respect to an Employee, an annual irrevocableelection, made in accordance with Section 3.1 in such form (electronicor otherwise) as approved and provided by the Plan Administrator, to defer thereceipt of a designated amount of Salary, Annual Bonus and/or Performance-BasedCompensation, and (ii) with respect to a Director, an annual irrevocableelection, made in accordance with Section 3.1 in such form (electronicor otherwise) as approved and provided by the Plan

 

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Administrator,to defer the receipt of a designated amount of Director Fees. Amounts sodeferred are called “Deferrals.”

 

**1.13****                        “Deferrals”**means amounts of Compensation deferred pursuant to a Deferral Election.

 

**1.14****                        “Director”**means a member of the Board of Directors of the Company who is not an employeeof the Company or of any Participating Company.

 

**1.15****                        “DirectorFees”** means, with respect to a Director, cash meeting fees and the annualor any supplemental retainer fee payable by the Company to the Director forService as a Director of the Company.

 

**1.16****                        “EffectiveDate”** means April 1, 2006.

 

**1.17****                        “Employee”**means a person who is a common law employee of a Participating Company.

 

**1.18****                        “ERISA”**means the Employee Retirement Income Security Act of 1974, as now in effect oras hereafter amended. All citations to Sections of ERISA are to such Sectionsas they may from time to time be amended or renumbered.

 

**1.19****                        “Participant”**means any individual who commenced participation in the Plan as provided in Article 2and who is either (a) an Employee, (b) a former Employee who is eligiblefor a benefit under the Plan, (c) a Director, or (d) a formerDirector who is eligible for a benefit under the Plan.

 

**1.20****                        “ParticipatingCompany”** means the Company or an Affiliate which, by action of its board ofdirectors or equivalent governing body and with the written consent of the Board,has adopted the Plan; provided that the Board may, subject to the foregoing provision,waive the requirement that such board of directors or equivalent governing bodyeffect such adoption. By its adoption of or participation in the Plan, aParticipating Company shall be deemed to appoint the Company its exclusiveagent to exercise on its behalf all of the power and authority conferred by thePlan upon the Company and accept the delegation to the Committee of all thepower and authority conferred upon it by the Plan. The authority of the Companyto act as such agent shall continue until the Plan is terminated as to theParticipating Company. The term “Participating Company” shall be construed asif the Plan were solely the Plan of such Participating Company, unless thecontext plainly requires otherwise.

 

**1.21****                        “Performance-BasedCompensation”** has the meaning given such term in Code Section 162(m)and applicable regulations (and other guidance), which generally means cash orequity-based compensation where the amount of, or entitlement to, the compensationis contingent on the satisfaction of preestablished organizational or individualperformance criteria relating to a performance period of at least 12 consecutivemonths in which the Employee performs services; provided, however, that forpurposes of this Plan, Performance-Based Compensation shall not include any equity-basedcompensation.

 

**1.22****                        “Plan”**means the Mirant Corporation Deferred Compensation Plan as contained herein andas it may be amended from time to time hereafter.

 

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**1.23****                        “PlanAdministrator”** means the Committee.

 

**1.24****                        “Plan Year”**means the initial short plan year from the Effective Date to the next December 31.Thereafter, Plan Year means the calendar year ending on each December 31st.

 

**1.25****                        “Salary”**means, with respect to an Employee, cash base salary payable by the ParticipatingCompany to the Employee for Service with the Participating Company. Notwithstandingany provision in this Plan to the contrary, Salary shall not include AnnualBonuses or Performance-Based Compensation, but shall include any amount whichwould have been included in cash base salary but for the Participant’s electionto defer payment of such amount under any provision of the Code, including, butnot limited to, Sections 125, 132(f), 402(e)(3), 402(h)(1), 409A, or 457(b) ofthe Code.

 

**1.26****                        “Service”**means (i) with respect to an Employee, actual employment with the ParticipatingCompany or any Affiliate, including service recognized by the Committee forperiods prior to such actual employment, and (ii) with respect to aDirector, service as a member of the Board of Directors of the Company.

 

**1.27****                        “Terminationof Service”** means a separation from service with a Participating Company oran Affiliate as determined by the Committee in accordance with the requirementsof Section 409A of the Code and the regulations (or similar guidance) thereunder,and in accordance with reasonable standards and policies adopted by the Committee;provided, however, that with respect to an Employee, the transfer of the Employeefrom employment by one Participating Company or an Affiliate to employment byanother Participating Company or Affiliate shall not constitute a Terminationof Service.

 

**ARTICLE 2ELIGIBILITY AND PARTICIPATION**

 

**2.1****                               Eligibility.**The following individuals are eligible to become Participants in the Plan:

 

**(a)**                                  Employeeswho are members of the Participating Company’s “select group of management orhighly compensated employees,” as defined in Sections 201(2), 301(a)(3), and401(a)(1) of ERISA, as amended, and who are designated in writing by theCommittee as eligible; and

 

**(b)**                                  Directorsof the Company.

 

**2.2****                               Participation.**An Employee or Director who is eligible under Section 2.1 to become a Participantshall become a Participant upon the execution and delivery of a Deferral Electionunder this Plan. No Deferral Election shall be valid until accepted by the Committeein the exercise of its sole and absolute discretion.

 

**2.3****                               Durationof Participation.** A Participant shall continue to be a Participant untilthe date the Participant is no longer entitled to a benefit under this Plan. However,the Committee may, in its sole and absolute discretion, determine that aParticipant will cease to be eligible to make subsequent year DeferralElections after becoming a Participant under this Article 2.

 

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**ARTICLE 3ACCUMULATION OF PLAN BENEFITS**

 

**3.1****                               DeferralElections.** A Director or an eligible Employee shall be eligible to makeDeferral Elections as provided below.

 

**(a)****                                  Procedures.**The Committee, in the exercise of its discretion, may decide with respectto each Plan Year whether to offer Directors and eligible Employees the optionof making a Deferral Election. For each Plan Year with respect to whichDeferral Elections are permitted, the following procedures shall apply:

 

**(i)****                                    FirstYear of Participation.** A Director or an Employee shall have 30 daysfollowing the date such individual first becomes eligible to participate inthis Plan in which to execute and deliver to the Committee a Deferral Electionby which he or she elects to defer a designated percentage of Compensation tobe earned during the portion of the Plan Year remaining after the DeferralElection is made and which, but for such Deferral Election, would be paid to theParticipant.

 

**(ii)****                                SubsequentYears of Participation.**

 

**(a)****                                  Compensationother than Performance-Based Compensation.**A Participant shall have until December 31of each year to execute and deliver to the Committee a Deferral Electionproviding for the Deferral of a designated percentage of Compensation (otherthan Performance-Based Compensation) to be earned during the next Plan Year andwhich, but for such Deferral Election, would be paid to the Participant. If theParticipant fails to deliver a new Deferral Election with respect to suchCompensation prior to December 31 of the then-current Plan Year indicatingan election to change or cease deferrals for the next Plan Year, theParticipant’s Deferral Election in effect during the then-current Plan Yearshall become irrevocable as of December 31 of that Plan Year and continuein effect during the next Plan Year.

 

**(b)****                                  Performance-BasedCompensation.** A Deferral Election with respect to Performance-BasedCompensation may be made by a Participant no later than the date that issix (6) months before the end of the applicable performance period and inno event after such Performance-Based Compensation has become bothsubstantially certain to he paid and readily ascertainable. A Deferral Electionwith respect to Performance-Based Compensation other than Annual Bonus shall beeffective only for one performance period and shall not apply to futureperformance periods. A Deferral Election with respect to Annual Bonus thatconstitutes Performance-Based Compensation will continue in effect during thenext Plan Year if the Participant fails to deliver a new Deferral Election withrespect to Annual Bonus prior to December 31 of the then-current Plan Yearindicating an election to change or cease deferrals for the next Plan Year, theParticipant’s Deferral Election in effect during the then-current

 

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Plan Yearshall become irrevocable as of December 31 of that Plan Year and continuein effect during the next Plan Year.

 

**(iii)****                            PaymentMethod and Time of Distribution.** A Participant shall designate in his orher Deferral Election the method for which such Deferrals plus deemed incomeallocations on such amounts will be paid, and whether such payment(s) willbegin following the Participant’s Termination of Service or in a specified PlanYear, each as further described in Article 4.

 

**(b)****                                  MaximumDeferrals.** An eligible Employee may make Deferrals of up to 100% ofhis or her Salary and/or Annual Bonus and up to 100% of other eligible forms ofCompensation in any Plan Year (subject to the Company’s obligation to withholdFICA taxes with respect to such amounts). A Director may make Deferrals ofup to 100% of his or her Director Fees in any Plan Year.

 

**3.2****                               DeferralInvestments and Deemed Earnings.** The amount of all Deferrals shall bereflected in each Participant’s Account as an account payable of the applicableParticipating Company. Each Account shall be credited on each Adjustment Datewith the amount of deemed income or loss as provided herein.

