Perspectives: An Executive Compensation, Benefits & Human Resources Law Update - Fall 2012 | Volume 3, Edition 2
Perspectives: An Executive Compensation, Benefits & Human Resources Law Update - Fall 2011 | Volume 2, Edition 3
HR Considerations When Creating a Spinoff
Pillsbury Honored at 11th Annual M&A Advisor Awards
Landau and Benedict Win Pillsbury's Fifth Straight Burton Award for Excellence in Legal Writing
Employment Tax Audits: Prepare Now for IRS' Ongoing Enforcement Efforts -- What HR Needs to Know about Audit Planning and the Practical Steps to Take if You Uncover Payroll Tax Errors
The New 409A IRS Document Correction Program – How to Cure Your Deferred Compensation Plan 409A Violations
Scott E. Landau
Mr. Landau's practice focuses on representing private equity clients and public companies in acquisitions, divestitures and restructurings within the U.S. and cross-border; structuring LLC profit interests as management incentives; negotiating limited liability company, shareholder and employment agreements; counseling compensation, pension and savings plan committees; advising on issues relating to Internal Revenue Code Section 409A compliance for U.S. and foreign plans, programs and agreements; designing executive compensation and nonqualified plan arrangements; and counseling with respect to corporate governance matters.
Mr. Landau is a former in-house counsel at Bristol-Myers Squibb Company (BMS), where he led the domestic and international Employee Benefits and Compensation Legal Group, which provided legal counsel and strategic support to the company’s Global Benefits, Corporate Treasury and Domestic and Executive Compensation groups. He also served as secretary and lead counsel to the BMS Pension and Savings Plan Committees.
- Handled all executive compensation and employee benefit matters in connection with Atlas Holdings’ (a private equity firm) acquisition of Shorewood Packaging Corporation and its international affiliates from International Paper Company. This acquisition was named 2012 Corporate/Strategic Acquisition of the Year ($100 million - $200 million) by M&A Advisor.
- Represented IMS Health (a portfolio company of TPG) in HR matters in connection with its acquisition of SDI.
- Handled all management issues and HR matters on behalf of New York private equity firm The Wicks Group of Companies, L.L.C. ("The Wicks Group") in its acquisition of Antenna Audio, Inc., Antenna Audio Limited, and their subsidiaries from Discovery Communications. The transaction involved HR issues in France, Germany, Israel, Italy, The Netherlands, Poland, Singapore, Spain, Taiwan, Thailand, the UK and the U.S.
- Handled all management issues and HR matters on behalf of The Wicks Group in its acquisition of Bonded Services Group Limited and its subsidiaries located in the UK, Canada, Hong Kong, France and The Netherlands.
- Represented Bristol-Myers Squibb (BMS) in all HR matters in connection with the separation of the Mead Johnson business from the pharma business and the partial IPO of Mead Johnson Nutrition Company on the NYSE in February 2009. Handled all employee benefit, equity, employment, compensation, pension and work council matters around the world, including issues in the following countries: Argentina, Australia, Belgium, Brazil, Canada, Chile, China, Columbia, Denmark, Dominican Republic, Ecuador, France, Hong Kong, India, Indonesia, Ireland, Italy, Malaysia, Mexico, Netherlands, Norway, Peru, Philippines, Poland, Portugal, Russia, Singapore, Spain, Sweden, Taiwan, Thailand, UK, U.S. and Puerto Rico, Venezuela and Vietnam.
- Handled all HR issues on behalf of NorthgateArinso, a portfolio company of KKR and the world’s leading HR software and services provider, in its $100 million acquisition of the HR management division from Convergys. The transaction involved HR issues in Brazil, Canada, China, France, Hungary, India, Israel, Malaysia, Philippines,Singapore, Spain, the UK and the U.S.
- Represented BMS with respect to the HR matters in the $4.1 billion divestiture of its ConvaTec business. Transaction involved overseeing employee benefit, compensation and employment matters in Australia, Austria, Belgium, Brazil, Canada, Chile, China, Colombia, Czech Republic, Denmark, Dominican Republic, Egypt, Estonia, France, Germany, Hong Kong, Ireland, Italy, Japan, Latvia, Lithuania, Malaysia, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Puerto Rico, Russia, Singapore, South Africa, South Korea, Spain, Sweden, Switzerland, Taiwan, Thailand, Turkey, the UK, U.S. and Venezuela.
- Negotiated and drafted employee benefit representations, warranties and covenants in the $400 million asset purchase agreement of manufacturing assets on behalf of The DIRECTV Group, Inc., as well as a $360 million venture formation agreement. The transactions involved overseeing employee benefit and compensation matters in Brazil, China, Czech Republic, France, Germany, India, Indonesia, Italy, Mexico, Puerto Rico, Russian Federation, South Africa, United Arab Emirates, the U.K. and U.S.
