EXHIBIT 99.8
FIRST AMENDMENT OF
THE LAIDLAW INC. U.S. SUPPLEMENTAL
EXECUTIVE RETIREMENT ARRANGEMENT
THIS FIRST AMENDMENT is made on July 27, 2006, by LAIDLAW INTERNATIONAL,
INC., a corporation duly organized and existing under the laws of the State of
Delaware (the "Company").
W I T N E S S E T H:
WHEREAS, the Company maintains the Laidlaw Inc. U.S. Supplemental
Executive Retirement Arrangement (the "Arrangement"), effective as of April 1,
1995, for the purpose of providing supplemental benefits to designated
employees;
WHEREAS, the Company wishes to amend the Arrangement to primarily comply
with, and make changes permitted by, the American Jobs Creation Act of 2004 and
the rules and regulations promulgated thereunder ("AJCA") and to make other
miscellaneous changes to the Arrangement;
WHEREAS, to the extent applicable, this amendment is intended as good
faith compliance with the requirements of the AJCA and shall be further amended,
if necessary, upon the release of final Treasury regulations to be issued under
Section 409A of the Internal Revenue Code; and
WHEREAS, this amendment shall supersede the provisions of the Arrangement
to the extent those provisions are inconsistent with the provisions of this
amendment.
NOW, THEREFORE, the Company does hereby amend the Arrangement, effective
as of January 1, 2005, except as otherwise provide herein, as follows:
1. By deleting, effective June 23, 2003, Section 1.01 in its entirety and by
substituting therefor the following:
"1.01 Laidlaw International, Inc. maintains the Laidlaw International,
Inc. U.S. Supplemental Executive Retirement Arrangement (the
`Arrangement') for the purpose of providing supplemental benefits as
hereinafter described."
2. By deleting, effective June 23, 2003, Section 2.03 in its entirety and by
substituting therefor the following:
"2.03 AFFILIATED COMPANY means any subsidiary company of Laidlaw
International, Inc. or any company related to or associated with
Laidlaw International, Inc."
3. By deleting Section 2.04 in its entirety and by substituting therefor the
following:
"2.04 ARRANGEMENT means this Laidlaw International, Inc. U.S. Supplemental
Executive Retirement Arrangement, as amended or restated from time
to time."
4. By deleting, effective June 23, 2003, Section 2.06 in its entirety and by
substituting therefor the following:
"2.06 BOARD OF DIRECTORS means the board of directors of Laidlaw
International, Inc., or such Committee to which such board of
directors may delegate its authority in respect of this
Arrangement."
5. By deleting Section 2.07 in its entirety and by substituting therefor the
following:
"2.07 CANADIAN ARRANGEMENT means the Laidlaw International, Inc. Canadian
Supplemental Executive Retirement Arrangement, as amended or
restated from time to time."
6. By deleting, June 23, 2003, Section 2.08 in its entirety and by substituting
therefor the following:
"2.08 COMPANY means Laidlaw International, Inc. and any related,
affiliated, associated or subsidiary company which may be designated
as a participating employer by the Company and which has agreed to
participate in the Arrangement. Where any reference in the
Arrangement is made to any action to be taken, consent, approval or
opinion to be given, discretion or decision to be exercised by the
Company, "Company" means Laidlaw International, Inc. acting through
the Board of Directors or any person authorized by the Board of
Directors for purposes of the Arrangement."
7. By deleting, effective April 1, 1995, Section 2.12 in its entirety and by
substituting therefor the following:
"2.12 EMPLOYEE means any person in full-time employment with the Company
who is a resident of the United States."
8. By deleting Section 2.15 in its entirety and by substituting therefor the
following:
"2.15 INTERNAL REVENUE CODE MAXIMUM COMPENSATION LIMIT at a particular
time means the `compensation limit' as defined under Section
401(a)(17) of the Internal Revenue Code of 1986 and the regulations
thereunder, as amended from time to time and adjusted for
cost-of-living increases in accordance with Section 401(a)(17)(B) of
the Internal Revenue Code of 1986. As at January 1, 2006, the
"compensation limit" is $220,000."
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9. By adding a new Section 2.17A, as follows:
"2.17A SPECIFIED EMPLOYEE shall mean a Member who is a key employee (as
defined in Section 416(i) of the Internal Revenue Code without
regard to Section 416(i)(5)) of the Company or any entity with whom
the Company would be considered a single employer under Section
414(b) or 414(c) of the Internal Revenue Code whose stock is
publicly traded on an established securities market or otherwise.
For this purpose, a Member is a key employee if the Member meets the
requirements of Section 416(i)(1)(A)(i), (ii) or (iii) of the
Internal Revenue Code (applied in accordance with the regulations
thereunder and disregarding Section 416(i)(5)) at any time during
the twelve (12) month period ending on December 31. Notwithstanding
the foregoing, a Member who is a key employee determined under the
preceding sentences will be deemed to be a Specified Employee solely
for the period of April 1 through March 31 following such December
31 or as otherwise required by Section 409A of the Internal Revenue
Code."
10. By adding a new paragraph to the end of Section 4.02, as follows:
"`Termination of employment' as used in this Arrangement shall mean
`separation from service' within the meaning of Section 409A of the
Internal Revenue Code and any guidance issued thereunder. No termination
of employment shall occur while the Member is on military leave, sick
leave, or other bona fide leave of absence if the period of such leave
does not exceed six months, or, if longer, so long as the Member's right
to reemployment is provided either by statute or contract. If the period
of leave exceeds six months and the Member's right to reemployment is not
provided either by statute or by contract, the employment relationship is
deemed to terminate on the first date immediately following such six-month
period."
11. By deleting Section 4.03 in its entirety and by substituting therefor the
following:
"4.03 EARLY RETIREMENT
(a) EARLY RETIREMENT BENEFIT AND COMMENCEMENT
A Member who retires from employment with the Company before
attainment of age 65 and who elects to have this provision apply to
him will be entitled to an annual supplemental benefit, commencing
on the first day of the month co-incident with or next following the
later of such Member's actual retirement date and such other date
selected by him that is prior to the Member's attainment of age 65
and on or after attainment of age 60, equal to the supplemental
benefit calculated according to the formula in Section 4.01 and
based on Vested Credited Service and the Member's Final Average
Earnings at the Member's actual retirement date. Such supplemental
benefits will be reduced by 0.1667% for each complete month that the
date of commencement of payment of benefits precedes the Member's
attainment of age 65.
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(b) EARLY RETIREMENT ELECTION
A Member can elect to have this provision apply to him by giving
written notice to the Company of such election, which notice must be
received by the Company by the thirtieth (30th) day following the
date he or she is designated as eligible to participate in the
Arrangement under Article 3. Notwithstanding the foregoing, for an
Employee or former Employee who has been designated as Member prior
to December 2, 2006, the written notice of such election must be
received by the Company by December 31, 2006.
(c) DEFERRAL OF EARLY RETIREMENT COMMENCEMENT DATE
A Member may extend the early retirement commencement date by filing
with the Company a written change election in such form as the
Company shall specify; provided, however, that (i) such election
must be made at least 12 months prior to the date the previously
elected early retirement commencement date is to occur; (ii) such
election may not take effect until at least 12 months after the date
on which the election is made; and (iii) the new retirement
commencement date must be no earlier than five (5) years from the
previously elected early retirement commencement date."
12. By adding a new Section 4.05, as follows:
"4.05 SUSPENSION OF CERTAIN BENEFITS FOR SECTION 409A COMPLIANCE
Notwithstanding any other provision of the Arrangement to the
contrary, any payment of benefits due to, or on behalf of, a Member
who is a Specified Employee during the six-month period immediately
following his termination of employment (or, if earlier, his death)
shall be suspended and such suspended amounts shall be paid in a
lump sum as soon as practicable following the expiration of such
six-month period (or, if earlier, his death)."