 

Subject to such limitations as may fromtime to time be required by law, imposed by the Company, or contained elsewherein the Plan, and subject to such operating rules and procedures as may beimposed from time to time by the Company, prior to and effective for eachAdjustment Date, each Participant may communicate to the Company adirection as to how his or her Account should be deemed to be invested amongsuch categories of deemed investments as shall be determined and made availablehereunder by the Committee. Such direction shall designate the percentage (inany whole percent multiples) of each portion of the Participant’s Account thatis requested to be deemed to be invested in such categories of deemedinvestments and shall be subject to the following rules:

 

**(a)**                                  Anyinitial or subsequent deemed investment direction shall be made in such form (electronicor otherwise) as designated by the Committee from time to time and shall beeffective as soon as practical after receipt.

 

**(b)**                                  Allamounts credited to the Participant’s Account shall be deemed to be invested inaccordance with the then effective deemed investment direction, and, as of the effectivedate of any new deemed investment direction, all or a portion of the Participant’sAccount at that date shall be reallocated among the designated deemedinvestment funds according to the percentages specified in the new deemedinvestment direction unless and until a subsequent deemed investment directionshall be filed and become effective. A Participant may make changes to hisor her deemed investment elections in the form and manner designated by theCommittee. An election concerning deemed investment choices shall continueindefinitely as provided in the Participant’s most recent investment election orother form specified by the Company.

 

**(c)**                                  Ifthe Company receives an initial or revised deemed investment direction that it determinesto be incomplete, unclear, or improper, the Participant’s investment directionthen in effect shall remain in effect (or, in the case of a deficiency in an

 

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initial deemedinvestment direction, the Participant shall be deemed to have filed no deemedinvestment direction) until the next Adjustment Date, unless the Company providesfor, and permits the application of, corrective action prior thereto.

 

**(d)**                                  Ifthe Company possesses at any time directions as to the deemed investment of lessthan all of a Participant’s Account, the Participant shall be deemed to have directedthat the undesignated portion of his or her Account be deemed to be invested ina money market fund made available under the Plan as determined by the Companyin its discretion.

 

**(e)**                                  EachParticipant hereunder, as a condition to his or her participation hereunder, agreesto indemnify and hold harmless the Company and its agents and representativesfrom any losses or damage of any kind relating to the deemed investment of theParticipant’s Account hereunder.

 

**(f)**                                    Thefact that an amount has been credited to a Participant’s Account, as providedabove, will not operate to vest in the Participant any right, title or interestin or to any benefit under the Plan. Vesting of such benefits shall occur onlyas herein set forth.

 

**(g)**                                 Eachreference in this Section to a Participant shall be deemed to include,where applicable, a reference to a Beneficiary.

 

**ARTICLE 4DISTRIBUTION OF BENEFITS**

 

**4.1****                               TerminationBenefit**

 

**(a)**                                  **Eligibility.** Upon a Participant’s Termination of Service,the Participating Company shall pay the Participant the “Termination Benefit”described in this Section 4.1.

 

**(b)**                                  **Payment Method and Timing.** A Participant may elect inhis or her annual Deferral Election, in the manner and form required bythe Committee, to receive payment of such Plan Year’s Deferrals plus deemedincome allocations thereon either in a single lump sum payment or in annualinstallment payments not to exceed ten (10). If elected, the annual installmentpayments with respect to any year’s Deferrals shall be determined by dividingthe balance of the Participant’s Deferrals for such Plan Year by the remainingnumber of years in the original installment period.

 

Upon Termination of Service, the Participant’sDeferrals with respect to a Plan Year shall be distributed to the Participantin a single lump sum payment or in annual installments not to exceed ten (10) yearsas elected by the Participant; provided, however that, regardless of anycontrary election, if a Participant’s total Deferrals, including allsub-accounts, upon Termination of Service is $25,000 or less, the balance willbe paid in a single lump sum payment on or before the later of December 31of the calendar year in which the Termination of Service occurred, or the 15thday of the third month following the Termination of Service. Except as providedin the foregoing sentence, payment of the Termination

 

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Benefit will be made or will begin as soon aspracticable after the Participant’s Termination of Service; provided, however,that with respect to any Participant who is a “specified employee” asdetermined in accordance with Section 409A of the Code and relatedguidance, payment of the Termination Benefit will be made or will begin noearlier than the date that is six (6) months following the date of theParticipant’s Termination of Service.

 

**4.2****                               SpecifiedPlan Year Benefit**

 

**(a)**                                  **General Rule.** In lieu of receiving a Termination Benefitwith respect to Deferrals for a Plan Year as described in Section 4.1,each Participant may irrevocably elect in his or her annual DeferralElection, in the manner and form required by the Committee, to receivepayment of such Plan Year’s Deferrals plus deemed income allocations thereon, ina single lump sum payment or in annual installment payments not to exceed four (4) onor about July 1 of the Plan Year(s) specified by the Participant;provided, however that, regardless of any contrary election to receive aSpecified Plan Year Benefit in annual installment payments, if a Participant’stotal Deferrals covered by such Specified Plan Year Benefit election as of thedate on which the first installment payment would be payable is $10,000 orless, the balance will be paid in a single lump sum payment on such date.