- Negotiated and drafted employee benefit and compensation representations, warranties and covenants and transition service agreements for benefit and HR services in the $525 million divestiture of the BMS Medical Imaging business to a private equity firm; the $660 million divesture of the BMS Consumer Medicines business to another pharmaceutical manufacturer, as well as the acquisition of Adnexus Therapeutics and a manufacturing plant in the Dominican Republic.
- Assessed golden parachute liabilities and advised on the cash and assumptions of stock options and termination of employee stock ownership plan in the $333.7 million merger agreement among a group of banks.
- Handled all employee benefit and executive compensation issues in the conversion of a federal savings bank to a national bank charter.
Executive Compensation, Employment and Data Privacy Matters
- Provided legal counsel with respect to executive compensation and nonqualified plan matters relating to the termination of a chief executive officer and general counsel. Designed and drafted senior executive severance plans, U.S./Puerto Rico and international change in control plans, and senior executive separation agreements.
- Advised companies on European and local employment laws including transfer of employees under the Acquired Rights Directive (ARD) and Transfer of Undertakings (Protection of Employment) Regulations, works council consultations, social plans, severance/termination indemnities, notice periods, and restrictions on transferring employees between two entities within a controlled group
- Handled data privacy matters in 40+ countries. Projects entailed conducting a review of internal data privacy policies and procedures in connection with employee data for compliance with global laws, directives and regulations, conducting a review of all applicable third-party agreements that may relate to processing, exchange or transfer of personnel information (e.g., agreements with payroll providers, employee benefit providers, third party data/application hosting providers, if any) to assess the data privacy policies governing the agreements and compliance with local law, preparing notification and/or consent documents for employees in connection with the transfer of personal data, determining any necessary steps to maintain compliance with the U.S. Safe Harbor requirements for data transfers from the EU to the U.S., preparing notifications or consultations for Works Councils in the EU, drafting necessary data transfer agreements, and preparing filings or notifications for relevant data protection authorities
- Negotiated and drafted over 200 employment agreements.
- Advised companies on SEC and NYSE reporting and disclosure requirements, Sarbanes-Oxley, IRC Section 162(m), IRC Section 280G, employment and change-in-control agreements, senior executive severance arrangements, IRC Section 409A and stock plans. Prepared a performance share plan based on multi-year performance targets in compliance with the exception for performance-based compensation to the limitations on deducting compensation in excess of $1 million for top-executives of a publicly traded company. Drafted non-qualified pension programs and the compensation portions of proxy and registration statements and Form 10-Ks.
Examples of Day-to-Day Qualified & Non-Qualified Plan Work
- Advised and counseled company regarding the Pension Protection Act of 2006, its U.S., P.R. and international pension and welfare plans and fiduciary duties and ensured that benefit and compensation plans and programs comply with the Internal Revenue Code and ERISA and the administration of those plans complies with the company’s corporate governance rules.
- Developed and conducted company's ERISA fiduciary training program and provided an overview of actuarial valuation process to CFO, Treasurer, General Counsel and Senior Vice President, HR.
- Drafted company's Pension and Savings Plans’ investment guidelines, amendments to the qualified plans, non-qualified plans, and employee benefit communications, and internal and external compensation and employee benefit Q&As. Implemented an ERISA class action settlement.
- Negotiated investment management agreements on behalf of company’s Pension and Savings Plan Committees.
- Advised on issues relating to federal tax reporting and withholding requirements for Puerto Rico dual qualified plans and revised Puerto Rico severance plan to ensure compliance with Puerto Rico Act 80.
- Oversaw termination of pension plans outside of the U.S. and distributions of assets.
- Advised companies on issues relating to eligibility, participation and funding requirements, form and manner of benefit distributions, plan administration, ERISA reporting and disclosure requirements, claims procedures, vesting, fiduciary duties, ADP/ACP testing, qualified separate lines of business, claims procedures, vesting, qualified preretirement and joint and survivor annuities, minimum required distributions, QDROs and COBRA.
- Designed and drafted qualified and non-qualified pension and welfare benefit plans and SPDs.
- Legal 500 US, Employee Benefits and Executive Compensation (2012)
U.S. District Courts for the Southern and Eastern Districts
"HR Issues in Global Carve-Outs and Divestitures" - Executive Roundtable hosted by Pillsbury and Ernst & Young (February 25, 2010)
"The Global Employer: How to Handle Expatriation Challenges to, from and within Europe" ABA Section of International Law and AIJA Hamburg, Germany (June 19-20, 2009)
“Mergers & Acquisitions in Latin America: Trends and Challenges” IBA Conference Bogota, Columbia (March 18-20, 2009)
“Benefit Plans in a Tough Economy – Reductions in Force” WEB Program (September 2008)