SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 11-K/A
(Amendment No. 1)
[X] ANNUAL REPORT PURSUANT TO SECTION 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2002
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number 1-3526
A. Full title of the plan and the address of the plan, if
different from that of the issuer named
below:
Mirant Services
Employee Savings Plan
c/o Mirant Services
1155 Perimeter Center W
Atlanta, Georgia 30338
B. Name of issuer of the securities held pursuant to the plan
and the address of its principal
executive office:
Mirant Corporation
1155 Perimeter Center W
Atlanta, Georgia 30338
EXPLANATORY NOTE
The purpose of this Form 11-K/A ("Form 11-K/A") is to amend the Annual
Report on Form 11-K for the fiscal year ended December 31, 2002 filed on
behalf of the Mirant Services Employee Savings Plan in order to correct the
disclosure related to vesting periods in footnote 2 to the financial
statements included in the Form 11-K/A.
MIRANT SERVICES
EMPLOYEE SAVINGS PLAN
FINANCIAL STATEMENTS, SUPPLEMENTAL SCHEDULE AND EXHIBITS
DECEMBER 31, 2002 AND 2001
TABLE OF CONTENTS
INDEPENDENT AUDITORS' REPORT
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
FINANCIAL STATEMENTS
Statements of Net Assets Available for Benefits--December 31, 2002 and 2001
Statement of Changes in Net Assets Available for Benefits for the Year
Ended December 31, 2002
NOTES TO THE FINANCIAL STATEMENTS
SCHEDULE SUPPORTING FINANCIAL STATEMENTS
Schedule I: Schedule H, Line 4i--Schedule of Assets (Held at End of
Year)--December 31, 2002
EXHIBITS
23.1 Independent Auditors' Consent
23.2 Notice Regarding Consent of Arthur Andersen LLP
99.1 Certification pursuant to Section 906 of the Sarbanes-Oxley Act
Independent Auditors' Report
The Plan Administrator
Mirant Services
Employee Savings Plan:
We have audited the accompanying statement of net assets available for benefits
of the Mirant Services Employee Savings Plan (the Plan) as of December 31, 2002,
and the related statement of changes in net assets available for benefits for
the year then ended. These financial statements are the responsibility of the
Plan's management. Our responsibility is to express an opinion on these
financial statements based on our audit. The accompanying statement of net
assets available for benefits as of December 31, 2001 was audited by other
auditors who have ceased operations. Those auditors expressed an unqualified
opinion on the statement of net assets available for benefits as of December 31,
2001, in their report dated April 16, 2002.
We conducted our audit in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the 2002
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the 2002 financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management as well as
evaluating the overall 2002 financial statement presentation. We believe that
our audit provides a reasonable basis for our opinion.
In our opinion, the 2002 financial statements referred to above present fairly,
in all material respects, the net assets available for benefits of the Plan as
of December 31, 2002, and the changes in net assets available for benefits for
the year then ended in conformity with accounting principles generally accepted
in the United States of America.
Our audit was performed for the purpose of forming an opinion on the 2002 basic
financial statements taken as a whole. The supplemental schedule of assets (held
at end of year) as of December 31, 2002 is presented for the purpose of
additional analysis and is not a required part of the 2002 basic financial
statements but is supplementary information required by Department of Labor's
Rules and Regulations for Reporting and Disclosure under the Employee Retirement
Income Security Act of 1974. The supplemental schedule is the responsibility of
the Plan's management. The supplemental schedule has been subjected to the
auditing procedures applied in the audit of the 2002 basic financial statements
and, in our opinion, is fairly stated in all material respects in relation to
the 2002 basic financial statements taken as a whole.
Atlanta, Georgia
June 20, 2003
The following report of independent accountants is a copy of the report
previously issued in connection with the Plan's 2001 financial statements on
Form 11-K and has not been reissued by Arthur Andersen LLP, the former
independent public accountants. The Arthur Andersen report refers to certain
financial information as of December 31, 2000 and for the year ended December
31, 2001, which are no longer included in the accompanying financial statements.
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Plan Administrator of the Mirant Services Employee Savings Plan:
We have audited the accompanying statements of net assets available for benefits
of the Mirant Services Employee Savings Plan as of December 31, 2001 and 2000
and the related statements of changes in net assets available for benefits for
the year ended December 31, 2001 and for the period from December 19, 2000
(inception) through December 31, 2000.
These financial statements and schedules are the responsibility of the Plan's
management. Our responsibility is to express an opinion on these financial
statements and schedules based on our audits. We conducted our audits in
accordance with the auditing standards generally accepted in the United States.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the net assets available for benefits of the Plan as of
December 31, 2001 and 2000 and the changes in its net assets available for
benefits for the year ended December 31, 2001 and for the period from December
19, 2000 (inception) through December 31, 2000 in conformity with accounting
principles generally accepted in the United States.
Our audits were performed for the purpose of forming an opinion on the basic
financial statements taken as a whole. The schedules of assets (held at end of
year) are presented for purposes of additional analysis and are not a required
part of the basic financial statements but are supplementary information
required by Department of Labor Rules and Regulations for Reporting and
Disclosure under the Employee Retirement Income Security Act of 1974. The
schedules have been subjected to the auditing procedures applied in the audits
of the basic financial statements and, in our opinion, are fairly stated in all
material respects in relation to the basic financial statements taken as a
whole.
/s/Arthur Andersen, LLP
-----------------------
Arthur Andersen, LLP
Atlanta, Georgia
April 16, 2002
MIRANT SERVICES
EMPLOYEE SAVINGS PLAN
Statements of Net Assets Available for Benefits
December 31, 2002 and 2001
2002 2001
------------------- -------------------
Assets:
Investments, at fair value (notes 3 and 4) $ 107,620,395 125,103,350
Company contributions receivable 1,084,215 4,475,068
Accrued income 89,257 93,373
------------------- -------------------
Net assets available for benefits $ 108,793,867 129,671,791
=================== ===================
See accompanying notes to financial statements.
MIRANT SERVICES
EMPLOYEE SAVINGS PLAN
Statement of Changes in Net Assets Available for Benefits
Year ended December 31, 2002
Additions (reductions) to net assets attributed to:
Investment income (loss):
Net depreciation in fair value of investments (note 4) $ (31,262,102)
Dividends and interest 3,209,210
-------------------
Total investment loss (28,052,892)
-------------------
Contributions:
Participants 12,224,745
Company 10,634,296
-------------------
Total contributions 22,859,041
-------------------
-------------------
Transfer from affiliated plan (note 7) 342,343
-------------------
-------------------
Total reductions (4,851,508)
-------------------
Deductions:
Benefits paid to participants or beneficiaries 15,871,079
Administrative expenses 6,150
Transfer to other plan (note 8) 149,187
-------------------
Total deductions 16,026,416
-------------------
Net decrease in net assets available for benefits (20,877,924)
Net assets available for benefits:
Beginning of year 129,671,791
-------------------
End of year $ 108,793,867
===================
See accompanying notes to financial statements.
MIRANT SERVICES
EMPLOYEE SAVINGS PLAN
Notes to Financial Statements
December 31, 2002 and 2001
(1) Summary of Significant Accounting Policies
The following is a summary of significant accounting policies followed by
the Mirant Services Employee Savings Plan (Plan) in preparing its financial
statements.
(a) Basis of Presentation
The records of the Plan are maintained on the cash basis of
accounting. The accompanying financial statements of the Plan have
been prepared on the accrual basis of accounting and present the net
assets available for benefits and changes in those net assets.
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States of America requires
management to make estimates and assumptions that affect the reported
amounts of assets, liabilities and changes therein, and disclosure of
contingent assets and liabilities. Actual results could differ from
those estimates.
(b) Investments
Investments in mutual funds and common stocks are stated at fair value
based on quoted market prices or as determined by T. Rowe Price
(Trustee). Investments in money market funds and loans to participants
are stated at cost which approximates fair value. Securities
transactions are accounted for on a trade date basis.
Realized and unrealized investment gains and losses are included in
net depreciation in fair value of investments in the accompanying
statement of changes in net assets available for benefits.
The Plan's investments include funds which invest in various types of
investment securities and in various companies in various markets.
Investment securities, generally, are exposed to several risks, such
as interest rate, market, and credit risks. Due to the level of risk
associated with the funds, it is reasonably possible that changes in
the values of the funds will occur in the near term and such changes
could materially affect the amounts reported in the financial
statements and supplemental schedule.
(c) Fair Value of Financial Instruments
Investments in securities are stated at fair value. In addition,
management of the Plan believes that the carrying amount of
contribution receivable and accrued income is a reasonable
approximation of the fair value due to the short-term nature of these
instruments.
(2) Plan Description
The following description of the Plan provides only general information.
Participants should refer to the summary plan description or the plan
document for a more complete description of the Plan's provisions.
(a) General
The Plan is a defined contribution plan sponsored by Mirant Services,
LLC (the Company), a wholly owned subsidiary of Mirant Corporation,
covering all regular full-time and part-time employees of the Company,
excluding persons who are members of a collective bargaining unit, a
cooperative education employee, or a leased or temporary employee, as
defined. The Plan is subject to the applicable provisions of the
Employee Retirement Income Security Act of 1974 (ERISA), as amended.
The Plan is administered by a benefits committee appointed by the
Company. The benefits committee is responsible for the control,
management, and administration of the Plan and the assets held in
trust at the Trustee as of December 31, 2002 and 2001 and for the year
ended December 31, 2002.
On January 19, 2001, Southern Energy, Inc. announced, as part of its
separation from Southern Company, that it was changing its name to
Mirant Corporation. It began doing business as Mirant Corporation on
January 22, 2001 and legally changed the name on February 26, 2001.
The Company, noted above, is the employing company and plan sponsor.
(b) Transferred Accounts and Merged Plans
In December 2000, an affiliate of Southern Energy Resources, Inc.
acquired certain assets of Potomac Electric Power Company (PEPCO).
Pursuant to the acquisition, certain former employees of PEPCO who
were eligible to participate in the PEPCO Exempt Retirement Savings
Plan and the PEPCO Nonbargaining Unit, Nonexempt Retirement Savings
Plan became eligible to participate in the Plan on December 19, 2000.
The accounts of the former PEPCO employees who elected to a Voluntary
Trust-to-Trust transfer were transferred into the Plan in early 2001
and were mapped to investments under the Plan with comparable
investment objectives. The portions of the participants' accounts,
which were invested in the PEPCO stock fund prior to the transfer,
were invested in PEPCO common stock under the Plan.
In conjunction with the Company's spin-off from Southern Company, if
an employee was eligible to participate in the Plan on April 2, 2001,
his accounts under the Southern Company Employee Savings Plan,
Southern Company Employee Stock Ownership Plan, and the Southern
Company Performance Savings Plan were transferred to the Plan
beginning on May 1, 2001 (collectively referred to as the Southern
Transferred Accounts). The Southern Transferred Accounts were mapped
to investments under the Plan with comparable investment objectives.
The portions of the participants' accounts, which were invested in the
Southern Company stock fund prior to the transfer, were invested in
Southern Company common stock under the Plan.
In addition, on May 1, 2001, the assets of the Southern Company Energy
Marketing Employee Savings Plan (the SCEM) merged into the Plan and
were mapped to investments under the Plan with comparable investment
objectives. Certain participants in the SCEM plan previously
participated in the Vastar Savings Plan or the Vastar Capital
Accumulation Plan. Once the participants' accounts were transferred to
the SCEM plan, the participants could not invest new contributions in
the Atlantic Richfield Company (ARCO) stock fund. Effective April
2000, the SCEM plan replaced each share of ARCO stock with 1.64 shares
of BP Amoco stock, as ARCO was acquired by BP Amoco during calendar
year 2000. The portions of the participants' accounts which were
invested in the BP Amoco stock fund prior to the transfer were
invested in BP Amoco common stock under the Plan.
