UNITED STATES


SECURITIES AND EXCHANGE COMMISSION


Washington, D.C. 20549





FORM 10-Q


(Mark One)




[X]       QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
 For the quarterly period ended June 30, 2009
 
 OR
 
 [_]       TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934




For the transition period from __________________ to __________________





Commission File Number   000-51129





JAMES RIVER COAL COMPANY


Exact name of registrant as specified in its charter)





Virginia

54-1602012(State or other jurisdiction

(I.R.S. Employerof incorporation or organization)

Identification No.)901 E. Byrd Street, Suite 1600Richmond, Virginia

23219(Address of principal executive offices)

(Zip Code)





Registrant’s telephone number, including area code:  (804) 780-3000





Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.


Yes    ý             No    o





Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that
the registrant was required to submit and post such files).





Yes   o             No    o





Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act.





Large accelerated filer ý
Accelerated filer  oNon-accelerated filer(Do not check if a smaller reporting company)  o
Smaller reporting company  o





Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).


YesoNoý





Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Section 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court.


Yes    ý             No    o





The number of shares of the registrant’s Common Stock, par value $.01 per share, outstanding as of July 20, 2009 was 27,551,964.














FORM 10-Q INDEX










PART I
FINANCIAL INFORMATIONPageItem 1.
Financial Statements
3Condensed Consolidated Balance Sheets as of June 30, 2009 and December 31, 2008
3Condensed Consolidated Statements of Operations for the three months ended June 30, 2009 and 2008
5Condensed Consolidated Statements of Operations for the six months ended June 30, 2009 and 2008
6Condensed Consolidated Statements of Changes in Shareholders’ Equity and
Comprehensive Income (Loss) for the six months ended June 30, 2009 and the year  ended
December 31, 2008
7Condensed Consolidated Statements of Cash Flows for the six months ended  June 30, 2009 and 2008
8Notes to Condensed Consolidated Financial Statements
9Item 2.
Management’s Discussion and Analysis of Financial Condition and Results of Operations.
18Item 3.
Quantitative and Qualitative Disclosures about Market Risk.
31Item 4.
Controls and Procedures.
32PART II
OTHER INFORMATION
32Item 1.
Legal Proceedings.
32Item 1A.
Risk Factors.
32Item 2.
Unregistered Sales of Equity Securities and Use of Proceeds.
44Item 3.
Defaults Upon Senior Securities.
44Item 4.
Submission of Matters to a Vote of Security Holders.
44Item 5.
Other Information.
45Item 6.
Exhibits.
4546SIGNATURES













PART I                                      FINANCIALINFORMATION





ITEM 1.  FINANCIALSTATEMENTS





JAMES RIVER COAL COMPANY


AND SUBSIDIARIES





CondensedConsolidated Balance Sheets


(in thousands)





June 30,
2009


December 31,
2008Assets

(unaudited)Current assets:Cash and cash equivalents

$
1,908



3,324Receivables:Trade


43,058



33,086Other


227



475Total receivables


43,285



33,561Inventories:Coal


29,568



6,847Materials and supplies


11,190



9,581Total inventories


40,758



16,428Prepaid royalties


5,210



2,803Other current assets


4,652



5,094Total current assets


95,813



61,210Property, plant, and equipment, at cost:Land


7,114



6,693Mineral rights


230,932



229,841Buildings, machinery and equipment


335,631



320,982Mine development costs


39,960



39,596Total property, plant, and equipment


613,637



597,112Less accumulated depreciation, depletion, and amortization


270,679



252,264Property, plant and equipment, net


342,958



344,848Goodwill


26,492



26,492Other assets


26,394



30,996Total assets

$
491,657



463,546See accompanying notes to condensed consolidated financial statements.





-3-


JAMES RIVER COAL COMPANY


AND SUBSIDIARIES





Condensed Consolidated Balance Sheets


(in thousands, except share amounts)





June 30,
2009


December 31,
2008Liabilities and Shareholders' Equity

(unaudited)Current liabilities:Current maturities of long-term debt (note 2)

$
-



18,000Accounts payable


55,698



57,068Accrued salaries, wages, and employee benefits


9,144



6,642Workers' compensation benefits


9,300



9,300Black lung benefits


1,539



1,539Accrued taxes


5,403



4,457Other current liabilities


12,156



19,165Total current liabilities


93,240



116,171Long-term debt, less current maturities


150,000



150,000Other liabilities:Noncurrent portion of workers' compensation benefits


48,629



46,477Noncurrent portion of black lung benefits


29,698



29,029Pension obligations


19,962



19,693Asset retirement obligations


37,498



36,409Other


619



529Total other liabilities


136,406



132,137Total liabilities


379,646



398,308Commitments and contingencies (note 4)Shareholders' equity:Preferred stock, $1.00 par value.  Authorized 10,000,000 shares


-



-Common stock, $.01 par value.  Authorized 100,000,000 shares;issued and outstanding 27,551,964 and 27,393,493 sharesas of June 30, 2009 and December 31, 2008, respectively


276



274Paid-in-capital


273,985



272,366Accumulated deficit


(143,363
)


(187,712
)Accumulated other comprehensive loss


(18,887
)


(19,690
)Total shareholders' equity


112,011



65,238Total liabilities and shareholders' equity

$
491,657



463,546See accompanying notes to condensed consolidated financial statements.


-4-


JAMES RIVER COAL COMPANY


AND SUBSIDIARIES





CondensedConsolidated Statements of Operations


(in thousands, except per share data)


(unaudited)








Three Months


Three MonthsEnded


EndedJune 30, 2009


June 30, 2008Revenues

$
171,649



137,703Cost of sales:Cost of coal sold


127,721



128,867Depreciation, depletion and amortization


15,922



17,552Total cost of sales


143,643



146,419Gross profit (loss)


28,006



(8,716
)Selling, general and administrative expenses


10,559



8,732Total operating income (loss)


17,447



(17,448
)Interest expense (note 2)


3,814



4,186Interest income


(25
)


(174
)Charges associated with repayment and amendment of debt (note 2)


-



3,013Miscellaneous income, net


(90
)


(467
)Total other expense, net


3,699



6,558Income (loss) before income taxes


13,748



(24,006
)Income tax expense (benefit)


(2,430
)


-Net income (loss)

$
16,178



(24,006
)Earnings (loss) per common share (note 5)Basic earnings (loss) per common share

$
0.59



(0.97
)Diluted earnings (loss) per common share

$
0.59



(0.97
)See accompanying notes to condensed consolidated financial statements.








-5-


JAMES RIVER COAL COMPANY


AND SUBSIDIARIES





CondensedConsolidated Statements of Operations


(in thousands, except per share data)


(unaudited)





Six Months


Six MonthsEnded


EndedJune 30, 2009


June 30, 2008Revenues

$
363,770



275,891Cost of sales:Cost of coal sold


260,428



254,597Depreciation, depletion and amortization


30,395



34,842Total cost of sales


290,823



289,439Gross profit (loss)


72,947



(13,548
)Selling, general and administrative expenses


19,846



16,066Total operating income (loss)


53,101



(29,614
)Interest expense (note 2)


7,867



9,075Interest income


(50
)


(262
)Charges associated with repayment and amendment of debt (note 2)


-



3,013Miscellaneous income, net


(144
)


(746
)Total other expense, net


7,673



11,080Income (loss) before income taxes


45,428



(40,694
)Income tax expense


1,079



-Net income (loss)

$
44,349



(40,694
)Earnings (loss) per common share (note 5)Basic earnings (loss) per common share

$
1.61



(1.76
)Diluted earnings (loss) per common share

$
1.61



(1.76
)See accompanying notes to condensed consolidated financial statements.


-6-





JAMES RIVER COAL COMPANY


AND SUBSIDIARIES


CondensedConsolidated Statements of Changes in Shareholders’


Equity and Comprehensive Income (Loss)


(in thousands)


(unaudited)








Common
stock
shares


Common
stock par
value


Paid-in-
capital


Retained
earnings
(accumulated
deficit)


Accumulated
other
comprehensive
income (loss)


TotalBalances, January 1, 2008


21,906


$
219



159,403



(91,719
)


1,871



69,774Net loss


-



-



-



(95,993
)


-



(95,993
)Amortization of black lung liability


-



-



-



-



(562
)


(562
)Black lung obligation adjustment


-



-



-



-



(5,334
)


(5,334
)Pension liability adjustment


-



-



-



-



(15,665
)


(15,665
)Comprehensive loss






















(117,554
)Issuance on common stock, net of offering  costs of $421


4,913



49



93,771



-



-



93,820Common stock issued for acquisition of mineral rights (note 2)


388



4



15,996



-



-



16,000Issuance of restricted stock awards, net of forfeitures


238



2



(2
)


-



-



-Repurchase of shares for tax withholding


(72
)


-



(2,474
)


-



-



(2,474
)Exercise of Stock Options


20



-



542



-



-



542Stock based compensation


-



-



5,130



-



-



5,130Balances, December 31, 2008


27,393



274



272,366



(187,712
)


(19,690
)


65,238Net Income


-



-



-



44,349



-



44,349Amortization of pension actuarial amount


-



-



-



-



803



803Comprehensive income






















45,152Issuance of restricted stock awards, net of forfeitures


232



2



(2
)


-



-



-Repurchase of shares for tax withholding


(78
)


-



(1,540
)


-



-



(1,540
)Exercise of Stock Options


5



-



75



-



-



75Stock based compensation


-



-



3,086



-



-



3,086Balances, June 30, 2009


27,552


$
276



273,985



(143,363
)


(18,887
)


112,011








-7-




JAMES RIVER COAL COMPANY


AND SUBSIDIARIES





CondensedConsolidated Statements of Cash Flows


(in thousands)


(unaudited)





Six Months


Six MonthsEnded


EndedJune 30, 2009


June 30, 2008Cash flows from operating activities:Net income (loss)

$
44,349



(40,694
)Adjustments to reconcile net income (loss) to net cash (used in) provided by operating activitiesDepreciation, depletion, and amortization


30,395



34,842Accretion of asset retirement obligations


1,586



1,335Amortization of deferred financing costs


587



753Stock-based compensation


3,086



2,120Gain on sale or disposal of property, plant, and equipment


-



(206
)Write-off of deferred financing costs


-



1,125Changes in operating assets and liabilities:Receivables


(9,724
)


(148
)Inventories


(22,286
)


(4,001
)Prepaid royalties and other current assets


(1,965
)


285Other assets


4,015



206Accounts payable


(1,370
)


1,749Accrued salaries, wages, and employee benefits


2,502



1,065Accrued taxes


(594
)


(1,052
)Other current liabilities


(7,246
)


744Workers' compensation benefits


2,152



1,130Black lung benefits


669



688Pension obligations


1,072



(1,039
)Asset retirement obligation


(491
)


(733
)Other liabilities


90



97Net cash provided by (used in) operating activities


46,827



(1,734
)Cash flows from investing activities:Additions to property, plant, and equipment


(30,318
)


(23,483
)Proceeds from sale of property, plant, and equipment


-



1,046Net cash used in investing activities


(30,318
)


(22,437
)Cash flows from financing activities:Borrowings under Revolver


7,500



-Repayments under Revolver


(25,500
)


-Repayment of long-term debt


-



(21,847
)Net proceeds from issuance of common stock


-



50,023Debt issuance costs


-



(486
)Proceeds from exercise of stock option


75



542Net cash provided by (used in) financing activities


(17,925
)


28,232Increase (decrease) in cash


(1,416
)


4,061Cash at beginning of period


3,324



5,413Cash at end of period

$
1,908



9,474


See accompanying notes to condensed consolidated financial statements.





-8-





JAMES RIVER COAL COMPANY


AND SUBSIDIARIES





Notesto Condensed Consolidated Financial Statements





(Unaudited)







(1)
Summary of Significant Accounting Policies and Other Information




Description of Business and Principles of Consolidation




James River Coal Company and its wholly owned subsidiaries (collectively the Company) mine, process and sell bituminous, steam- and industrial-grade coal through five operating complexes located throughout eastern Kentucky and one in southern Indiana. Substantially all coal sales and account receivables relate to the
electric utility and industrial markets.





The interim condensed consolidated financial statements of the Company presented in this report are unaudited. All significant intercompany balances and transactions have been eliminated in consolidation. The results of operations for any interim period are not necessarily indicative of the results to be expected for
the full year. These condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and the notes thereto for the year ended December 31, 2008. The balances presented as of or for the year ended December 31, 2008 are derived from the Company’s audited consolidated financial statements.





Management of the Company has made a number of estimates and assumptions relating to the reporting of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities in order to prepare these condensed consolidated financial statements in conformity with U.S. generally accepted accounting
principles. Significant estimates made by management include the valuation allowance for deferred tax assets, asset retirement obligations and amounts accrued related to the Company’s workers’ compensation, black lung, pension and health claim obligations. Actual results could differ from these estimates. In the opinion of management, the accompanying unaudited condensed consolidated financial statements contain all adjustments, consisting of normal recurring accruals, which are necessary to present
fairly the consolidated financial position of the Company and the consolidated results of its operations and cash flows for all periods presented.





The company’s management has evaluated the period from July 1, 2009 through August 3, 2009, the date the financial statements herein were issued, for subsequent
events requiring recognition or disclosure in the financial statements. During this period, no material recognizable subsequent events were identified.





Recent Accounting Pronouncements




In June 2008, the Financial Accounting Standards Board (FASB) issued FASB Staff Position Emerging Issues Task Force No. 03-6-1,Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities (FSP EITF 03-6-1). FSP
EITF 03-6-1 addresses whether instruments granted in share-based payment transactions are participating securities prior to vesting, and therefore need to be included in the earnings allocation in computing earnings per share under the two-class method as described in SFAS No. 128, “Earnings per Share.” Under the guidance of FSP EITF 03-6-1, unvested share-based payment awards that contain non-forfeitable rights to dividends or dividend equivalents (whether paid or unpaid) are participating
securities and shall be included in the computation of earnings per share pursuant to the two-class method. The Company’s unvested restricted stock awards are considered “participating securities” because they contain non-forfeitable rights to dividends. FSP EITF 03-6-1 is effective for financial statements issued for fiscal years beginning after December 15, 2008, and all prior-period earnings per share data presented has been adjusted retrospectively (note 5).





(2)
Long Term Debt and Interest Expense





Long-term debt is as follows (amounts in thousands):


-9-





June 30,
2009


December 31,
2008Senior Notes

$
150,000


$
150,000Revolver


-



18,000Total long-term debt


150,000



168,000Less amounts classified as current


-



18,000Total long-term debt, less current maturities

$
150,000


$
150,000




Senior Notes




The $150.0 million of Senior Notes are due on June 1, 2012 (the Senior Notes).  The Senior Notes are unsecured and accrue interest at 9.375% per annum.  Interest payments on the Senior Notes are required semi-annually.  The Company may redeem the Senior Notes, in whole or in part, at any time on or after
June 1, 2009 at redemption prices ranging from 104.86% in 2009 to 100% in 2011.





The Senior Notes limit the Company’s ability, among other things, to pay cash dividends.  In addition, if a change of control occurs (as defined in the Indenture), each holder of the Senior Notes will have the right to require the Company to repurchase all or a part of the Senior Notes at a price equal to
101% of their principal amount, plus any accrued interest to the date of repurchase.





Senior Secured Credit Facilities





In 2007, the Company entered into a $35.0 million Revolving Credit Agreement (the Revolver) and a Term Credit Agreement (collectively the Facilities). The Term Credit Agreement consists of a term facility (the Term Facility) and a $60.0 million letter of credit facility (the Letter of Credit Facility).  The
Company repaid the outstanding balance of the Term Facility in October 2008 and used $5.2 million of the Company’s cash to secure letters of credit under the Letter of Credit Facility.  The $5.2 million of cash used to secure the letters of credit under the Letter of Credit Facility is included in other assets on the Company’s consolidated balance sheets as of June 30, 2009 and December 31, 2008.  The Letter of Credit Facility does not constitute a loan to the Company and accordingly
is not available for borrowing by the Company.  The Letter of Credit Facility supports the issuance of up to $60.0 million of letters of credit by the Company.