 

**(b)**                                  **Intervening Termination of Service.** In the event aParticipant has elected to receive a Specified Plan Year Benefit for some orall of his or her Deferrals and the Participant incurs a Termination of Serviceprior to the beginning of the calendar year in which such Specified Plan YearBenefit was scheduled to commence in accordance with Section 4.2(a), theSpecified Plan Year Benefit shall instead be distributed as a lump sum paymentas soon as practicable after the Participant’s Termination of Service;provided, however, that with respect to any Participant who is a “specifiedemployee” as determined in accordance with Section 409A of the Code andrelated guidance, payment of the Specified Plan Year Benefit in that case willbe made no earlier than the date that is six (6) months following the dateof the Participant’s Termination of Service.

 

**4.3**                               **Subsequent Elections.** Notwithstanding the preceding, aParticipant may, with the approval of the Committee, elect (i) to changethe method of distribution with respect to a Termination Benefit under Section 4.1or a Specified Plan year Benefit under Section 4.2 from lump sum to annualinstallment payments, or (ii) to delay the timing of any distribution withrespect to a Termination Benefit under Section 4.1 or a Specified Plan YearBenefit under Section 4.2. Such subsequent election shall not take effectfor at least twelve (12) months after it is made, and the first payment withrespect to such subsequent election must be deferred for at least five (5) yearsfrom the date such payment would otherwise have been made. Further, anysubsequent election with respect to a Specified Plan Year Benefit under Section 4.2may not be made less than twelve (12) months prior to the date of thescheduled payment to which it relates.

 

Notwithstanding anything to the contrary in the Plan, this Section 4.3shall be construed so as to comply with the requirements of Section 409A(a)(2)(A)(iv) and409A(a)(4)(C) of the Code and the regulations (or similar guidance) issuedthereunder.

 

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**4.4**                               **Death.** If a Participant dies before beginning distributions,or dies after beginning distributions but before receiving distribution of hisentire Termination Benefit or Specified Plan Year Benefit, if applicable, theParticipant’s Termination Benefit or Specified Plan Year Benefit elected foreach Plan Year’s Deferrals will be paid to the Participant’s Beneficiary(ies)according to the payment method(s) and at the time(s) elected by theParticipant.

 

**4.5**                               **Distributions to Key Employees.** Notwithstanding any otherprovision of this Plan to the contrary, for purposes of Section 409A(a)(2)(A)(i) ofthe Code, in the case of a key employee as determined in accordance with Section 409Aof the Code and related guidance, in no event shall a benefit payment payableas a result of the Participant’s Termination of Service begin earlier than thedate that is six (6) months following the date of the Participant’sTermination of Service.

 

**4.6**                               **Reemployment.** If a Participant who has incurred aTermination of Service again becomes an Employee, such reemployment shall notchange, suspend, delay, or otherwise affect payment of the Participant’sTermination Benefit.

 

**4.7**                               **Facility of Payment.** If, in the Committee’s opinion, aParticipant or other person entitled to benefits under the Plan is under alegal disability or is in any way incapacitated so as to be unable to managehis financial affairs, payment will be made to the conservator or other personlegally charged with the care of his person or his estate or, if no such legalconservator will have been appointed, then to any individual (for the benefitof such Participant or other person entitled to benefits under the Plan) whomthe Committee may from time to time approve.

 

**ARTICLE 5UNFORESEEABLE EMERGENCY PAYMENTS**

 

**5.1**                               **Unforseeable Emergency Payments.** In the event a Participantincurs a financial hardship as a result of an “unforeseeable emergency” (assuch term is defined below), the Participant may apply to the Committeefor the distribution of all or a portion of the Participant’s Account. Theapplication shall provide such information and be in such form as theCommittee shall require. The Committee, in the exercise of its sole andabsolute discretion, may approve or deny the request in whole or in part,and shall direct the Participating Company accordingly. The term “unforeseeableemergency” means a severe financial hardship to the Participant resulting froman illness or accident of the Participant, the Participant’s spouse, or adependent (as defined in Section 152(a) of the Code) of theParticipant, loss of the Participant’s property due to casualty, or othersimilar extraordinary and unforeseeable circumstances arising as a result ofevents beyond the control of the Participant. In no event may the amountsdistributed with respect to an unforeseeable emergency exceed the amountsnecessary to satisfy such emergency plus amounts necessary to pay taxesreasonably anticipated as a result of the distribution, after taking intoaccount the extent to which such hardship is or may be relieved throughreimbursement or compensation by insurance or otherwise or by liquidation ofthe Participant’s assets (to the extent the liquidation of such assets wouldnot itself cause severe financial hardship). If a Participant receives adistribution of all or a portion of the Participant’s Account pursuant to this Section 5.1,any Deferral Election in effect for the Participant shall be cancelled, and theParticipant shall make no additional Deferrals for the remainder of the currentPlan Year, The Participant may make Deferrals in future Plan Years bydelivering a new Deferral Election in accordance