(c) Contributions
Participants may elect to contribute, on a pretax or after-tax basis,
in 1% increments up to 30% of their compensation, subject to certain
limitations defined by the Plan. Participants may allocate their
contributions in multiples of 1% to various investment funds of the
Plan. Participants may change their contribution percentages at any
time. Participants may also contribute amounts representing eligible
rollover distributions from other qualified retirement plans. The
Company provides a matching contribution equal to 75% of the
participant's contribution up to a maximum of 6% of the participant's
base compensation. The Company's matching contribution is invested in
the Company stock fund; however, participants may redirect these
contributions to any of the investment funds offered by the Plan.
For all nonunion full-time and part-time employees who do not
participate in a defined benefit plan, the Company makes a quarterly
fixed profit-sharing contribution equal to 3% of each eligible
participant's compensation. In addition, the Company may elect to make
a discretionary annual profit-sharing contribution to the Plan ranging
from 0% to 7% of the participant's eligible compensation to be
allocated pro rata. Eligible compensation is the participant's actual
base salary pay plus short-term incentive pay received during the
period. The Company made discretionary contributions of $1,068,459 for
the year ended December 31, 2002.
(d) Participant Accounts
Each participant's account is credited with the participant's
contribution, the Company's matching contributions, and an allocation
of any profit-sharing contributions (if applicable). Investment income
(loss), realized gains/losses, and the change in unrealized
appreciation or depreciation on plan investments are credited to
participants' accounts daily based on the proportion of each
participant's account balance to the total account balance within each
investment fund.
A participant may direct his contributions and the fixed
profit-sharing contributions into any of the investment fund options
offered by the Plan. A participant may change his election options at
any time. Company matching and discretionary profit-sharing
contributions are initially invested in the Company stock fund until
the participant elects to redirect the contributions to another
investment fund.
Participants with investments held in the Southern Company stock fund,
PEPCO stock fund, and BP Amoco stock fund will have five years (until
March 31, 2006) to liquidate their investment position in the stock
and transfer the proceeds into other investment options within the
Plan. These Plan investment options are considered frozen; therefore,
no new contributions may be made into these options. There are no
other restrictions on transferring in or out of any other investment
options within the Plan.
(e) Benefits
Upon termination of service, death, or disability, a participant or
his beneficiary may elect to receive an amount equal to the value of
his account in a lump-sum distribution. If account balances are less
than $5,000, participants will automatically receive a lump-sum
payment. If a participant retires, he may elect to receive a lump-sum
distribution or annual installments for a period not to exceed 20
years or life expectancy. Distributions upon termination of service,
retirement, disability, or death are normally made in cash unless
shares of common stock are requested.
Under the terms of the Plan, participants may make hardship
withdrawals from their accounts upon furnishing proof of hardship as
specified in the Plan agreement.
A participant may borrow the lesser of $50,000, less the highest
outstanding loan balance in the previous 12 months, or 50% of his
vested account balance, with a minimum loan amount of $1,000. Loans
are repayable through payroll deductions over the respective term of
the loan. The interest rate is determined by the plan administrator
based on the current prime rate at the time of the loan and is fixed
over the life of the note. A participant may have up to two
general-purpose loans and one loan for a residence outstanding at any
given time.
(f) Vesting
Participants are immediately vested in their before-tax and after-tax
contributions, and roll-over contributions. Active employees as of
April 2, 2001 are always 100% vested in the Company matching
contributions. The vested percentage of the participant's fixed
profit-sharing and discretionary profit-sharing contributions is based
on the participant's years of service. Company matching for new hires
after April 2, 2001 also vests based on the participant's years of
service. Vesting percentages are as follows:
Company matching and fixed profit-sharing contributions Vested percent
Years of service:
Less than one 0%
One but less than two 33-1/3
Two but less than three 66-2/3
Three or more 100
Discretionary profit-sharing contributions Vested percent
Years of service:
Less than three 0%
Three or more 100
Participants with a Transferred Performance Sharing Plan account are
100% vested after five years of service. Amounts forfeited by
participants who terminate from the Plan prior to being 100% vested
are applied to reduce subsequent Company contributions to the Plan.