The following is a summary of significant terms of the Facilities, as amended, as of June 30, 2009.





Revolver

Letter of Credit FacilityMaturity

February 2012(c)

February 2013Interest/Usage Rate

Company’s option of Base Rate(a) plus 1.75% or LIBOR plus 2.75% per annum

10.0% effective January 1, 2009; and 12.5% effective April 1, 2009 to the Letter of Credit Facility’s maturity date.Maximum Availability

Lesser of $35.0 million or the borrowing base (b)

$60.0 millionPeriodic Principal Payments

None

Not applicable





(a)
Base rate is the higher of (1) the Federal Fund Rate plus 0.5%, and (2) the prime rate.(b)
The Revolver’s borrowing base is the sum of up to 85% of the eligible accounts receivable plus the lesser of (1) up to 60% of eligible inventory and (2) up to 85% of the net orderly liquidation value of eligible inventory; minus reserve from time to time set by administrative agent.(c)
The outstanding balances on the Revolver, if any, is classified as current on our balance sheet based on our intent to pay the balance within the next year.





The Revolver provides that the Company can use up to $10.0 million of the Revolver availability to issue letters of credit. The Revolver provides for a 2.75% fee on any outstanding letters of credit issued under the Revolver and a 0.75% fee on the unused portion of the Revolver. The Facilities require certain mandatory
prepayments from certain asset sales, incurrence of indebtedness and excess cash flow. The Facilities include financial covenants that require us to maintain a minimum Adjusted EBITDA and a maximum leverage ratio and limit capital expenditures, each as defined by the agreement. The Facilities are secured by substantially all of our assets.


-10-





Effective July 1, 2009, the Company is no longer required to maintain minimum liquidity as defined under its credit agreements of $10.0 million.  As a result, the Company has $35.0 million of borrowing capacity at June 30, 2009.  The Company was in compliance with all of the financial covenants under the
Facilities and Senior Notes as of June 30, 2009.





Interest Expense and Other





During the three and six months ended June 30, 2009 the Company paid $7.1 million and $7.6 million, respectively, in interest.  During the three and six months ended June 30, 2008 the Company paid $7.3 million and $8.7 million, respectively, in interest.





In connection with a mandatory tender and repayment of a portion of the Term Facility in 2008, the Company expensed approximately $1.1 million of unamortized financing charges on the Term Facility in the second quarter of 2008.  The $1.1 million write-off of the unamortized financing charges is included in
charges associated with repayment and amendment of debt in the Company’s condensed consolidated financials statements.


In connection with an amendment to the Term Facility and Letter of Credit Facility in 2008, the Company expensed $1.9 million of fees paid that were included in charges associated with repayment and amendment of debt in the Company’s condensed consolidated financial statements.





(3)
Equity




Preferred Stock and Shareholder Rights Agreement




The Company has authorized 10,000,000 shares of preferred stock, $1.00 par value per share, the rights and preferences of which are established by the Board of the Directors. The Company has reserved 500,000 of these shares as Series A Participating Cumulative Preferred Stock for issuance under a shareholder rights agreement
(the Rights Agreement).





On May 25, 2004, the Company’s shareholders approved the Rights Agreement and declared a dividend of one preferred share purchase right (Right) for each two shares of common stock outstanding.  Each Right entitles the registered holder to purchase from the Company one one-hundredth (1/100) of a share of our
Series A Participating Cumulative Preferred Stock, par value $1.00 per share, at a price of $200 per one one-hundredth of a Series A preferred share.  The Rights are not exercisable until a person or group of affiliated or associated persons (an Acquiring Person) has acquired or announced the intention to acquire 20% or more of the Company’s outstanding common stock.





In the event that the Company is acquired in a merger or other business combination transaction or 50% or more of the Company’s consolidated assets or earning power is sold after a person or group has become an Acquiring Person, each holder of a Right, other than the Rights beneficially owned by the Acquiring Person
(which will thereafter be void), will receive, upon the exercise of the Right, that number of shares of common stock of the acquiring company which at the time of such transaction will have a market value of two times the exercise price of the Right.  In the event that any person becomes an Acquiring Person, each Right holder, other than the Acquiring Person (whose Rights will become void), will have the right to receive upon exercise that number of shares of common stock having a market value of two times
the exercise price of the Right.





The rights will expire May 25, 2014, unless that expiration date is extended. The Board of Directors may redeem the Rights at a price of $0.001 per Right at any time prior to the time that a person or group becomes an Acquiring Person.







Equity Based Compensation




Under the 2004 Equity Incentive Plan (the Plan), participants may be granted stock options (qualified and nonqualified), stock appreciation rights (SARs), restricted stock, restricted stock units, and performance shares. The total number of shares that may be awarded under the Plan is 2,400,000, and no more than 1,000,000
of the shares reserved under the Plan may be granted in the form of incentive stock options.  The Company currently has the following types of equity awards outstanding under the Plan.





Restricted Stock Awards





Pursuant to the Plan certain directors and employees have been awarded restricted common stock with such shares vesting over two to five years. The related expense is amortized over the vesting period.





-11-


Stock Option Awards





Pursuant to the Plan certain directors and employees have been awarded options to purchase common stock with such options vesting ratably over three to five years. The Company’s stock options have been issued at exercise prices equal to or greater than the fair value of the Company’s stock at the date of
grant.





Shares awarded or subject to purchase under the Plan that are not delivered or purchased, or revert to the Company as a result of forfeiture or termination, expiration or cancellation of an award or that are used to exercise an award or for tax withholding, will be again available for issuance under the Plan. At June
30, 2009, there were 836,730 shares available under the Plan for future awards.





The following table highlights the expense related to share-based payment for the periods ended June 30


(in thousands):







Three months ended


Six months endedJune 30,


June 30,2009


2008


2009


2008Restricted stock

$
1,483


$
1,056


$
2,918



1,961Stock options


89



80



168



159Stock based compensation

$
1,572


$
1,136


$
3,086



2,120




The fair value of the restricted stock outstanding and issued is equal to the value of shares at the grant date. At this time, the Company does not expect any of its restricted shares or options to be forfeited before vesting. The fair value of stock options was estimated using the Black-Scholes option pricing model.
The Company used a risk free rate of 2.6% and a volatility of 90% for options issued during 2009. The Company uses historical experience to estimate its volatility. The Company has assumed no dividends would be issued in valuing its options.





The following is a summary of restricted stock and stock option awards for the six months ended June 30, 2009:







Restricted Stock

Stock OptionsWeighted




WeightedAverage




AverageNumber of


Fair Value

Number of


ExerciseShares


at Issue

Shares


PriceDecember 31, 2008


702,049


$
22.78



261,000


$
16.51Granted


232,311



13.87



20,000



13.87Exercised/Vested


(192,308
)


14.33



(5,000
)


15.00Canceled


-



-



-



-June 30, 2009


742,052



22.18



276,000



16.34






The following table summarizes additional information about the stock options outstanding at June 30, 2009.






Range of
Exercise Price

Shares

Weighted
Average
Exercise
Price

Weighted
Average
Remaining
Contractual
Life (Years)

Aggregate
Intrinsic Value (1)
(in 000's)Outstanding at June 30, 2009

$10.80-$36.30
276,000

$16.34

6.0

$         689Exercisable at June 30, 2009

$10.80-$36.30
236,004

$15.47

5.4

$         660Vested and expected to vest at June 30, 2009



276,000

$16.34

6.0

$         689(1) The difference between a stock award's exercise price and the underlying stock's market price at June 30, 2009.No value is assigned to stock awards whose option price exceeds the  stock's market price at June 30, 2009.




-12-




The following table summarizes the Company’s total unrecognized compensation cost related to stock based compensation as of June 30, 2009.






Weighted AverageRemaining PeriodUnearned


Of ExpenseCompensation


Recognition(in 000's)


(in years)Stock Options

$
557



2.2Restricted Stock


12,558



3.1Total

$
13,115






(4)
Commitments and Contingencies




The Company has established irrevocable letters of credit totaling $59.5 million as of June 30, 2009 to guarantee performance under certain contractual arrangements.  The letters of credit were issued under the Company’s Letter of Credit Facility (see note 2).




The Company is involved in various claims and legal actions arising in the ordinary course of business. In the opinion of management, the ultimate disposition of these matters will not have a material adverse effect on the Company’s condensed consolidated financial position, results of operations or liquidity.




(5)
Earnings (loss) Per Share




Basic earnings (loss) per share is computed by dividing net income (loss) available to common shareholders by the weighted average number of common shares outstanding during the period. Diluted earnings per share is calculated based on the weighted average number of common shares outstanding during the period and, when
dilutive, potential common shares from the exercise of stock options and restricted common stock subject to continuing vesting requirements, pursuant to the treasury stock method.


-13-





The following table provides a reconciliation of the number of shares used to calculate basic and diluted earnings (loss) per share (in thousands):




Three Months Ended


Six Months EndedJune 30,


June 30,


June 30,


June 30,2009


2008


2009


2008Basic earnings per common share:Net income (loss)

$
16,178



(24,006
)

$
44,349



(40,694
)Income allocated to participating securities


(495
)


-



(1,247
)


-Net income (loss) available to common shareholders

$
15,683



(24,006
)

$
43,102



(40,694
)Weighted average number of common andcommon equivalent shares outstanding:Basic number of common shares outstanding


26,734



24,698



26,713



23,095Dilutive effect of unvested restricted stock (participatingsecurities)


843



-



773



-Dilutive effect of stock options


54



-



39



-Diluted number of common shares andcommon equivalent shares outstanding


27,631



24,698



27,525



23,095Basic earnings (loss) per common share

$
0.59



(0.97
)

$
1.61



(1.76
)Diluted net income per common share:Net income (loss)

$
16,178



(24,006
)

$
44,349



(40,694
)Income allocated to participating securities


-



-



-



-Net income (loss) available to potential  commonshareholders

$
16,178



(24,006
)

$
44,349



(40,694
)Diluted net earnings (loss) per share

$
0.59



(0.97
)

$
1.61



(1.76
)




For periods in which there was a loss, the Company has excluded from its diluted loss per share calculation options to purchase shares with underlying exercise prices less than the average market prices and the unvested portion of time vested restricted shares, as inclusion of these securities would have reduced the
net loss per share.  The excluded instruments would have increased the diluted weighted average number of common and common equivalent shares outstanding by approximately 0.8 million for the three and six months June 30, 2008.  In addition, in periods of net losses, the Company has not allocated any portion of such losses to participating securities holders for its basic loss per share calculation as such participating securities holders are not contractually obligated to fund such losses.




-14-





(6)
Pension Expense




In 2007, the Company froze pension plan benefit accruals for all employees covered under its qualified non-contributory defined benefit pension plan.  The components of net periodic benefit cost are as follows (amounts in thousands):





Three Months EndedJune 30, 2009


June 30, 2008Interest cost

$
915



911Expected return on plan assets


(775
)


(1,089
)Amortization of actuarial amount


402



—Net periodic (benefit) cost

$
542



(178
)Six Months EndedJune 30, 2009


June 30, 2008Interest cost

$
1,830



1,822Expected return on plan assets


(1,549
)


(2,178
)Amortization of actuarial amount


803



—Net periodic (benefit) cost

$
1,084



(356
)













(7)
Pneumoconiosis (Black Lung) Benefits







The expense for black lung benefits consists of the following (amounts in thousands):





Three Months EndedJune 30, 2009


June 30, 2008Service Cost

$
306



120Interest cost


428



491Amortization of actuarial amount


—



(141
)Total expense

$
734



470Six Months EndedJune 30, 2009


June 30, 2008Service Cost

$
612



240Interest cost


856



982Amortization of actuarial amount


—



(281
)Total expense

$
1,468



941




-15-





(8)
Financial Instruments





The estimated fair value of financial instruments has been determined by the Company using available market information. As of June 30, 2009 and December 31, 2008, except for long-term debt obligations, the carrying amounts of all financial instruments approximate their fair values due to their short maturities.





The Company believes that the fair value of its Senior Notes was $135.0 million and $112.1 million at June 30, 2009 and December 31, 2008, respectively, based on available market information at that date.  The Company believes that the carrying amount of the Revolver approximated the fair value at December
31, 2008, due to the variable interest rate and recent amendment to that facility.





(9)
Segment Information




The Company has two segments based on the coal basins in which the Company operates. These basins are located in Central Appalachia (CAPP) and in the Midwest (Midwest). The Company’s CAPP operations are located in eastern Kentucky and the Company’s Midwest operations are located in southern Indiana. Coal
quality, coal seam height, transportation methods and regulatory issues are generally consistent within a basin. Accordingly, market and contract pricing have been developed by coal basin. The Company manages its coal sales by coal basin, not by individual mine complex. Mine operations are evaluated based on their per-ton operating costs. Operating segment results are shown below (in thousands).





Three Months Ended


Six Months EndedJune 30,


June 30,2009


2008


2009


2008RevenuesCAPP

$
144,853


$
114,218



312,488



229,697Midwest


26,796



23,485



51,282



46,194Corporate


-



-



-



-Total

$
171,649


$
137,703



363,770



275,891Depreciation, depletion and amortizationCAPP

$
12,651


$
13,848



23,808



27,387Midwest


3,260



3,690



6,561



7,407Corporate


11



14



26



48Total

$
15,922


$
17,552



30,395



34,842Total operating income (loss)CAPP

$
24,873


$
(8,145
)


66,539



(13,279
)Midwest


(901
)


(4,288
)


(1,485
)


(7,398
)Corporate


(6,525
)


(5,015
)


(11,953
)


(8,937
)Total

$
17,447


$
(17,448
)


53,101



(29,614
)Net earnings (loss) (1)CAPP

$
24,873


$
(8,145
)


66,539



(13,279
)Midwest


(901
)


(4,288
)


(1,485
)


(7,398
)Corporate


(7,794
)


(11,573
)


(20,705
)


(20,017
)Total

$
16,178


$
(24,006
)


44,349



(40,694
)




(1)  Income and expense items that are not included in income (loss) from operations are not allocated to the segments.


-16-








June 30,

December 31,2009

2008Total AssetsCAPP

$
389,683

336,631Midwest


92,020

89,792Corporate


9,954

37,123Total

$
491,657

463,546GoodwillCAPP

$
-

-Midwest


26,492

26,492Corporate


-

-Total

$
26,492

26,492














-17-







ITEM2.  MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS








The following discussion and analysis is provided to increase the understanding of, and should be read in conjunction with, the Condensed Consolidated Financial Statements and accompanying notes contained herein and the Company’s annual report on Form 10-K for the year ended December 31, 2008.





Overview





We mine, process and sell bituminous, steam- and industrial-grade coal through six operating subsidiaries (“mining complexes”) located throughout eastern Kentucky and in southern Indiana. We have two reportable business segments based on the coal basins in which we operate (Central Appalachia (CAPP) and the
Midwest (Midwest)). We derived 92% of our total revenues (contract and spot) in the six months ended June 30, 2009 from coals sales to electric utility customers and the remaining 8% from coal sales to industrial and other companies.





CAPP Segment





In Central Appalachia, our coal is primarily sold to customers in the southern portion of the South Atlantic region of the United States. The South Atlantic Region includes the states of Florida, Georgia, South Carolina, North Carolina, West Virginia, Virginia, Maryland and Delaware. We have been providing coal to customers
in the South Atlantic region since our formation in 1988. For the six months ended June 30, 2009, CAPP produced 3.8 million tons of coal (including contract coal and purchased coal). Of the CAPP tons produced, 82% came from Company operated underground mines. For the six months ended June 30, 2009, we shipped 3.4 million tons of coal and generated coal sale revenues of $312.5 million from our CAPP segment. For the six months ended June 30, 2009, Georgia Power Company and South Carolina Public Service Authority
were our largest customers, representing approximately 37% and 38% of our total revenues, respectively.  No other CAPP customer accounted for more than 10% of our total revenues.