 

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with Section 3.1(a)(ii). Notwithstandingany provision in the Plan to the contrary, any payment made pursuant to this Section 5.1shall comply with Section 409A(a)(2)(A)(vi) of the Code and theregulations (or similar guidance) promulgated thereunder (or any successorprovisions).

 

**ARTICLE 6ADJUSTMENTS**

 

**6.1**                               **Accounts.** The Committee shall establish and cause to bemaintained with respect to each Participant’s Deferrals and income allocationsseparate subaccounts as part of the Participant’s Account, and as of eachAdjustment Date shall adjust each subaccount as provided in this Article 6.

 

**6.2**                               **Adjustments to Account.** As of each Adjustment Date, theCommittee shall adjust each Account by the following:

 

**(a)**                                  **Unforeseeable Emergency Payments.** The Account shall bereduced by the amount of Deferrals distributed pursuant to Article 5 andallocable to the account.

 

**(b)**                                  **Income Allocations.** Deemed income or loss allocations forthe period since the last Adjustment Date shall be credited or debited to theAccount, as the case may be.

 

**(c)**                                  **Deferrals.** Deferrals, if any, made since the last AdjustmentDate and allocable to the account shall be added to the Account.

 

**ARTICLE 7FORFEITURE**

 

**7.1**                               **Forfeiture.** Notwithstanding any provision in this Plan tothe contrary, no benefit whatsoever shall be paid to or on behalf of anyParticipant under this Plan if the Participant defrauds a Participating Companyor an Affiliate or embezzles money or property of a Participating Company or anAffiliate.

 

**ARTICLE 8ADMINISTRATION OF THE PLAN**

 

**8.1**                               **Designation of Committee.** For purposes of this Plan, theCommittee shall be the Mirant Benefits Committee, unless a different committeeis appointed by the Board to be responsible for administering the Plan.

 

**8.2**                               **Powers and Duties of the Committee.** The Committee shall havegeneral responsibility for the administration of the Plan (including but notlimited to complying with reporting and disclosure requirements (if any), andestablishing and maintaining Plan records). In the exercise of its sole andabsolute discretion, the Committee shall interpret the Plan’s provisions anddetermine the eligibility of individuals for benefits. The Committee shall, tothe best of its ability, interpret the Plan in such a way as to meet therequirements of Section 409A of the Code and any regulations and guidanceissued thereunder.

 

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**8.3**                               **Agents.** The Committee may engage such legal counsel,certified public accountants and other advisers and service providers, who may beadvisers or service providers for the Participating Company or an Affiliate,and make use of such agents and clerical or other personnel, as it shallrequire or may deem advisable for purposes of the Plan. The Committee may relyupon the written opinion of any legal counsel or accountants engaged by the Committee,and may delegate to any such agent or to any subcommittee or member of theCommittee its authority to perform any act hereunder, including, withoutlimitation, those matters involving the exercise of discretion, provided thatsuch delegation shall be subject to revocation at any time at the discretion ofthe Committee.

 

**8.4**                               **Instructions for Payments.** All requests of or directions tothe Participating Company for payment or disbursement shall be signed by amember of the Committee or such other person or persons as the Committee may fromtime to time designate. This person shall cause to be kept full and accurate accountsof payments and disbursements under the Plan.

 

**8.5****                               Claimsfor Benefits.**

 

**(a)**                                  **Initial Claims.** Any Employee, Beneficiary, or his dulyauthorized representative may file a claim for a benefit to which theclaimant believes that he is entitled. Such a claim must be in writing anddelivered to the Committee in person or by mail, postage paid. Within ninety(90) days after receipt of such claim, the Committee shall send to theclaimant, by mail, postage prepaid, notice of the granting or denying, in wholeor in part, of such claim, unless special circumstances require an extension oftime for processing the claim. In no event may the extension exceed ninety(90) days from the end of the initial period. If such extension is necessary,the claimant will be given a written notice to this effect prior to theexpiration of the initial 90-day period. The Committee shall have fulldiscretion to deny or grant a claim in whole or in part. If notice of the denialof a claim is not furnished in accordance with this Section 8.5(a), theclaim shall be deemed denied and the claimant shall be permitted to exercisehis right to review pursuant to subsections (c) and (d).