Forfeitures totaled $360,497 in 2002.
(g) Administrative Expenses
Certain administrative expenses of the Plan are paid by the Company.
These costs include legal, accounting, and certain administrative
fees.
(3) Transactions with Parties-in-Interest
At December 31, 2002 and 2001, the Plan held investments in funds sponsored
by the Trustee with current values of $61,199,530 and $64,832,956,
respectively. The Plan held investments in 327,993 and 354,797 shares of
PEPCO Stock Fund with current values of $6,359,791 and $8,007,764 at
December 31, 2002 and 2001, respectively. The Plan held investments in
668,025 and 897,663 shares of Southern Company with current values of
$18,965,234 and $22,755,754 at December 31, 2002 and 2001, respectively.
The Plan held 3,575,373 and 1,027,663 shares of Mirant Corporation common
stock with current values of $6,685,948 and $16,463,171 at December 31,
2002 and 2001, respectively. These transactions qualify as
party-in-interest transactions.
(4) Investments
Individual assets that represent 5% or more of the Plan's net assets
available for benefits as of December 31, 2002 and 2001 are as follows:
2002 2001
T. Rowe Price Stable Value Fund $ 20,371,490 17,426,118
Mirant Corporation Stock Fund 6,685,948 16,463,171
T. Rowe Price Equity Index Trust Fund 12,605,642 15,436,438
T. Rowe Price Personal Strategy Balanced Fund 6,414,889 7,262,655
T. Rowe Price Small Cap Stock Fund 6,661,550 6,698,243
T. Rowe Price Blue Chip Growth Fund 11,012,204 14,496,273
PEPCO Stock Fund 6,359,791 8,007,764
Southern Company Stock Fund 18,965,234 22,755,754
During 2002, the Plan's investments depreciated as follows:
Common Stocks $ (19,857,968)
Mutual Funds (11,404,134)
--------------
Net depreciation in fair value $ (31,262,102)
==============
(5) Federal Income Taxes
The Internal Revenue Service has determined and informed the Company by a
letter dated October 25, 2002 that the Plan is designed in accordance with
applicable sections of the Internal Revenue Code (IRC). The Plan has been
amended since receiving the determination letter. However, the Plan
administrator believes that the Plan is designed and is currently being
operated in compliance with the applicable requirements of the IRC.
(6) Plan Termination
While it is the Company's intention to continue the Plan indefinitely, the
Company has the right under the Plan to discontinue its contributions at
any time and to terminate the Plan subject to the provisions of ERISA and
the Plan agreement. In the event of Plan termination, participants will
become 100% vested in their accounts.
(7) Transfers from Affiliated Plan
During 2002, due to changes in employment status, the Plan received
transferred account balances of certain participants from the Mirant
Services Bargaining Unit Employee Savings Plan.
(8) Transfer to Other Plan
Effective June 5, 2002, following the sale of Stateline Power generating
facility (Stateline), plan assets of $149,187 attributable to Stateline
employees were transferred to the Dominion Salaried Savings Plan.
(9) Partial Plan Termination
During 2002, Mirant adopted a plan to restructure its operations by exiting
certain activities, canceling and suspending planned power plan
developments, closing business development offices, and severing employees.
The restructuring caused the Plan to experience a partial plan termination
event, the consequences of which were that those employees who were not
100% vested in their benefits and who terminated in connection with the
restructuring, became vested pursuant to the provision set forth in Section
15.2 of the Plan.