13. By adding a new Section 8.17, as follows:
"8.17 CLAIMS PROCEDURES
(a) NOTICE OF DENIAL
If a Member or a Beneficiary is denied a claim for benefits
under the Plan, the Company shall provide to the claimant
written notice of the denial within ninety (90) days
(forty-five (45) days with respect to a denial of any claim
for benefits due to the Member's Total Disability) after the
Company receives the claim, unless special circumstances
require an extension of time for processing the claim. If such
an extension of time is required, written notice of the
extension shall be furnished to the claimant
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prior to the termination of the initial 90-day or 45-day
period, as applicable. In no event shall the extension exceed
a period of ninety (90) days (thirty (30) days with respect to
a claim for benefits due to the Member's Total Disability)
from the end of such initial period. With respect to a claim
for benefits due to the Member's Total Disability, an
additional extension of up to thirty (30) days beyond the
initial 30-day extension period may be required for processing
the claim. In such event, written notice of the extension
shall be furnished to the claimant within the initial 30-day
extension period. Any extension notice shall indicate the
special circumstances requiring the extension of time, the
date by which the Company expects to render the final
decision, the standards on which entitlement to benefits are
based, the unresolved issues that prevent a decision on the
claim and the additional information needed to resolve those
issues.
(b) CONTENTS OF NOTICE OF DENIAL
If a Member or Beneficiary is denied a claim for benefits
under a Plan, the Company shall provide to such claimant
written notice of the denial which shall set forth:
(i) the specific reasons for the denial;
(ii) specific references to the pertinent provisions of the
Plan on which the denial is based;
(iii) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is
necessary;
(iv) an explanation of the Plan's claim review procedures,
and the time limits applicable to such procedures,
including a statement of the claimant's right to bring a
civil action under Section 502(a) of ERISA following an
adverse benefit determination on review;
(v) in the case of a claim for benefits due to the Member's
Total Disability, if an internal rule, guideline,
protocol or other similar criterion is relied upon in
making the adverse determination, either the specific
rule, guideline, protocol or other similar criterion; or
a statement that such rule, guideline, protocol or other
similar criterion was relied upon in making the decision
and that a copy of such rule, guideline, protocol or
other similar criterion will be provided free of charge
upon request; and
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(vi) in the case of a claim for benefits due to the Member's
Total Disability, if a denial of the claim is based on a
medical necessity or experimental treatment or similar
exclusion or limit, an explanation of the scientific or
clinical judgment for the denial, an explanation
applying the terms of the Plan to the claimant's medical
circumstances or a statement that such explanation will
be provided free of charge upon request.
(c) RIGHT TO REVIEW
After receiving written notice of the denial of a claim, a
claimant or his or her representative shall be entitled to:
(i) request a full and fair review of the denial of the
claim by written application to the Company (or Appeals
Fiduciary in the case of a claim for benefits due to the
Member's Total Disability);
(ii) request, free of charge, reasonable access to, and
copies of, all documents, records, and other information
relevant to the claim;
(iii) submit written comments, documents, records, and other
information relating to the denied claim to the Company
or Appeals Fiduciary, as applicable; and
(iv) a review that takes into account all comments,
documents, records, and other information submitted by
the claimant relating to the claim, without regard to
whether such information was submitted or considered in
the initial benefit determination.
(d) APPLICATION FOR REVIEW
(i) If a claimant wishes a review of the decision denying
his or her claim to benefits under the Plan, other than
a claim described in Section 8.17(d)(ii), he or she must
submit the written application to the Company within
sixty (60) days after receiving written notice of the
denial.
(ii) If the claimant wishes a review of the decision denying
his claim to benefits under the Plan due to a Member's
Total Disability, he must submit the written application
to the Appeals Fiduciary within one hundred eighty (180)
days after receiving written notice of the denial. With
respect to any such claim, in deciding an appeal of any
denial based in whole or in part on a medical judgment
(including determinations with regard to whether a
particular treatment, drug, or other item is
experimental,
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investigational, or not medically necessary or
appropriate), the Appeals Fiduciary shall:
(1) consult with a health care professional who has
appropriate training and experience in the field
of medicine involved in the medical judgment; and
(2) identify the medical and vocational experts whose
advice was obtained on behalf of the Plan in
connection with the denial without regard to
whether the advice was relied upon in making the
determination to deny the claim.
Notwithstanding the foregoing, the health care
professional consulted pursuant to this Section
8.17(d)(ii) shall be an individual who was not consulted
with respect to the initial denial of the claim that is
the subject of the appeal or a subordinate of such
individual.
(e) HEARING
Upon receiving a written application for review, pursuant to
Section 8.17(d), the Company or Appeals Fiduciary, as
applicable, may schedule a hearing for purposes of reviewing
the claimant's claim, which hearing shall take place not more
than thirty (30) days from the date on which the Company or
Appeals Fiduciary received such written application for
review.