Midwest Segment





In the Midwest, the majority of our coal is sold in the East North Central Region, which includes the states of Illinois, Indiana, Ohio, Michigan and Wisconsin. For the six months ended June 30, 2009, our Midwest mines produced 1.6 million tons of coal. Of the Midwest tons produced, 83% came from Company operated surface
mines. For the six months ended June 30, 2009, we shipped 1.6 million tons of coal and generated coal sale revenues of $51.3 million from our Midwest segment. For the six months ended June 30, 2009, our Midwest segment’s largest customer represented approximately 6% of our total revenues.





Results of Operations





Three Months Ended June 30, 2009 Compared with the Three Months Ended June 30, 2008





The following tables show selected operating results for the three months ended June 30, 2009 compared to the three months ended June 30, 2008 (in thousands except per ton amounts).


-18-




Three Months Ended June 302009


2008


ChangeTotal


Per Ton


Total


Per Ton


TotalVolume shipped (tons)


2,407






2,892






-17%Revenues

$
171,649



71.31


$
137,703



47.62



25%Cost of coal sold


127,721



53.06



128,867



44.56



-1%Depreciation, depletion and amortization


15,922



6.61



17,552



6.07



-9%Gross profit (loss)


28,006



11.64



(8,716
)


(3.01
)


N/ASelling, general and administrative


10,559



4.39



8,732



3.02



21%


Volume and Revenues by Segment






Three Months Ended June 30,2009

2008CAPP

Midwest

CAPP

MidwestVolume (tons shipped)


1,601

806

2,161

731Coal sales revenue

$
144,853

26,796

114,218

23,485Average sales price per ton
$
90.48

33.25

52.85

32.13


Coal sales revenue for the three months ended June 30, increased from $137.7 million in 2008 to $171.6 million in 2009. This increase was due to an increase in the average sales price per ton in the CAPP region and an increase in tons shipped in the Midwest region.  This increase was partially offset by a decrease
in tons shipped in the CAPP region.





For the three months ended June 30, 2009, the CAPP region sold approximately 1.5 million tons of coal under long-term contracts (96% of total CAPP sales volume) at an average selling price of $90.69 per ton. For the three months ended June 30, 2008, the CAPP region sold approximately 1.2 million tons of coal under long-term
contracts (55% of total CAPP sales volume) at an average selling price of $50.97 per ton.  For the three months ended June 30, 2009, the CAPP region sold 0.1 million tons of coal (4% of total CAPP sales volume) under short term contracts (includes spot sales) at an average selling price of $84.54 per ton. For the three months ended June 30, 2008, the CAPP region sold 967,000 tons of coal (45% of total CAPP sales volume) under short term contracts (includes spot sales) at an average selling price of
$55.20 per ton.





The Midwest’s region sales of coal were under long term contracts for both the 2009 and 2008 periods.  For the three months ended June 30, 2009, the Midwest region sold 0.8 million tons at an average sales price of $33.25.  For the three months ended June 30, 2008, the Midwest region sold 0.7
million tons at an average sales price of $32.13.





Operating Costs by Segment




Three Months Ended June 30,2009


2008CAPP


Midwest


Corporate


CAPP


Midwest


CorporateCost of coal sold

$
103,952



23,769



-



105,252



23,615



-Per ton


64.93



29.49



-



48.71



32.31



-Depreciation, depletion and amortization


12,651



3,260



11



13,848



3,690



14Per ton


7.90



4.04



-



6.41



5.05



-


-19-




Cost of Coal Sold




For the three months ended June 30, the cost of coal sold, excluding depreciation, depletion and amortization, decreased from $128.9 million in 2008 to $127.7 million in 2009.  Our cost per ton of coal sold in the CAPP region increased from $48.71 per ton in the 2008 period to $64.93 per ton in the 2009 period.  This
$16.22 increase in cost per ton of coal sold was primarily the result of lower productivity due to increased federal and state regulatory scrutiny which caused an increase in labor costs as compared to prior year, a decrease in tons produced in response to market conditions, an increase in machine parts and repairs costs, and the impact of increased average sales prices on our sales related costs (primarily royalties and severance taxes). The major components of this increase include an increase in the Company’s
labor and benefit costs of $5.55 per ton, sales related costs of $4.34 per ton and variable costs of $2.39 per ton.    For more detail regarding the increased regulatory activity see “Part II – Item 1A – Risk Factors – Underground mining is subject to increased regulation, and may require us to incur additional cost.”





Our cost per ton of coal sold in the Midwest decreased $2.82 per ton to $29.49 per ton in the 2009 period.  The decrease in cost per ton of coal sold was due to a $3.52 decrease in variable costs.  The decrease in the variable costs was primarily due to a decrease in diesel and explosives costs.





Depreciation, depletion and amortization




For the three months ended June 30, depreciation, depletion and amortization decreased from $17.6 million in 2008 to $15.9 million in 2009.  In the CAPP region, depreciation, depletion and amortization decreased $1.2 million to $12.7 million or $7.90 per ton.  In the Midwest, depreciation, depletion
and amortization decreased $0.4 million to $3.3 million or $4.04 per ton.




Selling, general and administrative




Selling, general and administrative expenses increased from $8.7 million for the three months ended June 30, 2008 to $10.6 million for the three months ended June 30, 2009.  The increase was primarily due to higher letter of credit fees and an increase in certain salary and benefit amounts, including stock compensation.  The
increase in the letter of credit fees is due to an increase in the usage fee under our Letter of Credit Facility.




Income Taxes





Our effective tax rate for the three months ended June 30, 2009 and 2008 was (17.7%) and 0.0%, respectively.  Our effective income tax rate is impacted primarily by changes in the amount of the valuation allowance recorded and the effects of percentage depletion.   For 2009, we expect that a portion
of our available net operating loss carryforward will be utilized to reduce current tax expense, and therefore the previously established valuation allowance will be reduced.  Our three months ended June 30, 2009 results include a tax benefit due to a change in our previous quarterly estimate of our 2009 taxable income and the net operating loss carryfoward available for 2009.  The criteria for recording a valuation allowance are described in “Critical Accounting Estimates – Income
Taxes.”  As of June 30, 2009, we had a $47.8 million valuation allowance against gross deferred tax assets.  For 2008, our effective tax rate was impacted by the conclusion that a benefit from the expected net operating loss was not more likely than not to be realized.  Percentage depletion is an income tax deduction that is limited to a percentage of taxable income from each of our mining properties.  Because percentage depletion can be deducted in excess of
cost basis in the properties, it creates a permanent difference and directly impacts the effective tax rate.  Fluctuations in the effective tax rate may occur due to the varying levels of profitability (and thus, taxable income and percentage depletion) at each of our mine locations.





Six Months Ended June 30, 2009 Compared with the Six Months Ended June 30, 2008





The following tables show selected operating results for the six months ended June 30, 2009 compared to the six months ended June 30, 2008 (in thousands except per ton amounts).


-20-


Six Months Ended June 302009


2008


ChangeTotal


Per Ton


Total


Per Ton


TotalVolume shipped (tons)


5,038






5,814






-13%Revenues

$
363,770



72.21


$
275,891



47.45



32%Cost of coal sold


260,428



51.69



254,597



43.79



2%Depreciation, depletion and amortization


30,395



6.03



34,842



5.99



-13%Gross profit (loss)


72,947



14.48



(13,548
)


(2.33
)


N/ASelling, general and administrative


19,846



3.94



16,066



2.76



24%
 Volume and Revenues by Segment




Six Months Ended March 31,2009

2008CAPP

Midwest

CAPP

MidwestVolume (tons shipped)


3,445

1,593

4,358

1,456Coal sales revenue

$
312,488

51,282

229,697

46,194Average sales price per ton

$
90.71

32.19

52.71

31.73





Coal sales revenue for the six months ended June 30, increased from $275.9 million in 2008 to $363.8 million in 2009. This increase was due to an increase in the average sales price per ton in the CAPP region and an increase in tons shipped in the Midwest region.  This increase was partially offset by a decrease
in tons shipped in the CAPP region.





For the six months ended June 30, 2009, the CAPP region sold approximately 3.1 million tons of coal under long-term contracts (92% of total CAPP sales volume) at an average selling price of $91.18 per ton. For the six months ended June 30, 2008, the CAPP region sold approximately 2.2 million tons of coal under long-term
contracts (49% of total CAPP sales volume) at an average selling price of $49.93 per ton.  For the six months ended June 30, 2009, the CAPP region sold 0.3 million tons of coal (8% of total CAPP sales volume) under short term contracts (includes spot sales) at an average selling price of $85.49 per ton. For the six months ended June 30, 2008, the CAPP region sold 2.2 million tons of coal (51% of total CAPP sales volume) under short term contracts (includes spot sales) at an average selling price of
$55.43 per ton.





The Midwest’s region sales of coal were under long term contracts for both the 2009 and 2008 periods.  For the six months ended June 30, 2009, the Midwest region sold 1.6 million tons at an average sales price of $32.19.  For the six months ended June 30, 2008, the Midwest region sold 1.5 million
tons at an average sales price of $31.73.





Operating Costs by Segment




Six Months Ended March 31,2009


2008CAPP


Midwest


Corporate


CAPP


Midwest


CorporateCost of coal sold

$
215,436



44,992



-



209,362



45,235



-Per ton


62.54



28.24



-



48.04



31.07



-Depreciation, depletion and amortization


23,808



6,561



26



27,387



7,407



48Per ton


6.91



4.12



-



6.28



5.09



-


-21-




Cost of Coal Sold




For the six months ended June 30, the cost of coal sold, excluding depreciation, depletion and amortization, increased from $254.6 million in 2008 to $260.4 million in 2009.  Our cost per ton of coal sold in the CAPP region increased from $48.04 per ton in the 2008 period to $62.54 per ton in the 2009 period.  This
$14.50 increase in cost per ton of coal sold was primarily the result of lower productivity due to increased federal and state regulatory scrutiny which caused an increase in labor costs as compared to prior year, a decrease in tons produced in response to market conditions, an increase in machine parts and repairs costs, and the impact of increased average sales prices on our sales related costs (primarily royalties and severance taxes). The major components of this increase include an increase in the Company’s
sales related costs of $4.21 per ton, labor and benefit costs of $4.09 per ton and variable costs of $2.64 per ton.    For more detail regarding the increased regulatory activity see “Part II – Item 1A – Risk Factors – Underground mining is subject to increased regulation, and may require us to incur additional cost.”





Our cost per ton of coal sold in the Midwest decreased $2.83 per ton to $28.24 per ton in the 2009 period.  The decrease in cost per ton of coal sold was due to a $3.15 decrease in variable costs.  The decrease in the variable costs was primarily due to a decrease in diesel and explosives costs.





Depreciation, depletion and amortization




For the six months ended June 30, depreciation, depletion and amortization decreased from $34.8 million in 2008 to $30.4 million in 2009.  In the CAPP region, depreciation, depletion and amortization decreased $3.6 million to $23.8 million or $6.91 per ton.  In the Midwest, depreciation, depletion
and amortization decreased $0.8 million to $6.6 million or $4.12 per ton.




Selling, general and administrative




Selling, general and administrative expenses increased from $16.1 million for the six months ended June 30, 2008 to $19.8 million for the six months ended June 30, 2009.  The increase was primarily due to higher letter of credit fees, and an increase in certain salary and benefit amounts, including stock compensation.
The increase in the letter of credit fees is due to an increase in the usage fee under our Letter of Credit Facility.




Income Taxes





Our effective tax rate for the six months ended June 30, 2009 and 2008 was 2.4% and 0.0%, respectively.  Our effective income tax rate is impacted primarily by changes in the amount of the valuation allowance recorded and the effects of percentage depletion.    For 2009, we expect that a
portion of our available net operating loss carryforward will be utilized to reduce current tax expense, and therefore the previously established valuation allowance will be reduced.  The criteria for recording a valuation allowance are described in “Critical Accounting Estimates – Income Taxes.”  For 2008, our effective tax rate was impacted by the conclusion that a benefit from the expected net operating loss was not more likely than not to be realized.  As
of June 30, 2009, we had a $47.8 million valuation allowance against gross deferred tax assets.  Percentage depletion is an income tax deduction that is limited to a percentage of taxable income from each of our mining properties.  Because percentage depletion can be deducted in excess of cost basis in the properties, it creates a permanent difference and directly impacts the effective tax rate.  Fluctuations in the effective tax rate may occur due to the varying levels of profitability
(and thus, taxable income and percentage depletion) at each of our mine locations.





Liquidity and Capital Resources





The following chart reflects the components of our debt as of June 30, 2009 and December 31, 2008:





June 30,
2009


December 31,
2008Senior Notes

$
150,000


$
150,000Revolver


-



18,000Total long-term debt


150,000



168,000Less amounts classified as current


-



18,000Total long-term debt, less current maturities

$
150,000


$
150,000





The Senior Notes are due on June 1, 2012.  The Senior Notes are unsecured and accrue interest at 9.375% per annum. Interest payments on the Senior Notes are required semi-annually. We may redeem the Senior Notes, in whole or in part, at any time on or after June 1, 2009 at redemption prices from 104.86% in 2009
to 100% in 2011. The Senior Notes limit our ability, among other things, to pay cash dividends. In addition, if a change of control occurs (as defined in the Indenture), each holder of the Senior Notes will have the right to require us to repurchase all or a part of the Senior Notes at a price equal to 101% of their principal amount, plus any accrued interest to the date of repurchase.





-22-


In 2007, we entered into a $35.0 million Revolving Credit Agreement (the Revolver) and a Term Credit Agreement (collectively the Facilities). The Term Credit Agreement consists of a term facility (the Term Facility) and a $60.0 million letter of credit facility (the Letter of Credit Facility).  We repaid the
outstanding balance of the Term Facility in October 2008 and used $5.2 million of our cash to secure letters of credit under the Letter of Credit Facility.  The $5.2 million of cash used to secure the letters of credit under the Letter of Credit Facility is included in other assets on our consolidated balance sheets as of June 30, 2009 and December 31, 2008.   The Letter of Credit Facility does not constitute a loan and accordingly is not available for borrowing.  The Letter of Credit
Facility supports the issuance of up to $60.0 million of letters of credit.





The following is a summary of significant terms of the outstanding portion of our Facilities, as amended, as of June 30, 2009.





Revolver

Letter of Credit FacilityMaturity

February 2012(c)

February 2013Interest/Usage Rate

Our option of Base Rate(a) plus 1.75% or LIBOR plus 2.75% per annum

10.0% effective January 1, 2009; and 12.5% effective April 1, 2009 to the Letter of Credit Facility’s maturity date.Maximum Availability

Lesser of $35.0 million or the borrowing base (b)

$60.0 millionPeriodic Principal Payments

None

Not applicable





(a)
Base rate is the higher of (1) the Federal Fund Rate plus 0.5%, and (2) the prime rate.(b)
The Revolver’s borrowing base is the sum of up to 85% of the eligible accounts receivable plus the lesser of (1) up to 60% of eligible inventory and (2) up to 85% of the net orderly liquidation value of eligible inventory; minus reserve from time to time set by administrative agent.(c)
The outstanding balances on the Revolver, if any, is classified as current on our balance sheet based on our intent to pay the balance within the next year.





The Revolver provides that we can use up to $10.0 million of the Revolver availability to issue letters of credit. The Revolver provides for a 2.75% fee on any outstanding letters of credit issued under the Revolver and a 0.75% fee on the unused portion of the Revolver. The Facilities require certain mandatory prepayments
from certain asset sales, incurrence of indebtedness and excess cash flow. The Facilities include financial covenants that require us to maintain a minimum Adjusted EBITDA and a maximum leverage ratio and limit capital expenditures, each as defined by the agreement. The Facilities are secured by substantially all of our assets.





Effective July 1, 2009, we are no longer required to maintain minimum liquidity as defined under our credit agreements of $10.0 million.  As a result, we had $35.0 million of borrowing capacity at June 30, 2009.   At June 30, 2009, we also had $1.9 million of cash and cash equivalents.





We were in compliance with all of the financial covenants under the Facilities and Senior Notes as of June 30, 2009.  We cannot assure you that we will remain in compliance in subsequent periods.  If necessary, we will consider seeking a waiver or other alternatives to remain in compliance with
the covenants.  For more detail regarding the covenants under the Facilities, see Part II - Item 1A - Risk Factors - “We may be unable to comply with restrictions imposed by the terms of our indebtedness, which could result in a default under these instruments.”





Our primary source of cash is expected to be sales of coal to our utility and industrial customers. The price of coal received can change dramatically based on market factors and will directly affect this source of cash.  Our primary uses of cash include the payment of ordinary mining expenses to mine coal,
capital expenditures and benefit payments. Ordinary mining expenses are driven by the cost of supplies, including steel prices and diesel fuel. Benefit payments include payments for workers’ compensation and black lung benefits paid over the lives of our employees as the claims are submitted. We are required to pay these when due, and are not required to set aside cash for these payments. We have posted surety bonds with state regulatory departments to guarantee these payments and have issued letters of
credit to secure these bonds. We believe that our Letter of Credit Facility and Revolver provide us with the ability to meet the necessary bonding requirements.





Our secondary source of cash is the Revolver.  We believe that cash generated from operations, borrowings under our credit facilities and future debt and equity offerings, if any, will be sufficient to meet working capital requirements, anticipated capital expenditures and scheduled debt payments throughout 2009 and for the next several years. Nevertheless,
our ability to satisfy our working capital requirements and debt service obligations, or fund planned capital expenditures, will substantially depend upon our future operating performance (which will be affected by prevailing economic conditions in the coal industry), debt covenants, and financial, business and other factors, some of which are beyond our control.


-23-


In the event that the sources of cash described above are not sufficient to meet our future cash requirements, we will need to reduce certain planned expenditures, seek additional financing, or both. We may seek to raise funds through additional debt financing or the issuance of additional equity securities. If such
actions are not sufficient, we may need to limit our growth, sell assets or reduce or curtail some of our operations to levels consistent with the constraints imposed by our available cash flow, or any combination of these options. Our ability to seek additional debt or equity financing may be limited by our existing and any future financing arrangements, economic and financial conditions, or all three. In particular, our Senior Notes and the Facilities restrict our ability to incur additional indebtedness. We
cannot provide assurance that any reductions in our planned expenditures or in our expansion would be sufficient to cover shortfalls in available cash or that additional debt or equity financing would be available on terms acceptable to us, if at all.





Net cash from operating activities reflects net income or loss adjusted for non-cash charges and changes in net working capital (including non-current operating assets and liabilities). Net cash provided by operating activities was $46.8 million for the six months ended June 30, 2009 and net cash used by operating activities
was $1.7 million for the six months ended June 30, 2008.  We had net income of $44.3 million in the six months ended June 30, 2009 as compared to a net loss of $40.7 million in the six months ended June 30, 2008.  In reconciling our net income (loss) to cash provided by operating activities, $35.7 million was added for non cash charges during 2009, as compared to a $40.0 million during 2008.  During 2009, our net income, as adjusted for non cash charges, was reduced by $33.2
million as a result of changes in cash from our operating assets and liabilities.  The change in our operating assets and liabilities for 2009 includes a $9.7 million increase in accounts receivable and a $22.3 million increase in inventory.  During 2008, our net loss, as adjusted for non cash charges, was offset by a $1.0 million decrease in cash from our operating assets and liabilities.





Net cash used in investing activities increased by $7.9 million to $30.3 million for the six months ended June 30, 2009 as compared to the same period in 2008.  Capital expenditures primarily consisted of new and replacement mine equipment and various projects to improve the production and efficiency of our
mining operations.





Net cash used by financing activities was $17.9 million for the six months ended June 30, 2009 and consisted primarily of net repayments on the Revolver.  Net cash provided by financing activities was $28.2 million for the six months ended June 30, 2008. During the six months ended June 30, 2008, our primary
financing activities were the receipt of $50.0 million of net proceeds from the issuance of our common stock and the repayment $21.8 million under our Term Loan.




Reserves




Marshall Miller & Associates, Inc. (MM&A) prepared a detailed study of our CAPP reserves as of March 31, 2004 based on all of our geologic information, including our updated drilling and mining data. MM&A completed their report on our CAPP reserves in June 2004.  For the Triad properties, MM&A
also prepared a detailed study of Triad’s reserves as of February 1, 2005 for the reserves obtained in the acquisition of Triad and as of April 11, 2006 for certain additional reserves acquired in the second quarter of 2006.  The MM&A studies were planned and performed to obtain reasonable assurance of the subject demonstrated reserves.  In connection with the studies, MM&A prepared reserve maps and had certified professional geologists develop estimates based on data supplied by
us and Triad using standards accepted by government and industry.  We have used MM&A’s March 31, 2004 study as the basis for our current internal estimate of our Central Appalachia reserves and MM&A’s February 1, 2005 and April 11, 2006 studies as the basis for our current internal estimate of our Midwest reserves.





Reserves for these purposes are defined by SEC Industry Guide 7 as that part of a mineral deposit which could be economically and legally extracted or produced at the time of the reserve determination.  The reserve estimates were prepared using industry-standard methodology to provide reasonable assurance that
the reserves are recoverable, considering technical, economic and legal limitations.  Although MM&A has reviewed our reserves and found them to be reasonable (notwithstanding unforeseen geological, market, labor or regulatory issues that may affect the operations), MM&A’s engagement did not include performing an economic feasibility study for our reserves.  In accordance with standard industry practice, we have performed our own economic feasibility analysis for our reserves.  It
is not generally considered to be practical, however, nor is it standard industry practice, to perform a feasibility study for a company’s entire reserve portfolio.  In addition, MM&A did not independently verify our control of our properties, and has relied solely on property information supplied by us.  Reserve acreage, average seam thickness, average seam density and average mine and wash recovery percentages were verified by MM&A to prepare a reserve tonnage estimate for each
reserve.  There are numerous uncertainties inherent in estimating quantities and values of economically recoverable coal reserves as discussed in “Critical Accounting Estimates – Coal Reserves”.





Based on the MM&A reserve studies and the foregoing assumptions and qualifications, and after giving effect to our operations from the respective dates of the studies through June 30, 2009, we estimate that, as of June 30, 2009, we controlled approximately 231.4 million tons of proven and probable coal reserves in
the CAPP region and 41.4 millions tons in the Midwest region.  The following table provides additional information regarding changes to our reserves since December 31, 2008 (in millions of tons):


-24-








CAPP


Midwest


TotalProven and Probable Reserves, as of December 31, 2008 (1)


235.1



42.0



277.1Coal Extracted


(3.7
)


(1.6
)


(5.3
)Acquisitions (2)


0.3



0.9



1.2Adjustments (3)


-



0.1



0.1Divesture (4)


(0.3
)


-



(0.3
)Proven and Probable Reserves, as of June 30, 2009 (1)


231.4



41.4



272.8





1) Calculated in the same manner, and based on the same assumptions and qualifications, as used in the MM&A studies described above, but these estimates have not been reviewed by MM&A.  Proven reserves have the highest degree of geologic assurance and are reserves for which (a) quantity is computed from
dimensions revealed in outcrops, trenches, workings, or drill holes; grade and/or quality are computed from the results of detailed sampling and (b) the sites for inspections, sampling and measurement are spaced so closely and the geologic character is so well defined that size, shape, depth and mineral content of reserves are well-established.  Probable reserves have a moderate degree of geologic assurance and are reserves for which quantity and grade and/or quality are computed from information similar
to that used for proven reserves, but the sites for inspection, sampling and measurement are farther apart or are otherwise less adequately spaced.  The degree of assurance, although lower than that for proven reserves, is high enough to assume continuity between points of observation.  This reserve information reflects recoverable tonnage on an as-received basis with 5.5% moisture.





(2) Represents estimated reserves on leases entered into or properties acquired during the relevant period.  We calculated the reserves in the same manner, and based on the same assumptions and qualifications, as used in the MM&A studies described above, but these estimates have not been reviewed by MM&A.





(3) Represents changes in reserves due to additional information obtained from exploration activities, production activities or discovery of new geologic information. We calculated the adjustments to the reserves in the same manner, and based on the same assumptions and qualifications, as used in the MM&A studies
described above, but these estimates have not been reviewed by MM&A.





(4) Represents changes in reserves due to expired leases.





Key Performance Indicators





We manage our business through several key performance metrics that provide a summary of information in the areas of sales, operations, and general and administrative costs.





In the sales area, our long-term metrics are the volume-weighted average remaining term of our contracts and our open contract position for the next several years. During periods of high prices, we may seek to lengthen the average remaining term of our contracts and reduce the open tonnage for future periods. In the short-term,
we closely monitor the Average Selling Price per Ton (ASP), and the mix between our spot sales and contract sales.





In the operations area, we monitor the volume of coal that is produced by each of our principal sources, including company mines, contract mines, and purchased coal sources. For our company mines, we focus on both operating costs and operating productivity. We closely monitor the cost per ton of our mines against our
budgeted costs and against our other mines.





EBITDA and Adjusted EBITDA are also measures used by management to measure operating performance. We define EBITDA as net income (loss) plus interest expense (net), income tax expense (benefit) and depreciation, depletion and amortization. We regularly use EBITDA to evaluate our performance as compared to other companies
in our industry that have different financing and capital structures and/or tax rates. In addition, we use EBITDA in evaluating acquisition targets. EBITDA is not a recognized term under US GAAP and is not an alternative to net income, operating income or any other performance measures derived in accordance with US GAAP or an alternative to cash flow from operating activities as a measure of operating liquidity.  Adjusted EBITDA is used in calculating compliance with our debt covenants and adjusts EBITDA
for certain items as defined in our debt agreements, including stock compensation and certain bank fees.  See “Other Supplemental Information  —  Reconciliation of Non-US GAAP Measures.”


-25-





In the selling, general and administrative area, we closely monitor the gross dollars spent per mine operation and in support functions. We also regularly measure our performance against our internally-prepared budgets.





Trends In Our Business





Near-term, the global economic slowdown has lowered demand for coal which has resulted in a decline in spot coal prices.  The price of spot coal has also been impacted by a decrease in the price of competing fuel sources including oil and natural gas.  Recently, the coal industry has announced cutbacks
in supply in response to decrease in demand for coal.  Due to the uncertainties in the global market place, we are unable to forecast the price or demand for coal over the next few years.  Long-term, we believe that the demand for coal worldwide will continue to be strong as supply challenges will continue in the regions that we mine coal.  We also believe that in the United States coal will continue to be one of the most economical energy sources.   A number of factors
beyond our control impact coal prices, including:





·
the supply of domestic and foreign coal;


·
the demand for electricity;


·
the demand for steel and the continued financial viability of the domestic and foreign steel industries;


·
the cost of transporting coal to the customer;


·
domestic and foreign governmental regulations and taxes;


·
world economic conditions


·
air emission standards for coal-fired power plants; and


·
the price and availability of alternative fuels for electricity generation.





As discussed previously, our costs of production have increased in recent years.  We expect the higher costs to continue for the next several years, due to a number of factors, including increased governmental regulations, high prices in worldwide commodity markets, and a highly competitive market for a limited
supply of skilled mining personnel.





Our business is very sensitive to changes in supply and demand for coal and we carefully manage our mines to maximize operating results.  Events beyond our control could impact our profit margins.





Off-Balance Sheet Arrangements





In the normal course of business, we are a party to certain off-balance sheet arrangements, including guarantees, operating leases, indemnifications, and financial instruments with off-balance sheet risk, such as bank letters of credit and performance or surety bonds.  Liabilities related to these arrangements
are not reflected in our condensed consolidated balance sheets, and, except for the operating leases, we do not expect any material impact on our cash flow, results of operations or financial condition from these off-balance sheet arrangements.





We use surety bonds to secure reclamation, workers’ compensation and other miscellaneous obligations. At June 30, 2009, we had $104.5 million of outstanding surety bonds with third parties. These bonds were in place to secure obligations as follows: post-mining reclamation bonds of $60.7 million, workers’
compensation bonds of $40.3 million, wage payment, collection bonds, and other miscellaneous obligation bonds of $3.5 million. Recently, surety bond costs have increased and the market terms of surety bonds have generally become less favorable. To the extent that surety bonds become unavailable, we would seek to secure obligations with letters of credit, cash deposits, or other suitable forms of collateral.





We also use bank letters of credit to secure our obligations for workers’ compensation programs, various insurance contracts and other obligations.  At June 30, 2009, we had $59.5 million of letters of credit outstanding.  The letters of credits were issued under our Letter of Credit Facility.  In
addition, we may use up to $10 million of our $35 million Revolver for the issuance of additional letters of credit, if necessary.





Critical Accounting Estimates





Overview





Our discussion and analysis of our financial condition, results of operations, liquidity and capital resources are based upon our consolidated financial statements, which have been prepared in accordance with U.S generally accepted accounting principles.  U.S. generally accepted accounting principles require
estimates and judgments that affect reported amounts for assets, liabilities, revenues and expenses.  The estimates and judgments we make in connection with our consolidated financial statements are based on historical experience and various other factors we believe are reasonable under the circumstances.  Note 1 of the notes to the condensed consolidated financial statements and to our annual consolidated financial statements filed on Form 10-K list and describe our significant accounting
policies.  The following critical accounting policies have a material affect on amounts reported in our condensed consolidated financial statements.





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Workers' Compensation





We are liable under various state statutes for providing workers’ compensation benefits. To fulfill these obligations, we have used self-insurance programs with varying excess insurance levels, and, since June 7, 2002, a high-deductible, fully insured program. The high deductible, fully insured program is comparable
to a self-insured program where the excess insurance threshold equals the deductible level. In June of 2005, we became self insured for workers’ compensation for our Kentucky operations.





We accrue for the present value of certain workers’ compensation obligations as calculated annually by an independent actuary based upon assumptions for work-related injury and illness rates, discount rates and future trends for medical care costs.  The discount rate is based on interest rates on bonds
with maturities similar to the estimated future cash flows.  The discount rate used to calculate the present value of these future obligations was 6.0% at December 31, 2008.  Significant changes to interest rates result in substantial volatility to our consolidated financial statements. If we were to decrease our estimate of the discount rate from 6.0% to 5.5%, all other things being equal, the present value of our workers’ compensation obligation would increase by approximately $1.7
million. A change in the law, through either legislation or judicial action, could cause these assumptions to change. If the estimates do not materialize as anticipated, our actual costs and cash expenditures could differ materially from that currently estimated. Our estimated workers’ compensation liability as of June 30, 2009 was $57.9 million.





Coal Miners' Pneumoconiosis





We are required under the Federal Mine Safety and Health Act of 1977, as amended, as well as various state statutes, to provide pneumoconiosis (black lung) benefits to eligible current and former employees and their dependents. We provide these benefits through self-insurance programs and, for those claims incurred with
last exposure after June 6, 2002, a high-deductible, fully insured program.





An independent actuary calculates the estimated pneumoconiosis liability annually based on assumptions regarding disability incidence, medical costs, mortality, death benefits, dependents and interest rates. The discount rate is based on interest rates on high quality corporate bonds with maturities similar to the estimated
future cash flows. The discount rate used to calculate the present value of these future obligations was 5.75% at December 31, 2008. Significant changes to interest rates result in substantial volatility to our consolidated financial statements. If we were to decrease our estimate of the discount rate from 5.75% to 5.25%, all other things being equal, the present value of our black lung obligation would increase by approximately $2.1 million. A change in the law, through either legislation or judicial action,
could cause these assumptions to change. If these estimates prove inaccurate, the actual costs and cash expenditures could vary materially from the amount currently estimated. Our estimated pneumoconiosis liability as of June 30, 2009 was $31.2 million.





Defined Benefit Pension





We have in place a non-contributory defined benefit pension plan under which all benefits were frozen in 2007.  The estimated cost and benefits of our non-contributory defined benefit pension plans are determined annually by independent actuaries, who, with our review and approval, use various actuarial assumptions,
including discount rate and expected long-term rate of return on pension plan assets. In estimating the discount rate, we look to rates of return on high-quality, fixed-income investments with comparable maturities. At December 31, 2008, the discount rate used to determine the obligation was 6.0%. Significant changes to interest rates result in substantial volatility to our consolidated financial statements. If we were to decrease our estimate of the discount rate from 6.0% to 5.5%, all other things being equal,
the present value of our projected benefit obligation would increase by approximately $4.4 million. The expected long-term rate of return on pension plan assets is based on long-term historical return information and future estimates of long-term investment returns for the target asset allocation of investments that comprise plan assets. The expected long-term rate of return on plan assets used to determine expense was 7.5% for the periods ended
June 30, 2009. Significant changes to these rates would introduce volatility to our pension expense.  Our accrued pension obligation as of June 30, 2009 was $20.0 million.





Reclamation and Mine Closure Obligation





The Surface Mining Control Reclamation Act of 1977 establishes operational, reclamation and closure standards for all aspects of surface mining as well as many aspects of underground mining. Our asset retirement obligation liabilities consist of spending estimates related to reclaiming surface land and support facilities
at both surface and underground mines in accordance with federal and state reclamation laws. Our total reclamation and mine-closing liabilities are based upon permit requirements and our engineering estimates related to these requirements. US GAAP requires that asset retirement obligations be initially recorded as a liability based on fair value, which is calculated as the present value of the estimated future cash flows. Our management and engineers periodically review the estimate of ultimate reclamation liability
and the expected period in which reclamation work will be performed. In estimating future cash flows, we considered the estimated current cost of reclamation and applied inflation rates and a third party profit. The third party profit is an estimate of the approximate markup that would be charged by contractors for work performed on our behalf. The discount rate is our estimate of our credit adjusted risk free rate. The estimated liability can change significantly if actual costs vary from assumptions or if governmental
regulations change significantly. The actual costs could be different due to several reasons, including the possibility that our estimates could be incorrect, in which case our liabilities would differ. If we perform the reclamation work using our personnel rather than hiring a third party, as assumed under US GAAP, then the costs should be lower. If governmental regulations change, then the costs of reclamation will be impacted. US GAAP recognizes that the recorded liability could be different than the final
cost of the reclamation and addresses the settlement of the liability. When the obligation is settled, and there is a difference between the recorded liability and the amount paid to settle the obligation, a gain or loss upon settlement is included in earnings. Our asset retirement obligation as of June 30, 2009 was $42.8 million.





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Contingencies





We are the subject of, or a party to, various suits and pending or threatened litigation involving governmental agencies or private interests. We have accrued the probable and reasonably estimable costs for the resolution of these claims based upon management’s best estimate of potential results, assuming a combination
of litigation and settlement strategies. Unless otherwise noted, management does not believe that the outcome or timing of current legal or environmental matters will have a material impact on our financial condition, results of operations, or cash flows.  See the notes to the condensed consolidated financial statements for further discussion on our contingencies.





Income Taxes





We account for income taxes in accordance with FASB Statement No. 109, Accounting for Income Taxes (“Statement No. 109”), which requires that deferred tax assets and liabilities be recognized using enacted tax rates for the effect of temporary differences between the book and tax bases of recorded assets and
liabilities. Statement No. 109 also requires that deferred tax assets be reduced by a valuation allowance if it is more likely than not that some portion of the deferred tax asset will not be realized. In evaluating the need for a valuation allowance, we take into account various factors, including the expected level of future taxable income. We have also considered tax planning strategies in determining the deferred tax asset that will ultimately be realized. If actual results differ from the assumptions made
in the evaluation of the amount of our valuation allowance, we record a change in valuation allowance through income tax expense in the period such determination is made.





We recorded no tax benefit in 2008, based on the conclusion that the benefit of the 2008 net operating loss carryforward does not meet the more likely than not criteria to be realized.  In 2009, the Company expects to realize some benefit from its net operating loss carryforwards. As of June 30, 2009, the
Company had recorded a $47.8 million valuation allowance against its gross deferred tax assets.





Coal Reserves





There are numerous uncertainties inherent in estimating quantities and values of economically recoverable coal reserves. Many of these uncertainties are beyond our control. As a result, estimates of economically recoverable coal reserves are by their nature uncertain. Information about our reserves consists of estimates
based on engineering, economic and geological data initially assembled by our staff and analyzed by Marshall Miller & Associates, Inc. (MM&A). The reserve information has subsequently been updated by our staff. The updates to the reserves have been calculated in the same manner, and based on similar assumptions and qualifications, as used in the MM&A studies described above, but these updates to the reserve estimates have not been reviewed by MM&A.  A number of sources of information were
used to determine accurate recoverable reserves estimates, including:





·
all currently available data;





·
our own operational experience and that of our consultants;





·
historical production from similar areas with similar conditions;





·
previously completed geological and reserve studies;





·
the assumed effects of regulations and taxes by governmental agencies; and





·
assumptions governing future prices and future operating costs.





-28-


Reserve estimates will change from time to time to reflect, among other factors:





·
mining activities;





·
new engineering and geological data;





·
acquisition or divestiture of reserve holdings; and





·
modification of mining plans or mining methods.





Each of these factors may in fact vary considerably from the assumptions used in estimating reserves. For these reasons, estimates of the economically recoverable quantities of coal attributable to a particular group of properties, and classifications of these reserves based on risk of recovery and estimates of future
net cash flows, may vary substantially. Actual production, revenue and expenditures with respect to reserves will likely vary from estimates, and these variances could be material. In particular, a variance in reserve estimates could have a material adverse impact on our annual expense for depreciation, depletion and amortization and on our annual calculation for potential impairment. For a further discussion of our coal reserves, see “Reserves.”





Evaluation of Goodwill and Long-Lived Assets for Impairment





Goodwill is not amortized, but is subject to periodic assessments of impairment.  Impairment testing is performed at the reporting unit level. We test goodwill for impairment annually during the fourth quarter, or when changes in circumstances indicate that the carrying value may not be recoverable.  Long-lived
asset groups are tested for recoverability when changes in circumstances indicate the carrying value may not be recoverable.  Events that trigger a test for recoverability include material adverse changes in projected revenues and expenses, significant underperformance relative to historical or projected future operating results and significant negative industry or economic trends.





The estimates used to determine whether impairment has occurred to goodwill and long-lived assets are subject to a number of management assumptions.  We estimate the fair value of a reporting unit or asset group based on market prices (i.e., the amount for which the asset could be bought by or sold to a third party),
when available.  When market prices are not available, we estimate the fair value of the reporting unit or asset group using the income approach and/or the market approach, which are subject to a number of management assumptions.  The income approach uses cash flow projections.  Inherent in our development of cash flow projections are assumptions and estimates derived from a review of our operating results, approved operating budgets, expected growth rates and cost of capital.  We also make
certain assumptions about future economic conditions, interest rates, and other market data.  Many of the factors used in assessing fair value are outside the control of management, and these assumptions and estimates can change in future periods.





Changes in assumptions or estimates could materially affect the determination of fair value of an asset group, and therefore could affect the amount of potential impairment of the asset.  The following assumptions are key to our income approach:





·
We make assumptions about coal production, sales price for unpriced coal, cost to mine the coal and estimated residual value of property, plant and equipment.  These assumptions are key inputs for developing our cash flow projections.  These projections are derived using our internal operating budget and are
developed on a mine by mine basis.  These projections are updated annually and reviewed by the Board of Directors.  Historically, the Company’s primary variances between its projections and actual results have been with regard to assumptions for future coal production, sales prices of coal and costs to mine the coal.  These factors are based on our best knowledge at the time we prepare our budgets but can vary significantly due to regulatory issues, unforeseen mining conditions, change in
commodity prices, availability and costs of labor and changes in supply and demand.  While we make our best estimates at the time we prepare our budgets it is reasonably likely that these estimates will change in future budgets, due to the changing nature of the coal environment;·
Economic Projections – Assumptions regarding general economic conditions are included in and affect the assumptions used in our impairment tests.  These assumptions include, but are not limited to, supply and demand for coal, inflation, interest rates,
and prices of raw materials (commodities); and·
Discount Rates – When measuring a possible impairment, future cash flows are discounted at a rate that we believe represents our cost of capital.





Recent Accounting Pronouncements





See Item 1 of Part I, “Financial Statements — Note 1 — Summary of Significant Accounting Policies and Other Information — Recent Accounting Pronouncements.”


-29-





Other Supplemental Information





Reconciliation of Non-US GAAP Measures





EBITDA is a measure used by management to measure operating performance.  We define EBITDA as net income or loss plus interest expense (net), income tax expense and depreciation, depletion and amortization (EBITDA), to better measure our operating performance.  We regularly use EBITDA to evaluate our performance
as compared to other companies in our industry that have different financing and capital structures and/or tax rates.  In addition, we use EBITDA in evaluating acquisition targets.





Adjusted EBITDA and the leverage ratio are the amounts used in our current debt covenants.  Adjusted EBITDA is defined as EBITDA further adjusted for certain cash and non-cash charges and the leverage ratio limits our debt to a multiple of adjusted EBITDA.  Adjusted EBITDA and the leverage ratio are used
to determine compliance with financial covenants and our ability to engage in certain activities such as incurring additional debt and making certain payments.





EBITDA, Adjusted EBITDA, and the leverage ratio are not recognized terms under US GAAP and are not an alternative to net income, operating income or any other performance measures derived in accordance with US GAAP or an alternative to cash flow from operating activities as a measure of operating liquidity.  Because
not all companies use identical calculations, this presentation of EBITDA, Adjusted EBITDA and the leverage ratio may not be comparable to other similarly titled measures of other companies.  Additionally, EBITDA or Adjusted EBITDA are not intended to be a measure of free cash flow for management’s discretionary use, as they do not reflect certain cash requirements such as tax payments, interest payments and other contractual obligations.





The leverage ratio is calculated as the Company’s Senior Funded Indebtedness divided by annualized adjusted EBITDA as calculated below.  The Senior Funded Indebtedness as of June 30, 2009 is $54.8 million and includes the amounts outstanding under our revolver and amounts of the letters of credit available
to be issued under our letter of credit facility as of June 30, 2009.




Six months endedJune 30,


June 30,2009


2008Net income (loss)

$
44,349



(40,694
)Income tax expense


1,079



-Interest expense


7,867



9,075Interest income


(50
)


(262
)Depreciation, depletion, and amortization


30,395



34,842EBITDA (before adjustments)

$
83,640



2,961Other adjustments specified in our current debt agreement:Charges associated with repayment and amendment of debt


-



3,013Other adjustments


6,590



4,701Adjusted EBITDA

$
90,230



10,675







FORWARD-LOOKING INFORMATION





From time to time, we make certain comments and disclosures in reports and statements, including this report, or statements made by our officers, which may be forward-looking in nature. Examples include statements related to our future outlook, anticipated capital expenditures, future cash flows and borrowings, and sources
of funding. These forward-looking statements could also involve, among other things, statements regarding our intent, belief or expectation with respect to:





·
our cash flows, results of operation or financial condition;





·
the consummation of acquisition, disposition or financing transactions and the effect thereof on our business;





·
governmental policies and regulatory actions;





·
legal and administrative proceedings, settlements, investigations and claims;





·
weather conditions or catastrophic weather-related damage;





·
our production capabilities;





-30-





·
availability of transportation;





·
market demand for coal, electricity and steel;





·
competition;





·
our relationships with, and other conditions affecting, our customers;





·
employee workforce factors;





·
our assumptions concerning economically recoverable coal reserve estimates;





·
future economic or capital market conditions; and





·
our plans and objectives for future operations and expansion or consolidation.





Any forward-looking statements are subject to the risks and uncertainties that could cause actual cash flows, results of operations, financial condition, cost reductions, acquisitions, dispositions, financing transactions, operations, expansion, consolidation and other events to differ materially from those expressed
or implied in such forward-looking statements. Any forward-looking statements are also subject to a number of assumptions regarding, among other things, future economic, competitive and market conditions generally. These assumptions would be based on facts and conditions as they exist at the time such statements are made as well as predictions as to future facts and conditions, the accurate prediction of which may be difficult and involve the assessment of events beyond our control.





We wish to caution readers that forward-looking statements, including disclosures which use words such as “believe,” “intend,” “expect,” “may,” “should,” “anticipate,” “could,” “estimate,” “plan,” “predict,”
“project,” or their negatives, and similar statements, are subject to certain risks and uncertainties which could cause actual results to differ materially from expectations. These risks and uncertainties include, but are not limited to, the following: a change in the demand for coal by electric utility customers; the loss of one or more of our largest customers; inability to secure new coal supply agreements or to extend existing coal supply agreements at market prices; our dependency on one railroad
for transportation of a large percentage of our products; failure to exploit additional coal reserves; the risk that reserve estimates are inaccurate; failure to diversify our operations; increased capital expenditures; encountering difficult mining conditions; increased costs of complying with mine health and safety regulations; bottlenecks or other difficulties in transporting coal to our customers; delays in the development of new mining projects; increased costs of raw materials; the effects of litigation,
regulation and competition; lack of availability of financing sources; our compliance with debt covenants; the risk that we are unable to successfully integrate acquired assets into our business; and the risk factors set forth in this Form 10-Q under Part II - Item 1A “Risk Factors.” Those are representative of factors that could affect the outcome of the forward-looking statements. These and the other factors discussed elsewhere in this document are not necessarily all of the important factors that
could cause our results to differ materially from those expressed in our forward-looking statements. Forward-looking statements speak only as of the date they are made and we undertake no obligation to update them.





ITEM3.  QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK





Our $150 million Senior Notes have a fixed interest rate and are not sensitive to changes in the general level of interest rates.  Our Revolver has floating interest rates based on our option of either the base rate or LIBOR rate.  As of June 30, 2009, we had no borrowings outstanding under the Revolver.  We
currently do not use interest rate swaps to manage this risk.  A 100 basis point (1.0%) increase in the average interest rate for our floating rate borrowings would increase our annual interest expense by approximately $0.1 million for each $10 million of borrowings under the Revolver.





We manage our commodity price risk through the use of long-term coal supply agreements, which we define as contracts with a term of one year or more, rather than through the use of derivative instruments.  The percentage of our sales pursuant to long-term contracts was approximately 93% for the six month ended
June 30, 2009.





All of our transactions are denominated in U.S. dollars, and, as a result, we do not have material exposure to currency exchange-rate risks.





We are not engaged in any foreign currency exchange rate or commodity price-hedging transactions and we have no trading market risk.


-31-





ITEM4.  CONTROLS AND PROCEDURES




Evaluation of Disclosure Controls and Procedures





Pursuant to Rule 13a-15(b) under the Securities Exchange Act of 1934 (“Exchange Act”), the Company carried out an evaluation, with the participation of the Company’s management, including the Company’s Chief Executive Officer (CEO) and Chief Accounting Officer (CAO) (the Company’s principal
financial and accounting officer), of the effectiveness of the Company’s disclosure controls and procedures (as defined under Rule 13a-15(e) under the Exchange Act) as of the end of the period covered by this report. Based upon that evaluation, the Company’s CEO and CAO concluded that the Company’s disclosure controls and procedures are effective to ensure that information required to be disclosed by the Company in the reports that the Company files or submits under the Exchange Act, is recorded,
processed, summarized and reported, within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to the Company’s management, including the Company’s CEO and CAO, as appropriate, to allow timely decisions regarding required disclosure.





There were no changes in our internal control over financial reporting during the three months ended June 30, 2009 that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.





The Company’s management, including the Company’s CEO and CAO, does not expect that the Company’s disclosure controls and procedures or the Company’s internal controls will prevent all errors and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable,
not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of the controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected.











PARTII


OTHER INFORMATION











ITEM 1.  LEGALPROCEEDINGS





We are party to a number of legal proceedings incidental to our normal business activities, including a large number of workers’ compensation claims.  While we cannot predict the outcome of these proceedings, in our opinion, any liability arising from these matters individually and in the aggregate should
not have a material adverse effect on our consolidated financial position, cash flows or results of operations.