(10) Litigation
On April 17, 2003, a purported class action lawsuit alleging violations of
ERISA was filed in the United States District Court for the Northern
District of Georgia entitled James Brown v. Mirant Corporation, et al.,
Civil Action No. 1:03-CV-1027 (the ERISA Litigation). The ERISA Litigation
names as defendants Mirant Corporation, certain of its current and former
officers and directors, and Southern Company. The plaintiff, who seeks to
represent a putative class of participants and beneficiaries of the plan
alleges that defendants breached their duties under ERISA by, among other
things: (1) concealing information from the Plans' participants and
beneficiaries; (2) failing to ensure that the Plans' assets were invested
prudently; (3) failing to monitor the Plans' fiduciaries; and (4) failing
to engage independent fiduciaries to make judgments about the Plans'
investments. The plaintiff seeks unspecified damages, injunctive relief,
attorneys' fees and costs.
On June 3, 2003, a second purported class action lawsuit alleging
violations of ERISA was filed in the United States District Court for the
Northern District of Georgia entitled Greg Waller v. Mirant Corporation, et
al., Civil Action No. 1:03-CV-1558 (the ERISA Litigation II). The ERISA
Litigation II names as defendants Mirant Corporation, certain of its
current and former officers and directors, and Southern Company. The claims
asserted, factual allegations made, and the relief underlying this lawsuit
are substantially similar to those described above in the ERISA Litigation.
MIRANT SERVICES
EMPLOYEE SAVINGS PLAN
Schedule H, Line 4i - Schedule of
Assets (Held at End of Year)
December 31, 2002
Current
Identity of issuer Description of investments value
---------------------------------------------------------- ---------------------------------------- ------------------
Franklin Small Cap Growth Fund 142,741 mutual fund units $ 3,133,167
Scudder International Fund 53,743 mutual fund units 1,631,623
American New Perspective Fund 74,476 mutual fund units 1,343,547
PIMCO Total Return Fund 499,539 mutual fund units 5,330,082
* T. Rowe Price Equity Index Trust Fund 524,797 mutual fund units 12,605,642
* T. Rowe Price Personal Strategy Income Fund 62,750 mutual fund units 753,001
* T. Rowe Price Personal Strategy Balanced Fund 472,726 mutual fund units 6,414,889
* T. Rowe Price Personal Strategy Growth Fund 207,973 mutual fund units 3,146,637
* T. Rowe Price Small Cap Stock Fund 309,840 mutual fund units 6,661,550
* T. Rowe Price Blue Chip Growth Fund 501,695 mutual fund units 11,012,204
* T. Rowe Price Tradelink Investments 234,117 mutual fund units 234,117
* T. Rowe Price Stable Value Fund 20,371,490 money market fund units 20,371,490
* Mirant Corporation Stock Fund 3,575,373 shares of common stock 6,685,948
BP Amoco Stock Fund 11,919 shares of common stock 484,510
* PEPCO Stock Fund 327,993 shares of common stock 6,359,791
* Southern Company Stock Fund 668,025 shares of common stock 18,965,234
Participant loans (interest rates ranging from
4.25% to 4.75% with maturity dates through
December 31, 2017) 2,486,963
------------------
$ 107,620,395
==================
* Indicates a party-in-interest to the Plan.
See accompanying independent auditors' report.
SIGNATURE
The Plan. Pursuant to the requirements of the Securities Exchange Act of
1934, the trustees (or other persons who administer the employee benefit plan)
have duly caused this annual report to be signed by the undersigned thereunto
duly authorized.
MIRANT SERVICES
EMPLOYEE SAVINGS PLAN
/S/ Vance Booker
Vance Booker
Senior Vice President
Administration and Technical
June 30, 2003
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Mirant Corporation:
We consent to the incorporation by reference in registration statement (No.
333-56574) on Form S-8 of our report dated June 20, 2003, relating to the
statement of net assets available for plan benefits of the Mirant Services
Employee Savings Plan as of December 31, 2002 and the related statement of
changes in net assets available for plan benefits for the year ended December
31, 2002 and related supplemental schedule, which report appears in the December
31, 2002 annual report on Form 11-K/A Amendment No.1 of the Mirant Services
Employee Savings Plan.