(f) NOTICE OF HEARING
At least ten (10) days prior to the scheduled hearing, the
claimant and his or her representative designated in writing
by him or her, if any, shall receive written notice of the
date, time, and place of such scheduled hearing. The claimant
or his or her representative, if any, may request that the
hearing be rescheduled, for his or her convenience, on another
reasonable date or at another reasonable time or place.
(g) COUNSEL
All claimants requesting a review of the decision denying
their claim for benefits may employ counsel for purposes of
the hearing.
(h) DECISION ON REVIEW
No later than sixty (60) days (forty-five (45) days with
respect to a claim for benefits due to the Member's Total
Disability) following the receipt of the written application
for review, the Company or the Appeals Fiduciary,
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as applicable, shall submit its decision on the review in
writing to the claimant involved and to his representative, if
any, unless the Company or Appeals Fiduciary determines that
special circumstances (such as the need to hold a hearing)
require an extension of time, to a day no later than one
hundred twenty (120) days (ninety (90) days with respect to a
claim for benefits due to the Member's Total Disability) after
the date of receipt of the written application for review. If
the Company or Appeals Fiduciary determines that the extension
of time is required, the Company or Appeals Fiduciary shall
furnish to the claimant written notice of the extension before
the expiration of the initial sixty (60) day (forty-five (45)
days with respect to a claim for benefits due to the Member's
Total Disability) period. The extension notice shall indicate
the special circumstances requiring an extension of time and
the date by which the Company or Appeals Fiduciary expects to
render its decision on review. In the case of a decision
adverse to the claimant, the Company or Appeals Fiduciary
shall provide to the claimant written notice of the denial
which shall include:
(i) the specific reasons for the decision;
(ii) specific references to the pertinent provisions of the
Plan on which the decision is based;
(iii) a statement that the claimant is entitled to receive,
upon request and free of charge, reasonable access to,
and copies of, all documents, records, and other
information relevant to the claimant's claim for
benefits;
(iv) an explanation of the Plan's claim review procedures,
and the time limits applicable to such procedures,
including a statement of the claimant's right to bring
an action under Section 502(a) of ERISA following the
denial of the claim upon review;
(v) in the case of a claim for benefits due to the Member's
Total Disability, if an internal rule, guideline,
protocol or other similar criterion is relied upon in
making the adverse determination, either the specific
rule, guideline, protocol or other similar criterion; or
a statement that such rule, guideline, protocol or other
similar criterion was relied upon in making the decision
and that a copy of such rule, guideline, protocol or
other similar criterion will be provided free of charge
upon request;
(vi) in the case of a claim for benefits due to a Member's
Total Disability, if a denial of the claim is based on a
medical necessity or experimental treatment or similar
exclusion or limit, an explanation of the scientific or
clinical judgment for the denial, an
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explanation applying the terms of the Plan to the
claimant's medical circumstances or a statement that
such explanation will be provided free of charge upon
request; and
(vii) in the case of a claim for benefits due to the Member's
Total Disability, a statement regarding the availability
of other voluntary alternative dispute resolution
options.
(i) APPEALS FIDUCIARY
For purposes of this Section 8.17, the Appeals Fiduciary means
an individual or group of individuals appointed to review
appeals of claims for benefits payable due to the Member's
Total Disability. The Company shall appoint the Appeals
Fiduciary. The Appeals Fiduciary shall be required to review
claims for benefits payable due to the Member's Total
Disability that are initially denied by the Company and for
which the claimant requests a full and fair review pursuant to
this Section 8.17. The Appeals Fiduciary may not be the
individual who made the initial adverse determination with
respect to any claim he reviews and may not be a subordinate
of any individual who made the initial adverse determination.
The Appeals Fiduciary may be removed in the same manner in
which appointed or may resign at any time by written notice of
resignation to the Company. Upon such removal or resignation,
the Company shall appoint a successor."
Except as specifically amended hereby, the Arrangement shall remain in
full force and effect prior to this First Amendment.
IN WITNESS WHEREOF, the Company has caused this First Amendment to be
executed on the day and year first above written.
LAIDLAW INTERNATIONAL, INC.
By: /s/ KEVIN BENSON
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Title: President and Chief Executive Officer
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