Exhibit 10.4a
AMENDMENT
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT is made and entered into as of
this 31st day of December, 2008, by and between James River Coal
Company, a Virginia corporation (the “Company”) and
Peter T. Socha (“Executive”);
W I T N E S S E T
H:
WHEREAS, the Company and Executive entered into
an Employment Agreement, dated as of May 7, 2004 (the
“Employment Agreement”), providing for the terms and
conditions of Executive’s employment by the Company;
and
WHEREAS, the parties now desire to amend the
Employment Agreement in the manner hereinafter provided to comply
with the requirements of Section 409A of the Internal Revenue Code
of 1986, as amended;
NOW, THEREFORE,
in consideration of the premises and the mutual covenants and
agreements contained herein and in the Employment Agreement, the
parties hereby agree as follows:
1. Sections
4(a)(2)(iii) and (iv) are hereby amended by deleting those sections
in their entirety and substituting the following:
“(iii)
Health and Life Insurance Coverage . To the
extent permitted by the applicable plans, the Company shall provide
Executive (and any spouse or dependents covered at the time of the
Executive’s termination) with medical, dental, and group term
life insurance (pursuant to the same Company plans that are
medical, dental, and group term life insurance that are in effect
for active employees of the Company), for the remaining Term of the
Employment Agreement or for twelve months after the Date of
Termination, whichever is greater (the “Insured
Period”). The coverages provided for in this
section shall be applied against and reduce the period for which
COBRA will be provided.
(1) To
the extent that such medical or dental plan coverage is provided
under a self-insured plan maintained by the Company (within the
meaning of Section 105(h) of the Code):
(X) the
charge to Executive for each month of coverage will equal the
monthly COBRA charge established by the Company for such coverage
in which the Executive or the Executive’s spouse or
dependents (as applicable) are enrolled from time to time, based on
the coverage generally provided to salaried employees, and
Executive will be required to pay such monthly charge in accordance
with the Company’s standard COBRA premium payment
requirements; and
(Y) not
later than 10 days after Executive’s Date of Termination
(subject to delay under Section 7 below), the Company will pay
Executive a lump sum in cash equal, in the aggregate, to the
monthly COBRA charge established by the Company for the coverage
being provided on Executive’s Date of Termination to the
Executive and any covered dependents, less the amount Executive was
paying for such coverage on the Date of Termination, for each month
of coverage in the Insured Period. In calculating the
total lump sum amount payable for the Insured Period, the
Company’s monthly COBRA charge will be increased by 10% on
each January in the projected payment period and such increased
amount shall apply to each successive month in the calendar year in
which the increase became applicable.
(2) To
the extent that such medical or dental plan coverage is provided
under a fully-insured medical reimbursement plan (within the
meaning of Section 105(h) of the Code), there will be no charge to
Executive for such coverage.
(3) For
purposes of any individual executive life insurance policy (or
policies) maintained by the Company for Executive, the Company
shall pay the Executive a lump sum payment in cash equal to the
monthly premium charges as of the Date of Termination for such
policy (or policies) multiplied by the number of months in the
Insured Period. Such payment will be made within ten
days of the Date of Termination.
(iv) Executive
will become fully vested in any amounts credited under a deferred
compensation plan in which Executive participates and
Executive’s benefits under such plan will be paid in
accordance with the terms of such plan, including, as applicable,
the six-month delay referenced in Section 7
below.”
2. Section
4(d) is hereby amended by deleting that section in its entirety and
substituting the following:
