Exhibit 10.4


 


AMENDMENT TO


CONFIDENTIAL SEPARATION AGREEMENT


 


This AMENDMENT TO
CONFIDENTIAL SEPARATION AGREEMENT (this “Amendment”), is made and
entered into effective as of December 17, 2008, by and between Jim Walter
Resources, Inc. (the “Company”) and Michael Madden (“Employee”).


 


WHEREAS, the Employee and
the Company are parties to a Confidential Separation Agreement dated October 24,
2006 (the “Agreement”), which provides, among other things, for the
Employee to receive severance benefits in the event of Employee’s involuntary
termination without cause; and


 


WHEREAS, the parties desire
to amend the terms of the Agreement in order to comply with the final
regulations promulgated under Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”).


 


NOW, THEREFORE, in
consideration of the mutual promises, covenants and agreements set forth herein
and in the Agreement, the parties hereto agree as follows:


 


1.             Amendment. The sentence
in the Agreement beginning “The severance benefits for which Employee would be
eligible” and the two bullet points thereafter are deleted and replaced with
the following:


 


“The severance benefits for
which Employee would be eligible are:


 


·                  Twelve (12) months of base
salary continuation at the rate in effect at the date of separation from
service (the “Severance Date”); provided that base salary will be
paid in accordance with the payroll dates in effect on the Severance Date, and
such payment dates will not be affected by any subsequent change in payroll
practices.


 


·                  Except as provided below,
continuation of all fringe benefits at the level in effect on the Severance
Date, in each case beginning immediately upon the Severance Date and continuing
until the earlier of (A) the date that is twelve (12) months after the Severance
Date, (B) the last date Employee is eligible to participate in the benefit
under applicable law, or (C) the date Employee is eligible to receive
comparable benefits from a subsequent employer, as determined solely by the
Company in good faith. Such benefits shall be provided to Employee at the same
coverage level and cost to Employee as in effect on the Severance Date.
Notwithstanding the foregoing, Employee’s participation in the Employee Stock
Purchase Plan and long-term disability insurance plan, and Employee’s ability
to make deferrals under the 401(k) plan, will cease effective on the
Severance Date.


 

















 


To the extent required by
law, the Employee shall qualify for COBRA health benefit continuation coverage
beginning upon expiration of the twelve (12) month benefit continuation period
described above.


 


For purposes of enforcing
this subsection, Employee shall be deemed to have a duty to keep the Company
informed as to the terms and conditions of any subsequent employment and the
corresponding benefits earned from such employment, and shall provide, or cause
to provide, to the Company in writing correct, complete, and timely information
concerning the same.


 


·                  Notwithstanding anything to
the contrary in this Agreement, if Employee is a Specified Employee (as defined
below) on the Severance Date, to the extent that Employee is entitled to
receive any benefit or payment under this Agreement that constitutes deferred
compensation within the meaning of Section 409A of the Code before the
date that is six (6) months after the Severance Date, such benefits or
payments shall not be provided or paid to Employee on the date otherwise
required to be provided or paid. Instead, all such amounts shall be accumulated
and paid in a single lump sum to Employee on the first business day after the
date that is six (6) months after the Severance Date (or, if earlier,
within fifteen (15) days following Employee’s date of death). If Employee is
required to pay for a benefit that is otherwise required to be provided by the
Company under this Agreement by reason of this subsection, Employee shall be
entitled to reimbursement for such payments on the first business day after the
date that is six (6) months after the Severance Date (or, if earlier,
within fifteen (15) days following Employee’s date of death). All benefits or
payments otherwise required to be provided or paid on or after the date that is
six (6) months after the Severance Date shall not be affected by this
subsection and shall be provided or paid in accordance with the payment
schedule applicable to such benefit or payment under this Agreement.  Prior to the imposition of the six month
delay as set forth in this subsection, it is intended that (i) each
installment under this Agreement be regarded as a separate “payment” for
purposes of Section 409A of the Code, and (ii) all benefits or
payments provided under this Agreement satisfy, to the greatest extent
possible, the exemptions from the application of Section 409A of the Code
provided under Treasury Regulations Sections 1.409A-1(b)(4) (short-term
deferral) or 1.409A-1(b)(9) (certain separation pay plans). This
subsection is intended to comply with the requirements of Section 409A(a)(2)(B)(i) of
the Code.


 


·                  Employee shall not be
entitled to severance benefits under this Agreement in the event the Employee
experiences a separation from service within twenty-four months  after a Change in Control of Walter
Industries, Inc. (as defined in Employee’s Executive Change in Control
Severance Agreements with Walter Industries, Inc.). Severance benefits
payable upon a separation from service during such period, if any, shall be
determined and paid under such Executive Change in Control Severance
Agreements.


 

















 


For purposes of this
Agreement, the following terms have the meanings set forth below:


 


·                  “Involuntary termination”
means Employee’s involuntary separation from service within the meaning of
Treasury Regulations Section 1.409A-1(n)(1).


 


·                  “Separation from service”
means Employee’s “separation from service” from Employee’s employer within the meaning
of Section 409A(a)(2)(A)(i) of the Code and the default rules of
Treasury Regulations Section 1.409A-1(h). For this purpose, Employee’s “employer”
is the Company  and every entity or
other person which collectively with the Company  constitutes a single service recipient (as that term is
defined in Treasury Regulations Sections 1.409A-1(g)) as the result of the
application of the rules of Treasury Regulations Sections 1.409A-1(h)(3); provided
that an 80% standard (in lieu of the default 50% standard) shall be used for
purposes of determining the service recipient / employer for this purpose.


 


·                  “Specified Employee”
means a “specified employee” of the service recipient that includes the Company
(as determined under Treasury Regulations Sections 1.409A-1(g)) within the
meaning of Section 409A(a)(2)(B)(i) of the Code and Treasury
Regulations Section 1.409A-1(i), as determined in accordance with the
procedures adopted by such service recipient that are then in effect, or, if no
such procedures are then in effect, in accordance with the default procedures
set forth in Treasury Regulations Section 1.409A-1(i).”


 


2.             Miscellaneous. All
capitalized terms that are used but not expressly defined in this Amendment
have the respective meanings ascribed to them in the Agreement. This Amendment
records the final, complete, and exclusive understanding among the parties
regarding the amendment of the Agreement. As amended by this Amendment, the
Agreement is ratified and remains in full force and effect in accordance with
its terms.


 


*     *     *


 


Agreed to and executed to be
effective as of the date first written above.


 


	
  Jim Walter Resources, Inc.

  	
   

  	
  Employee

  
	
   

  	
   

  	
   

  
	
  /s/ George R Richmond

  	
   

  	
  /s/ Michael T. Madden

  
	
  Name:

  	
  George
  R. Richmond

  	
   

  	
  Name:

  	
  Michael T. Madden

  
	
  Title:

  	
  CEO