 

**(b)**                                  **Requirement for Written Notice of Claim.** The Committee shallprovide a written notice to every claimant who is denied a claim for benefitsunder this Article. Such written notice shall set forth in a manner calculatedto be understood by the claimant, the following information:

 

**(i)**                                    Thespecific reason or reasons for the adverse determination.

 

**(ii)**                                Referenceto the specific Plan provisions on which the determination was based.

 

**(iii)**                            Adescription of any additional material or information necessary for theParticipant to perfect the claim and an explanation of why such material orinformation is necessary.

 

**(iv)**                               Adescription of the Plan’s review procedures, incorporating any voluntary appealprocedures offered by the Plan, and the time limits applicable to such procedures,including a statement of the Participant’s right to bring a

 

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civil action under Section 502 of ERISAfollowing an adverse benefit determination on review.

 

**(v)**                                   Astatement that the Participant is entitled to receive, upon request and free ofcharge, reasonable access to, and copies of, all documents, records, and otherinformation relevant to the claim.

 

**(c)**                                  **Appeals.** Within sixty (60) days after the receipt by theclaimant of written notification of the denial (in whole or in part) of hisclaim, the claimant or his duly authorized representative may make awritten application to the Committee, in person or by certified mail, postageprepaid, to be afforded a review of such denial; may review pertinent documents;and may submit issues and comments in writing.

 

**(d)**                                  **Disposition of Disputed Claims.** Upon receipt of a requestfor review, the Committee shall make a prompt decision on the review matter.The decision on such review shall be written in a manner calculated to beunderstood by the Participant and shall include:

 

**(i)**                                    Thespecific reason or reasons for the adverse decision;

 

**(ii)**                                Referenceto the specific plan provisions on which the benefit determination is based;

 

**(iii)**                            Astatement that the Participant is entitled to receive, upon request and free ofcharge, reasonable access to, and copies of, all documents, records, and otherinformation relevant to the Participant’s claim for benefits; and

 

**(iv)**                               Astatement describing any voluntary appeal procedures offered by the Plan andthe Participant’s right to obtain the information about such voluntary appealprocedures (if applicable), and a statement of the Participant’s right to bringaction under Section 502(a) of ERISA.

 

The decision upon review shall be made notlater than sixty (60) days after the Committee’s receipt of a request for areview, unless special circumstances require an extension of time forprocessing and the Participant is informed of the need for the extension withinthe initial sixty (60) day period. When an extension is necessary, a decisionshall be rendered as soon as possible, but not later than 120 days afterreceipt of the request for review. If notice of the decision on the review isnot furnished in accordance with this Section 8.5(d), the claim shall bedeemed denied and the Participant shall be permitted to exercise his right to alegal remedy.

 

**8.6**                               **Hold Harmless.** To the maximum extent permitted by law, nomember of the Committee shall be personally liable by reason of any contract orother instrument executed by such member or on such member’s behalf in suchmember’s capacity as a member of the Committee nor for any mistake of judgmentmade in good faith, and the Company shall indemnify and hold harmless, directlyfrom its own assets (including the proceeds of any insurance policy thepremiums of which are paid from the Company’s own assets), each member of theCommittee and each other officer, Employee, or

 

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director of the Company or an Affiliate towhom any duty or power relating to the administration or interpretation of thePlan against any cost or expense (including counsel fees) or liability(including any sum paid in settlement of a claim with the approval of theCompany) arising out of any act or omission to act in connection with the Planunless arising out of such person’s own fraud or bad faith.

 

**8.7**                               **Service of Process.** The Secretary of the Company or suchother person designated by the Board shall be the agent for service of processunder the Plan.

 

**ARTICLE 9DESIGNATION OF BENEFICIARIES**

 

**9.1**                               **Beneficiary Designation.** Every Participant shall file withthe Committee a designation in such form (electronic or otherwise) as approvedand provided by the Plan Administrator of one or more persons as theBeneficiary who shall be entitled to receive the benefits, if any, payableunder the Plan after the Participant’s death. A Participant may from timeto time revoke or change such Beneficiary designation without the consent of anyprior Beneficiary by filing a new designation with the Committee. The last suchdesignation received by the Committee shall be controlling; provided, however,that no designation, or change or revocation thereof, shall be effective unlessreceived by the Committee prior to the Participant’s death, and in no eventshall it be effective as of any date prior to such receipt. All decisions ofthe Committee concerning the effectiveness of any Beneficiary designation, andthe identity of any Beneficiary, shall be final. If a Beneficiary shall dieafter the death of the Participant and prior to receiving the payment(s) thatwould have been made to such Beneficiary had such Beneficiary’s death notoccurred, then for the purposes of the Plan the payment(s) that would have beenreceived by such Beneficiary shall be made to the Beneficiary’s estate.