ITEM 1A. RISKFACTORS





Certain Risks





For a discussion of certain risk factors that may impact our business, refer to “Critical Accounting Estimates and Assumptions” within this Form 10-Q.  The following are additional risks and uncertainties that we believe are material to our business.  It is possible that there are additional
risks and uncertainties that affect our business that will arise or become material in the future.





Risks Related to the Coal Industry





Because the demand and pricing for coal is greatly influenced by consumption patterns of the domestic electricity generation industry, a reduction in the demand for coal by this industry would likely cause our revenues and profitability to decline significantly.





We derived 92% of our total revenues (contract and spot) for the six months ended June 30, 2009 and 81% of our total revenues in 2008, from our electric utility customers. Fuel cost is a significant component of the cost associated with coal-fired power generation, with respect to not only the price of the coal, but also
the costs associated with emissions control and credits (i.e., sulfur dioxide, nitrogen oxides, etc.), combustion by-product disposal (i.e., ash) and equipment operations and maintenance (i.e., materials handling facilities). All of these costs must be considered when choosing between coal generation and alternative methods, including natural
gas, nuclear, hydroelectric and others.





Weather patterns also can greatly affect electricity generation. Extreme temperatures, both hot and cold, cause increased power usage and, therefore, increased generating requirements from all sources. Mild temperatures, on the other hand, result in lower electrical demand, which allows generators to choose the lowest-cost
sources of power generation when deciding which generation sources to dispatch. Accordingly, significant changes in weather patterns could reduce the demand for our coal.





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Overall economic activity and the associated demands for power by industrial users can have significant effects on overall electricity demand. Downward economic pressures can cause decreased demands for power, by both residential and industrial customers.





Any downward pressure on coal prices, whether due to increased use of alternative energy sources, changes in weather patterns, decreases in overall demand or otherwise, would likely cause our profitability to decline.





Electric utility deregulation is expected to provide incentives to generators of electricity to minimize their fuel costs and is believed to have caused electric generators to be more aggressive in negotiating prices with coal suppliers. To the extent utility deregulation causes our customers to be more cost-sensitive,
deregulation may have a negative effect on our profitability.





Changes in the export and import markets for coal products could affect the demand for our coal, our pricing and our profitability.





We compete in a worldwide market. The pricing and demand for our products is affected by a number of factors beyond our control. These factors include:





•
currency exchange rates;•
growth of economic development;•
price of alternative sources of electricity;•
world wide demand; and•
ocean freight rates





Any decrease in the amount of coal exported from the United States, or any increase in the amount of coal imported into the United States, could have a material adverse impact on the demand for our coal, our pricing and our profitability.





Increased consolidation and competition in the U.S. coal industry may adversely affect our revenues and profitability.





During the last several years, the U.S. coal industry has experienced increased consolidation, which has contributed to the industry becoming more competitive. Consequently, many of our competitors in the domestic coal industry are major coal producers who have significantly greater financial resources than us. The intense
competition among coal producers may impact our ability to retain or attract customers and may therefore adversely affect our future revenues and profitability.





Fluctuations in transportation costs and the availability and dependability of transportation could affect the demand for our coal and our ability to deliver coal to our customers.





Increases in transportation costs could have an adverse effect on demand for our coal. Customers choose coal supplies based, primarily, on the total delivered cost of coal. Any increase in transportation costs would cause an increase in the total delivered cost of coal. That could cause some of our customers to seek less
expensive sources of coal or alternative fuels to satisfy their energy needs. In addition, significant decreases in transportation costs from other coal-producing regions, both domestic and international, could result in increased competition from coal producers in those regions. For instance, coal mines in the western United States could become more attractive as a source of coal to consumers in the eastern United States, if the costs of transporting coal from the West were significantly reduced.





Our Central Appalachia mines generally ship coal via rail systems. During 2008, we shipped in excess of 95% of our coal from our Central Appalachia mines via CSX. In the Midwest, we shipped approximately 63% of our produced coal by truck and the remainder via rail systems.  We believe that our 2009 transportation
modes will be comparable to those used in 2008.  Our dependence upon railroads and third party trucking companies impacts our ability to deliver coal to our customers. Disruption of service due to weather-related problems, strikes, lockouts, bottlenecks and other events could temporarily impair our ability to supply coal to our customers, resulting in decreased shipments. Decreased performance levels over longer periods of time could cause our customers to look elsewhere for their fuel needs, negatively
affecting our revenues and profitability.





In past years, the major eastern railroads (CSX and Norfolk Southern) have experienced periods of increased overall rail traffic due to an expanding economy and shortages of both equipment and personnel. This increase in traffic could impact our ability to obtain the necessary rail cars to deliver coal to our customers
and have an adverse impact on our financial results.





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Shortages or increased costs of skilled labor in the Central Appalachian coal region may hamper our ability to achieve high labor productivity and competitive costs.





Coal mining continues to be a labor-intensive industry. In times of increased demand, many producers attempt to increase coal production, which historically has resulted in a competitive market for the limited supply of trained coal miners in the Central Appalachian region. In some cases, this market situation has caused
compensation levels to increase, particularly for “skilled” positions such as electricians and mine foremen. To maintain current production levels, we may be forced to respond to increases in wages and other forms of compensation, and related recruiting efforts by our competitors. Any future shortage of skilled miners, or increases in our labor costs, could have an adverse impact on our labor productivity and costs and on our ability to expand production.





Government laws, regulations and other requirements relating to the protection of the environment, health and safety and other matters impose significant costs on us, and future requirements could limit our ability to produce coal.





We are subject to extensive federal, state and local regulations with respect to matters such as:





•
employee health and safety;•
permitting and licensing requirements;•
air quality standards;•
water quality standards;•
plant, wildlife and wetland protection;•
blasting operations;•
the management and disposal of hazardous and non-hazardous materials generated by mining operations;•
the storage of petroleum products and other hazardous substances;•
reclamation and restoration of properties after mining operations are completed;•
discharge of materials into the environment, including air emissions and wastewater discharge;•
surface subsidence from underground mining; and•
the effects of mining operations on groundwater quality and availability.





Complying with these requirements, including the terms of our permits, has had, and will continue to have, a significant effect on our costs of operations. We could incur substantial costs, including clean up costs, fines, civil or criminal sanctions and third party claims for personal injury or property damage as a result
of violations of or liabilities under these laws and regulations.





The coal industry is also affected by significant legislation mandating specified benefits for retired miners. In addition, the utility industry, which is the most significant end user of coal, is subject to extensive regulation regarding the environmental impact of its power generating activities. Coal contains impurities,
including sulfur, mercury, chlorine and other elements or compounds, many of which are released into the air when coal is burned. Stricter environmental regulations of emissions from coal-fired electric generating plants could increase the costs of using coal, thereby reducing demand for coal as a fuel source or the volume and price of our coal sales, or making coal a less attractive fuel alternative in the planning and building of utility power plants in the future.





New legislation, regulations and orders adopted or implemented in the future (or changes in interpretations of existing laws and regulations) may materially adversely affect our mining operations, our cost structure and our customers’ operations or ability to use coal.





The majority of our coal supply agreements contain provisions that allow the purchaser to terminate its contract if legislation is passed that either restricts the use or type of coal permissible at the purchaser’s plant or results in too great an increase in the cost of coal. These factors and legislation, if enacted,
could have a material adverse effect on our financial condition and results of operations.





The passage of legislation responsive to the Framework Convention on Global Climate Change or similar governmental initiatives could result in restrictions on coal use.





The United States and more than 160 other nations are signatories to the 1992 Framework Convention on Global Climate Change, commonly known as the Kyoto Protocol, which is intended to limit or capture emissions of greenhouse gases, such as carbon dioxide. In December 1997, the signatories to the convention established
a potentially binding set of emissions targets for developed nations. Although the specific emissions targets vary from country to country, the United States would be required to reduce emissions to 93% of 1990 levels over a five-year budget period from 2008 through 2012. The U.S. Senate has not ratified the treaty commitments.  The current administration could support the effort to ratify the treaty. With Russia’s ratification of the Kyoto Protocol in 2004, it became binding on all ratifying
countries. The implementation of the Kyoto Protocol in the United States and other countries, and other emissions limits, such as those adopted by the European Union, could affect demand for coal outside the United States. If the Kyoto Protocol or other comprehensive legislation focusing on greenhouse gas emissions is enacted by the United States, it could have the effect of restricting the use of coal.  Other efforts to reduce emissions of greenhouse gases and federal initiatives to encourage the use
of natural gas also may affect the use of coal as an energy source.





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We are subject to the federal Clean Water Act and similar state laws which impose treatment, monitoring and reporting obligations.





The federal Clean Water Act and corresponding state laws affect coal mining operations by imposing restrictions on discharges into regulated waters. Permits requiring regular monitoring and compliance with effluent limitations and reporting requirements govern the discharge of pollutants into regulated waters. New requirements
under the Clean Water Act and corresponding state laws could cause us to incur significant additional costs that adversely affect our operating results.





Regulations have expanded the definition of black lung disease and generally made it easier for claimants to assert and prosecute claims, which could increase our exposure to black lung benefit liabilities.





In January 2001, the United States Department of Labor amended the regulations implementing the federal black lung laws to give greater weight to the opinion of a claimant’s treating physician, expand the definition of black lung disease and limit the amount of medical evidence that can be submitted by claimants
and respondents. The amendments also alter administrative procedures for the adjudication of claims, which, according to the Department of Labor, results in streamlined procedures that are less formal, less adversarial and easier for participants to understand. These and other changes to the federal black lung regulations could significantly increase our exposure to black lung benefits liabilities.





In recent years, legislation on black lung reform has been introduced but not enacted in Congress and in the Kentucky legislature. It is possible that this legislation will be reintroduced for consideration by Congress. If any of the proposals included in this or similar legislation is passed, the number of claimants
who are awarded benefits could significantly increase. Any such changes in black lung legislation, if approved, may adversely affect our business, financial condition and results of operations.





Extensive environmental laws and regulations affect the end-users of coal and could reduce the demand for coal as a fuel source and cause the volume of our sales to decline.





The Clean Air Act and similar state and local laws extensively regulate the amount of sulfur dioxide, particulate matter, nitrogen oxides, mercury and other compounds emitted into the air from electric power plants, which are the largest end-users of our coal. Compliance with such laws and regulations, which can take
a variety of forms, may reduce demand for coal as a fuel source because they require significant emissions control expenditures for coal-fired power plants to attain applicable ambient air quality standards, which may lead these generators to switch to other fuels that generate less of these emissions and may also reduce future demand for the construction of coal-fired power plants.





The U.S. Department of Justice, on behalf of the EPA, has filed lawsuits against several investor-owned electric utilities and brought an administrative action against one government-owned utility for alleged violations of the Clean Air Act. We supply coal to some of the currently-affected utilities, and it is possible
that other of our customers will be sued. These lawsuits could require the utilities to pay penalties, install pollution control equipment or undertake other emission reduction measures, any of which could adversely impact their demand for our coal.





A regional haze program initiated by the EPA to protect and to improve visibility at and around national parks, national wilderness areas and international parks restricts the construction of new coal-fired power plants whose operation may impair visibility at and around federally protected areas and may require some
existing coal-fired power plants to install additional control measures designed to limit haze-causing emissions.





The Clean Air Act also imposes standards on sources of hazardous air pollutants. These standards and future standards could have the effect of decreasing demand for coal. So-called multi-pollutant bills, which could regulate additional air pollutants, have been proposed by various members of Congress. If such initiatives
are enacted into law, power plant operators could choose other fuel sources to meet their requirements, reducing the demand for coal.





Other so-called multi-pollutant bills, which could regulate additional air pollutants, have been proposed by various members of Congress. If such initiatives are enacted into law, power plant operators could choose other fuel sources to meet their requirements, reducing the demand for coal.





The characteristics of coal may make it difficult for coal users to comply with various environmental standards related to coal combustion. As a result, they may switch to other fuels, which would affect the volume or price of our sales.





Coal contains impurities, including sulfur, nitrogen oxide, mercury, chlorine and other elements or compounds, many of which are released into the air when coal is burned. Stricter environmental regulations of emissions from coal-fired electric generating plants could increase the costs of using coal thereby reducing
demand for coal as a fuel source, and the volume and price of our coal sales. Stricter regulations could make coal a less attractive fuel alternative in the planning and building of utility power plants in the future.





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For example, in order to meet the federal Clean Air Act limits for sulfur dioxide emissions from electric power plants, coal users may need to install scrubbers, use sulfur dioxide emission allowances (some of which they may purchase), blend high sulfur coal with low sulfur coal or switch to other fuels. Each option has
limitations. Lower sulfur coal may be more costly to purchase on an energy basis than higher sulfur coal depending on mining and transportation costs. The cost of installing scrubbers is significant and emission allowances may become more expensive as their availability declines. Switching to other fuels may require expensive modification of existing plants.





In March 2005, the EPA adopted new federal rules intended to reduce the interstate transport of fine particulate matter and ozone through reductions in sulfur dioxides and nitrogen oxides through the eastern United States.  The reductions were to be implemented in stages, some through a market-based cap-and-trade
program. Such new regulations would likely require some power plants to install new equipment, at substantial cost, or discourage the use of certain coals containing higher levels of mercury.  The particular rules introduced by the EPA in March 2005 were subsequently struck down by the U.S. Court of Appeals for the D.C. Circuit on July 11, 2008.  On December 23, 2008, the U.S. Court of Appeals for the D.C. Circuit remanded consolidated cases to the EPA without vacatur of the Clean Air Interstate
Rule in order that the EPA could remedy flaws in the Rule. The EPA continues to address the issues raised in the Court’s opinions issued on July 11, 2008 and December 23, 2008.  New and proposed reductions in emissions of sulfur dioxides, nitrogen oxides, particulate matter or greenhouse gases may require the installation of additional costly control technology or the implementation of other measures, including trading of emission allowances and switching to other fuels.





In 2009, the EPA issued a finding that carbon dioxide emissions endanger the environment.  This could result in the federal government deciding to cap carbon emissions and other greenhouse gases.  Current proposals include a cap and trade system that would require the purchase of emission permits,
which could be traded on the open market. These proposals will make it more costly to operate coal-fired plants and could make coal a less attractive fuel alternative to the planning and building of utility power plants in the future. To the extent that any new or proposed requirements affect our customers, this could adversely affect our operations and results.  In the second quarter of 2009, a bill passed the house that would reduce greenhouse-gas emissions to 17% below 2005 levels by 2020 and 80% below
2005 levels by the middle of the century.





There can be no assurance at this time that a carbon dioxide cap and trade program, a carbon tax or other regulatory regime, if implemented by the states in which our customers operate or at the federal level, will not affect the future market for coal in those regions. The permitting of new coal-fueled power plants has
also recently been contested by state regulators and environmental organizations based on concerns relating to greenhouse gas emissions. Increased efforts to control greenhouse gas emissions could result in reduced demand for coal.





We must obtain governmental permits and approvals for mining operations, which can be a costly and time consuming process and result in restrictions on our operations.





Numerous governmental permits and approvals are required for mining operations. Our operations are principally regulated under permits issued by state regulatory and enforcement agencies pursuant to the federal Surface Mining Control and Reclamation Act (SMCRA).  Regulatory authorities exercise considerable
discretion in the timing and scope of permit issuance. Requirements imposed by these authorities may be costly and time consuming and may result in delays in the commencement or continuation of exploration or production operations. In addition, we often are required to prepare and present to federal, state and local authorities data pertaining to the effect or impact that proposed exploration for or production of coal might have on the environment. Further, the public may comment on and otherwise engage in the
permitting process, including through intervention in the courts. Accordingly, the permits we need may not be issued, or, if issued, may not be issued in a timely fashion, or may involve requirements that restrict our ability to conduct our mining operations or to do so profitably.