/s/KPMG LLP
Atlanta, Georgia
June 25, 2003
EXHIBIT 23.2
NOTICE REGARDING CONSENT OF ARTHUR ANDERSEN LLP
Section 11(a) of the Securities Act of 1933, as amended (the "Securities
Act"), provides that if any part of a registration statement at the time such
part becomes effective contains an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, any person acquiring a security
pursuant to such registration statement (unless it is proved that at the time of
such acquisition such person knew of such untruth or omission) may sue, among
others, every accountant who has consented to be named as having prepared or
certified any part of the registration statement, or as having prepared or
certified any report or valuation which is used in connection with the
registration statement, with respect to the statement in such registration
statement, report or valuation which purports to have been prepared or certified
by the accountant.
This Form 11-K/A is incorporated by reference into the following previously
filed registration statements of Mirant Services Employee Savings Plan (the
Plan): Registration Statement on Form S-8 file number 333-56574 (the
"Registration Statement") and, for purposes of determining liability under the
Securities Act, is deemed to be a new registration statement for each
Registration Statement into which it is incorporated by reference.
On May 15, 2002, the Plan dismissed Arthur Andersen LLP ("Arthur Andersen")
as its independent public accountant and appointed KPMG LLP to replace Arthur
Andersen. Both the engagement partner and the manager for the Plan's prior
fiscal year audit are no longer with Arthur Andersen. As a result, the Plan has
been unable to obtain Arthur Andersen's written consent to incorporate by
reference into the Registration Statements Arthur Andersen's audit report
regarding the Plan's financial statements as of December 31, 2001. Under these
circumstances, Rule 437a under the Securities Act and Rule 2-02 of Regulation
S-X promulgated by the Securities and Exchange Commission permit the Plan to
file this Form 11-K/A without a written consent from Arthur Andersen. As a
result, however, Arthur Andersen will have no liability under Section 11(a) of
the Securities Act for any untrue statements of a material fact contained in the
financial statements audited by Arthur Andersen or any omissions of a material
fact required to be stated therein. Accordingly, you would be unable to assert a
claim against Arthur Andersen under Section 11(a) of the Securities Act for any
purchases of securities under the Registration Statements made on or after the
date of the Form 11-K/A. However, to the extent provided in Section 11(b)(3)(C)
of the Securities Act, other persons who are liable under Section 11(a) of the
Securities Act, including the Plan's officers and directors, may still rely on
Arthur Andersen's original audit reports as being made by an expert for purposes
of establishing a due diligence defense under Section 11(b) of the Securities
Act.
EXHIBIT 99.1
CERTIFICATION PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT
June 30, 2003
U. S. Securities and Exchange Commission 450 Fifth Street, N. W.
Washington, D.C. 20549
Ladies and Gentlemen:
The certification set forth below is being submitted to the Securities and
Exchange Commission solely for the purpose of complying with Section 1350 of
Chapter 63 of Title 18 of the United States Code. This certification is not to
be deemed to be filed pursuant to the Securities Exchange Act of 1934 and does
not constitute a part of the Annual Report for the Mirant Services Employee
Savings Plan (the "Plan") on Form 11-K/A for the period ending December 31, 2002
(the "Report") accompanying this letter.
Vance N. Booker, the Senior Vice President, Administration and Technical of
Mirant Corporation ("Mirant"), the deemed Chief Executive Officer of the Plan,
and Harvey A. Wagner, the Chief Financial Officer of Mirant, the deemed Chief
Financial Officer of the Plan, each certifies that, to the best of their
knowledge:
1. such Report fully complies with the requirements of Section 13(a) of
the Securities Exchange Act of 1934; and
2. the information contained in the Report fairly presents, in all
material respects, the net assets available for benefits and changes
in net assets available for benefits of the Plan.
/s/ Vance N. Booker
--------------------------------------------
Name: Vance N. Booker
Title: deemed Chief Executive Officer
/s/ Harvey A. Wagner
--------------------------------------------
Name: Harvey A. Wagner
Title: Chief Financial Officer
A signed original of this written statement required by Section 906 has been
provided to Mirant Corporation and will be retained by Mirant Corporation and
furnished to the Securities and Exchange Commission or its staff upon request.