 

**9.2**                               **Failure to Designate Beneficiary.** If no Beneficiarydesignation is in effect at the time of a Participant’s death, the benefits, ifany, payable under the Plan after the Participant’s death shall be made to theParticipant’s estate. If the Committee is in doubt as to the right of anyperson to receive such benefits, the Committee may direct the ParticipatingCompany to withhold payment, without liability for any accruals thereon, untilthe rights thereto are determined, or the Committee may direct theParticipating Company to pay any such amount into any court of appropriatejurisdiction and such payment shall be a complete discharge of the liability ofthe Participating Company therefor.

 

**ARTICLE 10WITHDRAWAL OF PARTICIPATING COMPANY**

 

**10.1**                        **Withdrawal of Participating Company.** A Participating Company(other than the Company) may withdraw from participation in the Plan bygiving the Board prior written notice approved by resolution by its board ofdirectors or similar governing body specifying a withdrawal date, which shallbe the last day of a month at least 30 days subsequent to the date which noticeis received by the Board. The Participating Company shall withdraw fromparticipating in the Plan if and when it ceases to be either a division of theCompany or an Affiliate. The Board may require the Participating Companyto withdraw from the Plan, as of any withdrawal date the Board specifies.

 

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**10.2**                        **Effect of Withdrawal.** A Participating Company’s withdrawalfrom the Plan shall not in any way modify, reduce, or otherwise affect theParticipating Company’s obligations incurred before the withdrawal, as suchobligations are defined under the provisions of the Plan existing immediatelybefore the withdrawal. Withdrawal from the Plan by any Participating Companyshall not in any way affect any other Participating Company’s participation inthe Plan.

 

**ARTICLE 11AMENDMENT OR TERMINATION OF THE PLAN**

 

**11.1****                        Right toAmend or Terminate the Plan**

 

**(a)**                                  TheBoard reserves the right at any time to amend or terminate the Plan by corporateresolution, in whole or in part, and for any reason and without the consent ofany Participating Company, Participant, or Beneficiary. In addition, the Board may amendthe Plan retroactively to the extent required to qualify the Plan under Section 409Aof the Code, provided that no such amendment may reduce any Participant’s Account.Each Participating Company by its participation in the Plan shall be deemed tohave delegated this authority to the Board.

 

**(b)**                                  TheCommittee may adopt any ministerial and nonsubstantive amendment which may benecessary or appropriate to facilitate the administration, management, andinterpretation of the Plan, provided the amendment does not materially affect thecurrently estimated cost to the Participating Companies of maintaining the Plan.Each Participating Company by its participation in the Plan shall be deemed tohave delegated this authority to the Committee.

 

**(c)**                                  Inno event shall an amendment or termination modify, reduce, or otherwise affectthe Participating Company’s obligations under the Plan made before the amendmentor termination, as such obligations are defined under the provisions of thePlan and the trust existing immediately before such amendment or termination.

 

**11.2**                        **Notice.** Notice of any amendment or termination of the Planshall be given by the Board or the Committee, whichever adopts the amendment,to the other and all Participating Companies.

 

**ARTICLE 12GENERAL PROVISIONS AND LIMITATIONS**

 

**12.1**                        **No Right to Continued Employment.** Nothing contained in thePlan shall give any Employee the right to be retained in the employment of theParticipating Company or Affiliate or affect the right of any such employer todismiss any Employee. The adoption and maintenance of the Plan shall notconstitute a contract between any Participating Company and Employee orconsideration for, or an inducement to or condition of, the employment of anyEmployee.

 

**12.2**                        **Payment on Behalf of Payee.** If the Committee shall find thatany person to whom any amount is payable under the Plan is unable to care forsuch person’s affairs because of illness or accident, or is a minor, or haddied, then any payment due such person or

 

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such person’s estate (unless a prior claimtherefor has been made by a duly appointed legal representative) may, if theCommittee so elects, be paid to such person’s spouse, a child, a relative, aninstitute maintaining or having custody of such person, or any other persondeemed by the Committee to be a proper recipient on behalf of such personotherwise entitled to payment. Any such payment shall be a complete dischargeof the liability of the Plan and the Participating Company therefor.

 

**12.3**                        **Nonalienation.** No interest, expectancy, benefit, payment,claim, or right of any Participant or Beneficiary under the Plan shall be (a) subjectin any manner to any claims of any creditor of the Participant or Beneficiary; (b) subjectto the debts, contracts, liabilities or torts of the Participant orBeneficiary; or (c) subject to alienation by anticipation, sale, transfer,assignment, bankruptcy, pledge, attachment, charge or encumbrance of any kind.If any person shall attempt to take any action contrary to this Section, suchaction shall be null and void and of no effect, and the Committee and the ParticipatingCompany shall disregard such action and shall not in any manner be bound therebyand shall suffer no liability on account of its disregard thereof. If theParticipant, Beneficiary, or any other beneficiary hereunder shall becomebankrupt or attempt to anticipate, alienate, sell, assign, pledge, encumber, orcharge any right hereunder, then such right or benefit shall, in the discretionof the Committee, cease and terminate, and in such event the Committee may holdor apply the same or any part thereof for the benefit of the Participantor Beneficiary or the spouse, children, or other dependents of the Participantor Beneficiary, or any of them, in such manner and in such amounts and proportionsas the Committee may deem proper.

 

**12.4**                        **Missing Payee.** If the Committee cannot ascertain thewhereabouts of any person to whom a payment is due under the Plan, and if,after five years from the date such payment is due, a notice of such paymentdue is mailed to the last known address of such person, as shown on the recordsof the Committee or the Participating Company, and within three months aftersuch mailing such person has not made written claim therefor, the Committee, ifit so elects, after receiving advice from counsel to the Plan, may directthat such payment and all remaining payments otherwise due to such person becanceled on the records of the Plan and the amount thereof forfeited, and uponsuch cancellation, the Participating Company shall have no further liabilitytherefor, except that, in the event such person later notifies the Committee ofsuch person’s whereabouts and requests the payment or payments due to suchperson under the Plan, the amounts otherwise due but unpaid as of the datepayment would have been made shall be paid to such person without accruals dueto late payment.

 

**12.5**                        **Required Information.** Each Participant shall file with theCommittee such pertinent information concerning himself or herself, suchParticipant’s Beneficiary, or such other person as the Committee may specify,and no Participant, Beneficiary, or other person shall have any rights or be entitledto any benefits under the Plan unless such information is filed by or withrespect to the Participant.

 

**12.6**                        **Binding Effect.** Obligations incurred by the ParticipatingCompany pursuant to this Plan shall be binding upon and inure to the benefit ofthe Participating Company, its successors and assigns, and the Participant andthe Participant’s Beneficiary.

 

**12.7**                        **Merger or Consolidation.** In the event of a merger orconsolidation by the Participating Company with another corporation, or theacquisition of substantially all of the assets or outstanding stock of theParticipating Company by another corporation, then and in such

 

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event the obligations and responsibilities ofthe Participating Company under this Plan shall be assumed by any suchsuccessor or acquiring corporation, and all of the rights, privileges, andbenefits of the Participants and Beneficiaries hereunder shall continue.

 

**12.8**                        **Trust.** Notwithstanding anything to the contrary in the Plan,the Company may establish a grantor trust, which may be anirrevocable “rabbi trust,” to assist it and other Participating Companies infunding Plan obligations, and any payments made to a Participant or Beneficiaryfrom such trust shall relieve the Participating Company from any furtherobligations under the Plan only to the extent of such payment. The trust shall bea domestic trust maintained in the United States, The Company shall pay all managementand other fees associated with the administration of the trust established pursuantto this Section. Notwithstanding any other provisions of the Plan, the assetsof the trust shall remain the property of the Company, and shall be subject tothe claims of creditors in the event of bankruptcy or insolvency, as providedin the trust agreement.

 

**12.9**                        **Electronic Communication.** Whenever any action orcommunication is required to be made in writing under the terms of the Plan,such action or communication may be made via electronic means in such form asapproved by the Plan Administrator.

 

**12.10**                 **Entire Plan.** This document and any written amendmentshereto, the Deferral elections, and the Beneficiary designations contain allthe terms and provisions of the Plan and shall constitute the entire Plan, anyother alleged terms or provisions being of no effect.

 

The foregoing is hereby acknowledged as being the Mirant CorporationDeferred Compensation Plan as adopted by the Board of Directors on January 12,2006.

 

 
|    | MIRANT CORPORATION        |
|---------|---------------------------|
|    |                      |
|    |                      |
|    | By:                       | /s/ Vance N. Booker |   |
|    |                      |  Vance N. Booker |
|    |                      |  SVP Administration |
|    |                      |
| Attest: |                      |
|    |                      |
| By:     | /s/ Beth Chandler    |   |   |
|    |  Beth Chandler       |   |
|    |  Vice President and  |   |
|    |  Corporate Secretary |   |
|         |                           |  |  |  |  |

 

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