Prior to placing excess fill material in valleys in connection with surface mining operations, coal mining companies are required to obtain a permit from the U.S. Army Corps of Engineers (Corps) under Section 404 of the Clean Water Act (404 Permit). The permit can be either a simplified Nation Wide Permit #21 (NWP 21)
or a more complicated individual permit. Litigation respecting the validity of the NWP 21 permit program as currently administered has been ongoing for several years. On March 23, 2007, U.S. District Judge Robert Chambers of the Southern District of West Virginia struck down several 404 permits that had been issued by the Corps and found that the Corps’ decisions to issue such permits did not conform to the requirements of the Clean Water Act or the National Environmental Policy Act because the Corps failed
to do a full assessment of all of the impacts of eliminating headwater streams.This ruling was recently reversed on appeal to the 4th Circuit Court of Appeals. While the lower court ruling applied only to the permits at issue in the case before Judge Chambers and thus would have had precedence only with respect to certain counties in southern West Virginia (where we do not
now operate), the matters at issue in that case may be litigated in the future in jurisdictions in which we do operate and a ruling for the plaintiffs in such litigation or the NWP 21 litigation could have an adverse impact on our planned surface mining operations.





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In January 2005, a virtually identical claim to that filed in West Virginia was filed in Kentucky. The plaintiffs in this case, Kentucky Riverkeepers, Inc., et al. v. Colonel Robert A. Rowlette, Jr., et al., Civil Action No 05-CV-36-JBC, seek the same relief as
that sought in West Virginia. The court heard oral arguments on plaintiffs’ preliminary injunction motion and/or motion for summary judgment in late 2005 and those motions were denied as moot as the 2002 NWP being challenged had expired before a decision was rendered in the case.  The presiding judge has allowed the plaintiffs to renew the challenge against the 2007 permits and the case continues to move forward. A ruling for the plaintiffs in this matter could have an adverse impact on our planned
surface mining operations.





Most recently, the Environmental Protection Agency has announced publicly that it will exercise its statutory right to more actively review 404 Permitting actions by the Corps.  Such oversight could further delay and/or restrict the issuance of such Permits, either of which events could have an adverse impact
on our planned surface mining operations.





We have significant reclamation and mine closure obligations. If the assumptions underlying our accruals are materially inaccurate, we could be required to expend greater amounts than anticipated.





The SMCRA establishes operational, reclamation and closure standards for all aspects of surface mining as well as many aspects of underground mining. We accrue for the costs of current mine disturbance and of final mine closure, including the cost of treating mine water discharge where necessary. Under U.S. generally
accepted accounting principles we are required to account for the costs related to the closure of mines and the reclamation of the land upon exhaustion of coal reserves. Specifically, the fair value of an asset retirement obligation is recognized in the period in which it is incurred if a reasonable estimate of fair value can be made. The present value of the estimated asset retirement costs is capitalized as part of the carrying amount of the long-lived asset. At June 30, 2009, we had accrued $42.8 million related
to estimated mine reclamation costs. These amounts recorded are dependent upon a number of variables, including the estimated future retirement costs, estimated proven reserves, assumptions involving profit margins, inflation rates, and the assumed credit-adjusted interest rates. Furthermore, these obligations are unfunded. If these accruals are insufficient or our liability in a particular year is greater than currently anticipated, our future operating results could be adversely affected.





Terrorist attacks and threats, escalation of military activity in response to such attacks or acts of war may negatively affect our business, financial condition and results of operations.





Terrorist attacks and threats, escalation of military activity in response to such attacks or acts of war may negatively affect our business, financial condition and results of operations. Our business is affected by general economic conditions, fluctuations in consumer confidence and spending, and market liquidity, which
can decline as a result of numerous factors outside of our control, such as terrorist attacks and acts of war. Future terrorist attacks against U.S. targets, rumors or threats of war, actual conflicts involving the United States or its allies, or military or trade disruptions affecting our customers could cause delays or losses in transportation and deliveries of coal to our customers, decreased sales of our coal and extension of time for payment of accounts receivable from our customers. Strategic targets such
as energy-related assets may be at greater risk of future terrorist attacks than other targets in the United States. In addition, disruption or significant increases in energy prices could result in government-imposed price controls. It is possible that any, or a combination, of these occurrences could have a material adverse effect on our business, financial condition and results of operations.





Risks Related to Our Operations





We have experienced operating losses and net losses in each of the last three years and may experience losses in the future.





We have experienced operating losses and net losses and in the years ended December 31, 2008, 2007 and 2006.  Our operating loss and net loss increased in each of these three years.  While we expect to be profitable in 2009, we must continue to carefully manage our business, including the balance of our long-term
and short-term sales contracts and our production costs.  Although we seek to balance our contract mix to achieve optimal revenues over the long term, the market price of coal is affected by many factors that are outside of our control.  Our production costs have increased in recent years, and we expect higher costs to continue for the next several years.  Accordingly, we cannot assure you that we will be able to achieve profitability in the future.





The loss of, or significant reduction in, purchases by our largest customers could adversely affect our revenues.





For the six months ended June 30, 2009, we generated approximately 92% of our total revenues from several long-term contracts and spot sales with electrical utilities, including 37% from Georgia Power Company, and 38% from South Carolina Public Service Authority. At June 30, 2009, we had coal supply agreements with these
customers that expire in 2009 to 2012. The execution of a substantial coal supply agreement is frequently the basis on which we undertake the development of coal reserves required to be supplied under the contract.


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Many of our coal supply agreements contain provisions that permit adjustment of the contract price upward or downward at specified times. Failure of the parties to agree on a price under those provisions may allow either party to either terminate the contract or reduce the coal to be delivered under the contract. Coal
supply agreements also typically contain force majeure provisions allowing temporary suspension of performance by the customer or us for the duration of specified events beyond the control of the affected party. Most coal supply agreements contain provisions requiring us to deliver coal meeting quality thresholds for certain characteristics such as:





•
British thermal units (Btu’s);•
sulfur content;•
ash content;•
grindability; and•
ash fusion temperature.





In some cases, failure to meet these specifications could result in economic penalties, including price adjustments, the rejection of deliveries or termination of the contracts. In addition, all of our contracts allow our customers to renegotiate or terminate their contracts in the event of changes in regulations or other
governmental impositions affecting our industry that increase the cost of coal beyond specified limits. Further, we have been required in the past to purchase sulfur credits or make other pricing adjustments to comply with contractual requirements relating to the sulfur content of coal sold to our customers, and may be required to do so in the future.





The operating profits we realize from coal sold under supply agreements depend on a variety of factors. In addition, price adjustment and other provisions may increase our exposure to short-term coal price volatility provided by those contracts. If a substantial portion of our coal supply agreements are modified or terminated,
we could be materially adversely affected to the extent that we are unable to find alternate buyers for our coal at the same level of profitability. As a result, we might not be able to replace existing long-term coal supply agreements at the same prices or with similar profit margins when they expire.





Our operating results will be negatively impacted if we are unable to balance our mix of contract and spot sales.





We have implemented a sales plan that includes long-term contracts (one year or greater) and spot sales/short-term contracts (less than one year). We have structured our sales plan based on the assumptions that demand will remain adequate to maintain current shipping levels and that any disruptions in the market will
be relatively short-lived. If we are unable to maintain a balance of contract sales with spot sales, or our markets become depressed for an extended period of time, our volumes and margins could decrease, negatively affecting our operating results.





Our ability to operate our company effectively could be impaired if we lose senior executives or fail to employ needed additional personnel.





The loss of senior executives could have a material adverse effect on our business. There may be a limited number of persons with the requisite experience and skills to serve in our senior management positions. We may not be able to locate or employ qualified executives on acceptable terms. In addition, as our business
develops and expands, we believe that our future success will depend greatly on our continued ability to attract and retain highly skilled and qualified personnel. We might not continue to be able to employ key personnel, or to attract and retain qualified personnel in the future. Failure to retain senior executives or attract key personnel could have a material adverse effect on our operations and financial results.





Underground mining is subject to increased regulation, and may require us to incur additional cost.





Underground coal mining is subject to federal and state laws and regulations relating to safety in underground coal mines and enforcement activities by federal and state regulators.  These laws and regulations, the most significant of which is the federal MINER Act,  include requirements for constructing and
maintaining caches for the storage of additional self-contained self rescuers throughout underground mines; installing rescue chambers in underground mines; constant tracking of and communication with personnel in the mines; installing cable lifelines from the mine portal to all sections of the mine to assist in emergency escape; submission and approval of emergency response plans; new and additional safety training; providing refuge alternatives; and improving flame-resistant conveyor belts and other fire protection
measures.  In 2007, implementation of the MINER Act continued with new penalty regulations that significantly increased regular penalty amounts and special assessments.  In addition, a new emergency temporary standard was issued relating to mine seal requirements.  During the 2007-2008 Congressional term, additional new federal legislation known as the S-MINER Act was proposed.  Although the bill passed in the House of Representatives by roll call vote, the Senate referred
it to the Committee on Health, Education, Labor and Pensions and never voted on the bill.  The outlook for 2009 includes the possibility that the S-MINER Act could be passed which would further increase our cost structure and materially adversely impact our operating performance.  Various states also have enacted their own new laws and regulations addressing many of these same subjects.   These new laws and regulations will cause us to incur substantial additional costs, which will
adversely impact our operating performance.


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The U.S. Department of Labor, Mine Safety and Health Administration (MSHA) periodically notifies certain coal mines that a potential pattern of violations may exist based upon an initial statistical screening of violation history and pattern criteria review by MSHA.  Upon receipt of such a notification, we conduct
a comprehensive review of the operation that received the notification and prepare and submit to MSHA plans designed to enhance employee safety at the mine through better education, training, mining practices, and safety management.   Following implementation of the plans, MSHA conducts a complete inspection of the mine and further evaluates the situation and then advises the operator whether a pattern of violation exists and whether further action will be taken.   We have been notified
by MSHA that a potential pattern of violation exists at one of our mines.  Failure to remediate the situation resulting in a finding that a pattern of violation exists at the mine could have a significant impact on our operations.





Unexpected increases in raw material costs could significantly impair our operating results.





Our coal mining operations use significant amounts of steel, petroleum products and other raw materials in various pieces of mining equipment, supplies and materials, including the roof bolts required by the room and pillar method of mining. Recently and historically, petroleum prices and other commodity prices have been
volatile. If the price of steel or other of these materials increase, our operational expenses will increase, which could have a significant negative impact on our cash flow and operating results.





Coal mining is subject to conditions or events beyond our control, which could cause our quarterly or annual results to deteriorate.





Our coal mining operations are conducted, in large part, in underground mines and, to a lesser extent, at surface mines. These mines are subject to conditions or events beyond our control that could disrupt operations, affect production and the cost of mining at particular mines for varying lengths of time and have a
significant impact on our operating results. These conditions or events have included:





•
variations in thickness of the layer, or seam, of coal;•
variations in geological conditions;•
amounts of rock and other natural materials intruding into the coal seam;•
equipment failures and unexpected major repairs;•
unexpected maintenance problems;•
unexpected departures of one or more of our contract miners;•
fires and explosions from methane and other sources;•
accidental minewater discharges or other environmental accidents;•
other accidents or natural disasters; and•
weather conditions.





Mining in Central Appalachia is complex due to geological characteristics of the region.





The geological characteristics of coal reserves in Central Appalachia, such as depth of overburden and coal seam thickness, make them complex and costly to mine. As mines become depleted, replacement reserves may not be available when required or, if available, may not be capable of being mined at costs comparable to
those characteristic of the depleting mines. These factors could materially adversely affect the mining operations and cost structures of, and customers’ ability to use coal produced by, operators in Central Appalachia, including us.





Our future success depends upon our ability to acquire or develop additional coal reserves that are economically recoverable.





Our recoverable reserves decline as we produce coal. Since we attempt, where practical, to mine our lowest-cost reserves first, we may not be able to mine all of our reserves at a similar cost as we do at our current operations. Our planned development and exploration projects might not result in significant additional
reserves, and we might not have continuing success developing additional mines. For example, our construction of additional mining facilities necessary to exploit our reserves could be delayed or terminated due to various factors, including unforeseen geological conditions, weather delays or unanticipated development costs. Our ability to acquire additional coal reserves in the future also could be limited by restrictions under our existing or future debt facilities, competition from other coal companies for
attractive properties or the lack of suitable acquisition candidates.





In order to develop our reserves, we must receive various governmental permits. We have not yet applied for the permits required or developed the mines necessary to mine all of our reserves. In addition, we might not continue to receive the permits necessary for us to operate profitably in the future. We may not be able
to negotiate new leases from the government or from private parties or obtain mining contracts for properties containing additional reserves or maintain our leasehold interests in properties on which mining operations are not commenced during the term of the lease.





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Factors beyond our control could impact the amount and pricing of coal supplied by our independent contractors and other third parties.





In addition to coal we produce from our Company-operated mines, we have mines that typically are operated by independent contract mine operators, and we purchase coal from third parties for resale. For 2009, we anticipate less than 10% of our total production will come from mines operated by independent contract mine
operators and from third party purchased coal sources. Operational difficulties, changes in demand for contract mine operators from our competitors and other factors beyond our control could affect the availability, pricing and quality of coal produced for us by independent contract mine operators. Disruptions in supply, increases in prices paid for coal produced by independent contract mine operators or purchased from third parties, or the availability of more lucrative direct sales opportunities for our purchased
coal sources could increase our costs or lower our volumes, either of which could negatively affect our profitability.





We face significant uncertainty in estimating our recoverable coal reserves, and variations from those estimates could lead to decreased revenues and profitability.





Forecasts of our future performance are based on estimates of our recoverable coal reserves. Estimates of those reserves were initially based on studies conducted by Marshall Miller & Associates, Inc. in accordance with industry-accepted standards which we have updated for current activity using similar methodologies.
A number of sources of information were used to determine recoverable reserves estimates, including:





•
currently available geological, mining and property control data and maps;•
our own operational experience and that of our consultants;•
historical production from similar areas with similar conditions;•
previously completed geological and reserve studies;•
the assumed effects of regulations and taxes by governmental agencies; and•
assumptions governing future prices and future operating costs.





Reserve estimates will change from time to time to reflect, among other factors:





•
mining activities;•
new engineering and geological data;•
acquisition or divestiture of reserve holdings; and•
modification of mining plans or mining methods.





Therefore, actual coal tonnage recovered from identified reserve areas or properties, and costs associated with our mining operations, may vary from estimates. These variations could be material, and therefore could result in decreased profitability.





Our operations could be adversely affected if we are unable to obtain required surety bonds.





Federal and state laws require bonds to secure our obligations to reclaim lands used for mining, to pay federal and state workers’ compensation and to satisfy other miscellaneous obligations. As of June 30, 2009, we had outstanding surety bonds with third parties for post-mining reclamation totaling $60.7 million.
Furthermore, we have surety bonds for an additional $43.8 million in place for our federal and state workers’ compensation obligations and other miscellaneous obligations. Insurance companies have informed us, along with other participants in the coal industry, that they no longer will provide surety bonds for workers’ compensation and other post-employment benefits without collateral. We have satisfied our obligations under these statutes and regulations by providing letters of credit or other assurances
of payment. However, letters of credit can be significantly more costly to us than surety bonds. The issuance of letters of credit under our senior secured credit facility also reduces amounts that we can borrow under our senior secured credit facility for other purposes. If we are unable to secure surety bonds for these obligations in the future, and are forced to secure letters of credit indefinitely, our profitability may be negatively affected.





Our work force could become unionized in the future, which could adversely affect the stability of our production and reduce our profitability.





In 2008, our company owned mines were operated by union-free employees. However, our subsidiaries' employees have the right at any time under the National Labor Relations Act to form or affiliate with a union. Additionally, the current administration has indicated that it will support legislation that may make it easier
for employees to unionize.  Any unionization of our subsidiaries' employees, or the employees of third-party contractors who mine coal for us, could adversely affect the stability of our production and reduce our profitability.





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Legislation has been proposed to the United States Congress to enact a law allowing our workers to choose union representation solely by signing election cards (“Card Check”), which would eliminate the use of secret ballots to elect union representation. While the impact is uncertain, if Card Check legislation
is enacted into law, it will be administratively easier to unionize coal mines and may lead to more coal mines becoming unionized.





