jrcc_10k-ex1015a.htm


    Exhibit 10.15a


    
 

    AMENDMENT
TO

    JAMES
RIVER COAL COMPANY SEVERANCE AND RETENTION PLAN

    


     

    THIS
AMENDMENT is made as of the ___ day of December, 2008, by JAMES RIVER COAL
COMPANY (the “Company”);

     

    W I T N E S S E T
H:

     

    WHEREAS,
the Company maintains the James River Coal Company Severance and Retention Plan
(the “Plan”); and

     

    WHEREAS,
the Company desires to amend the Plan to comply with certain provisions of the
final regulations under Section 409A of the Code (“Section 409A”) and for
certain other purposes.

     

    NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the Plan is hereby amended as follows:

     

    


    1.           The
definition of Good Reason in Article 2.1 is amended by deleting the present
definition in its entirety and substituting the following in lieu
thereof:

    


    ““Good Reason” shall mean the occurrence
(without Participant’s express written consent) of any one of the following acts
by the Company, or failures by the Company to act, unless in the case of any
Company act or failure to act described below, such act or failure to act is
corrected  by the Company within thirty (30) days after written notice
thereof by the Participant to the Company.

    


    (a)           a
material reduction in Participant’s duties or responsibilities; provided,
however, that the fact that Participant’s employment after a Change in Control
shall be with a non-publicly traded subsidiary of an entity resulting from or
surviving the Change in Control, if that is the case, shall not of itself be
deemed a material diminution in Participant’s duties or responsibilities for
purposes of this paragraph;

    


    (b)           a
material reduction in Participant’s base salary;

    


    (c)           the
relocation or Participant’s office from its location on the Effective Date to a
location more than 35 miles away; or

    


    (d)           the
Company’s material breach of any other provision of this Plan.

    


    Participant’s
right to terminate Participant’s employment for Good Reason shall not be
affected by the Participant’s incapacity due to physical or mental illness,
except for a Disability.

    


    Any claim
of Good Reason shall be communicated by Participant to the Company in writing
within ninety (90) days of the occurrence of the event giving rise to
Participant’s claim and shall specifically identify the factual details
concerning the event(s) giving rise to Participant’s claim of Good
Reason.  The Company shall have an opportunity of at least thirty (30)
days to cure any claimed event of Good Reason prior to the specified Date of
Termination.”


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    


    


    2.           Section
5.1(c) is amended by deleting that paragraph in its entirety and substituting
the following:

    


    “(c)                    The
group medical and dental plan and group term life insurance coverages provided
to Severance Participant at his Date of Termination shall be continued at the
same level as for active employees and in the same manner as if his employment
had not terminated, beginning on the Date of Termination and continuing for the
Severance Period.  Any additional coverages Severance Participant had
at termination, including dependent coverage, will also be continued for such
period on the same terms, to the extent permitted by the applicable policies or
contracts.  Any costs Severance Participant was paying for such
coverages at the time of termination shall be paid by Severance Participant by
separate check payable to the Company each month in advance.  If the
terms of the group term life insurance plan, or the laws applicable to such
plan, do not permit continued participation by Severance Participant, then the
Company will pay Severance Participant a lump sum amount equal to the costs of
such coverage(s) for the applicable Severance Period.  If the terms of
the group health and dental plans referred to in this subsection do not permit
continued participation by Severance Participant as required by this subsection,
or if the health and dental benefit plan coverage is provided under a
self-insured plan maintained by the Company (within the meaning of Section
105(h)), then the Company shall (A) pay to Severance Participant a lump sum
payment within thirty (30) days after Severance Participant’s Date of
Termination equal to the number of months in the Severance Period, multiplied by
the monthly rate for COBRA coverage under the health and dental plans that, as
of the Severance Participant’s Date of Termination, is being paid by former
active employees for the level of coverage that applies to Severance Participant
and his dependents, minus the amount active employees are then paying for such
coverage, and (B) to the extent permitted under the applicable plans,
permit Severance Participant and his dependents to elect to participate in the
health and dental plans for the Severance Period upon payment of the applicable
rate for COBRA coverage during the Severance Period.  The coverages
provided for in this Section shall be applied against and reduce the period for
which COBRA coverage will be provided.”


    


    3.           Section
5.4 is amended by adding the following sentence prior to the first sentence of
such section:

    


    “This
Agreement will be construed and administered to preserve the exemption from
Section 409A of the Code of payments that qualify as a short-term deferral or
that qualify for the two-times separation pay
exception.  ”


    


    4.           Article
Seven is amended by adding the following as a new Section 7.2:

    


    7.2           Claims Procedure When
Benefits Are Disputed

    


    (a)           Claims
for Benefits.  A Participant or his or her duly authorized
representative (the “claimant”) may make a claim for benefits under the Plan to
the Committee.  The claim shall be reviewed, and the claimant shall be
notified in writing of the Committee’s decision within ninety (90) days
following the date the Committee receives the claim.  If special
circumstances are involved, this ninety (90) day period may be extended for up
to an additional ninety (90) days.  If such an extension is necessary,
the claimant shall receive written notice of the extension before the end of the
initial ninety (90) day period.


    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    


    If the claim is denied, the notice
shall explain the reason for the denial, quoting the sections of the Plan or
other pertinent documents, if any, used to arrive at this decision; provide a
description of any additional material or information that would be helpful to
the Committee in further review of the claim and reasons why such material or
information is necessary; and provide an explanation of the claims review
procedure.

    


    (b)           Appeals.  If
a claimant is not satisfied with the decision of the Committee regarding the
claim, the claimant may appeal the decision of the Committee by filing a written
request with the Committee.  This written request must be filed with
the Committee within sixty (60) days following the date the claimant receives
the written decision of the Committee.  The claimant may review any
applicable documents and may also submit points of disagreement or other
comments in writing.   The Committee, in its discretion, may
schedule a meeting with the Participant and/or his or her representative within
sixty (60) days after the claimant has filed the request for
review.  Within sixty (60) days of the date of the receipt of the
request for review by the Committee, the claimant shall receive written notice
of the Committee’s final decision.  However, if a hearing is held or
there are other special circumstances involved, the decision shall be given no
later than one hundred and twenty (120) days following the date the Committee
receives the appeal.  If such an extension of time is necessary, the
claimant shall receive written notice of the extension before it
begins.

    


    (c)           The
Committee shall interpret this Section 7.2 such that the claims procedures
applicable under the Plan conform to the claims review requirements of Part 5,
Title I of ERISA.

    


    


    5.           Except
as expressly provided herein, the Plan shall remain in full force and
effect.

     

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

    


    This Amendment to the Plan shall be
effective as of the date hereof, subject to the transition rules of Section
409A.

     

    IN
WITNESS WHEREOF, the Company has executed this Amendment as of the date first
written above.

     

    


    


    
      	 
      	
              James
      River Coal Company

            
	 
      	 
      
	 
      	
              By:     /s/ Samuel M. Hopkins
      II

            
	 
      	
              Name:
      Samuel M. Hopkins II

            
	 
      	
              Title:
      Vice President

            


    

    


     

     

    4