We have significant unfunded obligations for long-term employee benefits for which we accrue based upon assumptions, which, if incorrect, could result in us being required to expend greater amounts than anticipated.





We are required by law to provide various long-term employee benefits. We accrue amounts for these obligations based on the present value of expected future costs. We employed an independent actuary to complete estimates for our workers’ compensation and black lung (both state and federal) obligations. At June 30,
2009, the current and non-current portions of these obligations included $31.2 million for coal workers’ black lung benefits and $57.9 million for workers’ compensation benefits.





We use a valuation method under which the total present and future liabilities are booked based on actuarial studies. Our independent actuary updates these liability estimates annually. However, if our assumptions are incorrect, we could be required to expend greater amounts than anticipated. All of these obligations
are unfunded. In addition, the federal government and the governments of the states in which we operate consider changes in workers’ compensation laws from time to time. Such changes, if enacted, could increase our benefit expenses and payments.





We may be unable to adequately provide funding for our pension plan obligations based on our current estimates of those obligations.





We provide benefits under a defined benefit pension plan that was frozen in 2007. As of June 30, 2009, we estimated that our obligation under the pension plan was underfunded by approximately $20.0 million. If future payments are insufficient to fund the pension plan adequately to cover our future pension obligations,
we could incur cash expenditures and costs materially higher than anticipated. The pension obligation is calculated annually and is based on several assumptions, including then prevailing conditions, which may change from year to year. In any year, if our assumptions are inaccurate, we could be required to expend greater amounts than anticipated.





Substantially all of our assets are subject to security interests.





Substantially all of our cash, receivables, inventory and other assets are subject to various liens and security interests under our debt instruments. If one of these security interest holders becomes entitled to exercise its rights as a secured party, it would have the right to foreclose upon and sell, or otherwise transfer,
the collateral subject to its security interest, and the collateral accordingly would be unavailable to us and our other creditors, except to the extent, if any, that other creditors have a superior or equal security interest in the affected collateral or the value of the affected collateral exceeds the amount of indebtedness in respect of which these foreclosure rights are exercised.





We may be unable to comply with restrictions imposed by the terms of our indebtedness, which could result in a default under these instruments.





Our debt instruments impose a number of restrictions on us. A failure to comply with these restrictions could adversely affect our ability to borrow under our revolving credit facility or result in an event of default under our debt instruments. Our debt instruments contain financial and other covenants that create limitations
on our ability to, among other things, borrow the full amount on our revolver, issue letters of credit under our letter of credit facility or incur additional debt, and require us to maintain various financial ratios and comply with various other financial covenants. These most restrictive covenants include the following:





•
The facilities require that we achieve minimum Adjusted EBITDA (as defined in the facilities as "Consolidated EBITDA").  Adjusted EBITDA is measured at the end of each quarter.  We were required to have Adjusted EBITDA for the 12 months ended June 30, 2009 of $61.3 million.  In order
to meet the twelve month Adjusted EBITDA target at June 30, 2009, we needed Adjusted EBITDA of $54.4 million in the six months ended June 30, 2009.   Our Adjusted EBITDA in the six months ended June 30, 2009 was $90.2 million.  The most directly comparable US GAAP financial measure is net income.  For the six months ended June 30, 2009, we had net income of $44.3 million.  Adjusted EBITDA is defined and reconciled to EBITDA and Net Loss under “Reconciliation of Non-GAAP Measures”
in Part I – Item 2 – Management’s Discussion and Analysis of Financial Condition and Results of Operations.•
The facilities require that our Leverage Ratio (as defined in the facilities) not exceed a specified multiple at the end of each quarter.    The Leverage Ratio was permitted to be 1.7x as of June 30, 2009 and decreases further thereafter.  Our Leverage Ratio was 0.6X as of June 30, 2009.  Leverage
Ratio is defined under “Reconciliation of Non-GAAP Measures” in Part I – Item 2 – Management’s Discussion and Analysis of Financial Condition and Results of Operations.


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•
The facilities limit the Capital Expenditures (other than Mandated Capital Expenditures) (as both are defined in the facilities) that we may make or agree to make in any fiscal year.  For the fiscal year ended December 31, 2009, we can not make Capital Expenditures in excess of $69.9 million (including unused carryover
from the prior year).  For the six months ended June 30, 2009, we made Capital Expenditures of $30.0 million (excludes Mandatory Capital Expenditures).





Additional detail regarding the terms of the facilities, including these covenants and the related definitions, can be found in our debt agreements, as amended, that have been filed as exhibits to our SEC filings.





In the event of a default, our lenders could terminate their commitments to us and declare all amounts borrowed, together with accrued interest and fees, immediately due and payable. If this were to occur, we might not be able to pay these amounts or we might be forced to seek amendments to our debt agreements which could
make the terms of these agreements more onerous for us and require the payment of amendment or waiver fees. Failure to comply with these restrictions, even if waived by our lenders, also could adversely affect our credit ratings, which could increase our costs of debt financings and impair our ability to obtain additional debt financing.  While the lenders have, to date, waived any covenant violations and amended the covenants, there is no guarantee they will continue to do so if future violations occur.





Changes in our credit ratings could adversely affect our costs and expenses.





Any downgrade in our credit ratings could adversely affect our ability to borrow and result in more restrictive borrowing terms, including increased borrowing costs, more restrictive covenants and the extension of less open credit. This, in turn, could affect our internal cost of capital estimates and therefore impact
operational decisions.





Defects in title or loss of any leasehold interests in our properties could limit our ability to mine these properties or result in significant unanticipated costs.





We conduct substantially all of our mining operations on properties that we lease. The loss of any lease could adversely affect our ability to mine the associated reserves. Because we generally do not obtain title insurance or otherwise verify title to our leased properties, our right to mine some of our reserves has
been in the past, and may again in the future be, adversely affected if defects in title or boundaries exist. In order to obtain leases or rights to conduct our mining operations on property where these defects exist, we have had to, and may in the future have to, incur unanticipated costs. In addition, we may not be able to successfully negotiate new leases for properties containing additional reserves. Some leases have minimum production requirements. Failure to meet those requirements could result in losses
of prepaid royalties and, in some rare cases, could result in a loss of the lease itself.





Inability to satisfy contractual obligations may adversely affect our profitability.





From time to time, we have disputes with our customers over the provisions of long-term contracts relating to, among other things, coal quality, pricing, quantity and delays in delivery. In addition, we may not be able to produce sufficient amounts of coal to meet our commitments to our customers. Our inability to satisfy
our contractual obligations could result in our need to purchase coal from third party sources to satisfy those obligations or may result in customers initiating claims against us. We may not be able to resolve all of these disputes in a satisfactory manner, which could result in substantial damages or otherwise harm our relationships with customers.





We may be unable to exploit opportunities to diversify our operations.





Our future business plan may consider opportunities other than underground and surface mining in eastern Kentucky and southern Indiana. We will consider opportunities to further increase the percentage of coal that comes from surface mines. We may also consider opportunities to expand both surface and underground mining
activities in areas that are outside of eastern Kentucky and southern Indiana. We may also consider opportunities in other energy-related areas that are not prohibited by the Indenture governing our senior notes due 2012 or other financing agreements. If we undertake these diversification strategies and fail to execute them successfully, our financial condition and results of operations may be adversely affected.





There are risks associated with our acquisition strategy, including our inability to successfully complete acquisitions, our assumption of liabilities, dilution of your investment, significant costs and additional financing required.





We may explore opportunities to expand our operations through strategic acquisitions of other coal mining companies. We currently have no agreement or understanding for any specific acquisition. Risks associated with our current and potential acquisitions include the disruption of our ongoing business, problems retaining
the employees of the acquired business, assets acquired proving to be less valuable than expected, the potential assumption of unknown or unexpected liabilities, costs and problems, the inability of management to maintain uniform standards, controls, procedures and policies, the difficulty of managing a larger company, the risk of becoming involved in labor, commercial or regulatory disputes or litigation related to the new enterprises and the difficulty of integrating the acquired operations and personnel into
our existing business.





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We may choose to use shares of our common stock or other securities to finance a portion of the consideration for future acquisitions, either by issuing them to pay a portion of the purchase price or selling additional shares to investors to raise cash to pay a portion of the purchase price. If shares of our common stock
do not maintain sufficient market value or potential acquisition candidates are unwilling to accept shares of our common stock as part of the consideration for the sale of their businesses, we will be required to raise capital through additional sales of debt or equity securities, which might not be possible, or forego the acquisition opportunity, and our growth could be limited. In addition, securities issued in such acquisitions may dilute the holdings of our current or future shareholders.





Our currently available cash may not be sufficient to finance any additional acquisitions.





We believe that our cash on hand, the availability under our Revolver and cash generated from our operations will provide us with adequate liquidity through 2009.  However, such funds may not provide sufficient cash to fund any future acquisitions. Accordingly, we may need to conduct additional debt
or equity financings in order to fund any such additional acquisitions, unless we issue shares of our common stock as consideration for those acquisitions. If we are unable to obtain any such financings, we may be required to forego future acquisition opportunities.





Our current reserve base in southern Indiana is limited.





Our southern Indiana mining complex currently has rights to proven and probable reserves that we believe will be exhausted in approximately 13.5 years at 2008 levels of production, compared to our current Central Appalachia mining complexes, which have reserves that we believe will last an average of approximately 29.2
years at 2008 levels of production. We intend to increase our reserves in southern Indiana by acquiring rights to additional exploitable reserves that are either adjacent to or nearby our current reserves. If we are unable to successfully acquire such rights on acceptable terms, or if our exploration or acquisition activities indicate that such coal reserves or rights do not exist or are not available on acceptable terms, our production and revenues will decline as our reserves in that region are depleted. Exhaustion
of reserves at particular mines also may have an adverse effect on our operating results that is disproportionate to the percentage of overall production represented by such mines.





Surface mining is subject to increased regulation, and may require us to incur additional costs.





Surface mining is subject to numerous regulations related, among others, to blasting activities that can result in additional costs. For example, when blasting in close proximity to structures, additional costs are incurred in designing and implementing more complex blast delay regimens, conducting pre-blast surveys and
blast monitoring, and the risk of potential blast-related damages increases. Since the nature of surface mining requires ongoing disturbance to the surface, environmental compliance costs can be significantly greater than with underground operations. In addition, the U.S. Army Corps of Engineers imposes stream mitigation requirements on surface mining operations. These regulations require that footage of stream loss be replaced through various mitigation processes, if any ephemeral, intermittent, or perennial
streams are filled due to mining operations. In 2008, the U.S. Department of Interior’s Office of Surface Mining imposed regulatory requirements applicable to excess spoil placement, including the requirement that operators return as much spoil as possible to the excavation created by the mine. These regulations may cause us to incur significant additional costs, which could adversely impact our operating performance.





Risks Relating to our Common Stock





The market price of our common stock has been volatile and difficult to predict, and may continue to be volatile and difficult to predict in the future, and the value of your investment may decline.





The market price of our common stock has been volatile in the past and may continue to be volatile in the future. The market price of our common stock will be affected by, among other things:





•
variations in our quarterly operating results;•
changes in financial estimates by securities analysts;•
sales of shares of our common stock by our officers and directors or by our shareholders;•
changes in general conditions in the economy or the financial markets;•
changes in accounting standards, policies or interpretations;•
other developments affecting us, our industry, clients or competitors; and•
the operating and stock price performance of companies that investors deem comparable to us.





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Any of these factors could have a negative effect on the price of our common stock on the Nasdaq Global Select Market, make it difficult to predict the market price for our common stock in the future and cause the value of your investment to decline.





Dividends are limited by our senior secured credit facility.





We do not anticipate paying any cash dividends on our common stock in the near future. In addition, covenants in our senior secured credit facility and senior notes restrict our ability to pay cash dividends and may prohibit the payment of dividends and certain other payments.





Provisions of our articles of incorporation, bylaws and shareholder rights agreement could discourage potential acquisition proposals and could deter or prevent a change in control.





Some provisions of our articles of incorporation and bylaws, as well as Virginia statutes, may have the effect of delaying, deferring or preventing a change in control. These provisions may make it more difficult for other persons, without the approval of our Board of Directors, to make a tender offer or otherwise acquire
substantial amounts of our common stock or to launch other takeover attempts that a shareholder might consider to be in such shareholder's best interest. These provisions could limit the price that some investors might be willing to pay in the future for shares of our common stock.





We have a shareholder rights agreement which, in certain circumstances, including a person or group acquiring, or the commencement of a tender or exchange offer that would result in a person or group acquiring, beneficial ownership of more than 20% of the outstanding shares of our common stock, would entitle each right
holder, other than the person or group triggering the plan, to receive, upon exercise of the right, shares of our common stock having a then-current fair value equal to twice the exercise price of a right. This shareholder rights agreement provides us with a defensive mechanism that decreases the risk that a hostile acquirer will attempt to take control of us without negotiating directly with our Board of Directors. The shareholder rights agreement may discourage acquirers from attempting to purchase us, which
may adversely affect the price of our common stock.





ITEM 2. UNREGISTEREDSALES OF EQUITY SECURITIES AND USE OF PROCEEDS





ISSUER PURCHASES OF EQUITY SECURITIES





The following table contains information about purchases by us of our equity securities during the period covered by this report.





Period

Total Number
of Shares
Purchased

Average Price
Paid per Share

Total Number of
Shares
Purchased as
Part of Publicly
Announced
Plans or
Programs

Maximum
Number of
Shares that May
Yet Be
Purchased
Under the Plans
or ProgramsMay 1-31, 2009(a)

78,840

$
19.53

N/A

N/A





(a)
The “Total Number of Shares Purchased” column consists of shares that were purchased from participants to satisfy tax withholding obligations in connection with the vesting of restricted shares pursuant to our 2004 Equity Incentive Plan.





ITEM 3. DEFAULTSUNDER SENIOR SECURITIES





None.


ITEM 4. SUBMISSIONOF MATTERS TO A VOTE OF SECURITY HOLDERS





We held our Annual Meeting of Shareholders on June 10, 2009.  There were 27,393,493  shares of common stock, $0.01 par value per share (the “Common Stock”), of James River outstanding and entitled to vote as of April 24, 2009, the record date for the 2009 Annual Meeting of Shareholders.  Each
share of Common Stock entitled the holder thereof to one vote.  A total of 25,738,300 votes (or 92.6% of the total) were cast.  There were no broker non-votes.  The independent inspectors of election certified the following results with respect to each of the following proposals:





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(1)           All of the Board of Directors’ nominees for directors of the corporation were elected.  The elected directors’ terms will expire in 2012.  The directors of the corporation were elected with the following vote:





Director Nominee

Votes For

Votes
WithheldRonald J. FlorJancic

24,973,155

405,145Joseph H. Vipperman

24,969,959

408,341





(2)           The 2004 Equity Incentive Plan (the “Plan”) was amended to increase the shares available under the Plan from 1,650,000 to 2,400,000 with 17,639,388 “Votes For,” 1,025,667 “Votes Against,” 23,303 “Abstentions,”
and 6,689,942 Non Votes.  The “Votes For” represented 94.4% of the shares of Common Stock that voted on this proposal and 64.4% of the shares of Common Stock represented at the meeting .


ITEM 5. OTHERINFORMATION


None.





ITEM 6. EXHIBITS


The following exhibits are filed herewith:

ExhibitCertification of Chief Executive Officer pursuant to Section 302 of theSarbanes-Oxley Act of 2002.

31.1Certification of Chief Accounting Officer pursuant to Section 302 of theSarbanes-Oxley Act of 2002.

31.2Certification of Chief Executive Officer pursuant to Section 906 of theSarbanes-Oxley Act of 2002.

32.1Certification of Chief Accounting Officer pursuant to Section 906 of theSarbanes-Oxley Act of 2002.

32.2











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SIGNATURES





Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.










James River Coal Company


By: /s/  Peter T. Socha
Peter T. Socha
Chairman, President and
Chief Executive Officer



By: /s/ Samuel M. Hopkins II
Samuel M. Hopkins, II
Vice President and
Chief Accounting Officer




August 3, 2009


















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