Topic 15: Employee Stock Benefit Plans
15100 Filing Requirements of Form S-8 and Form 11-K
(Last updated: 9/30/2008)
15110 Employee Benefit Plan a Separate Registrant
Where an employee benefit plan (Plan) registers Plan interests as separate securities from the issuer's securities offered under the Plan, the Plan incurs a separate reporting obligation under §15(d) of the Exchange Act. This obligation requires the Plan to file an annual report on Form 11-K. Late or incomplete filings on Form 11-K by the Plan do not adversely affect the issuer's ability to use Form S-3 or rely on Rule 144 because the Plan is a separate issuer.
15120 Financial Statement Requirements
15120.1 The financial statement requirements in Form 11-K are specified by the Form and S-X Article 6A, which follow generally the form and procedures as in Topic 1, Section 1110.
15120.2 In addition, consider ERISA requirements:
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Plans Subject to ERISA |
Plans Not Subject to ERISA |
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Must provide the schedules required by S-X 6A-05. |
15120.3 Audit Requirement
Audit reports on financial statements of the Plan included in a Form 11-K must be issued by a firm registered with the PCAOB.
15120.4 Registrations on Form S-8, for a New Plan
- Any registrant that is required to file reports pursuant to Section 13 or 15(d) of the Exchange Act is eligible to use Form S-8 provided:
- Registrant is current in reporting obligations with respect to all reports and other materials required to be filed during the preceding 12 months, or such shorter time as registrant was required to report under the Exchange Act [General Instruction A.1], and
- Registrant is not a shell company and has not been a shell company for the previous 60 calendar days; and if it has been a shell company at any time previously, has filed current Form 10 information at least 60 calendar days previously reflecting its status as an entity that is not a shell company. [General Instruction A.1] A business combination shell company may use Form S-8 immediately after it ceases to be a shell company and files Form 10 information reflecting its status as an entity that is not a shell company. [General Instruction A.1(a)(7)] (Last updated: 6/30/2013)
- Form S-8 is effective upon filing [Regulation C, Rule 462] and incorporates by reference filings made under Sections 13, 14 and 15(d) of the Exchange Act. Other than a resale prospectus permitted by General Instruction C, no prospectus is filed in Form S-8. Instead, prospectus delivery is accomplished by delivery of the documents specified in Rule 428. There is no separate requirement for financial statements required by Regulation S-X.
- Registrant information is updated by the filing of Exchange Act reports, which are incorporated by reference. Any material changes in the registrant’s affairs required to be disclosed in the registration statement, but not required to be included in a specific Exchange Act report, are reported on Form 8-K pursuant to Item 8.01 of that form. [General Instruction G.2]
- Form S-8 is not subject to the same financial statement updating requirements as other registration statements. For example, the sponsor’s financial statements incorporated by reference into Form S-8 need not comply with the 45-day year-end rule. See Section 1220.3.
- Form S-8 requires the following for both the sponsor (the registrant) and the Plan.
- For the registrant, which must be current in its reporting obligations, incorporate by reference [Item 3 of Form S-8]:
- The registrant's most recent annual report under the Exchange Act (or the registrant's filing under cover of Form 10) or the most recent Rule 424(b) prospectus filed under the Securities Act (if that prospectus contains the registrant's financial statements for the most recent fiscal year),
- All other reports filed by the registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the most recent annual report, Form 10, or prospectus in 15120.4(d)(1)(i) above, and
- All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the filing of a post-effective amendment indicating that all securities offered have been sold or deregistering all securities then remaining unsold.
- For the Plan, if interests in the Plan are being registered [General Instruction A.2]:
- Incorporate the Plan's latest annual report filed pursuant to Section 15(d) (Form 11-K), or
- If the Plan has not previously been subject to the reporting requirements of Section 15(d), file an annual report for the Plan's latest fiscal year, in the form required under Section 15(d) (Form 11-K) at the same time the Form S-8 is filed.
- If the plan has not yet completed its first fiscal year, file an annual report for a period ending not more than 90 days prior to the filing of the registration statement at the same time the Form S-8 registration statement is filed.
- If the plan has not been in existence for at least 90 days prior to the filing date, the requirement to file an employee plan annual report at the same time the Form S-8 registration statement is filed shall not apply. For this purpose (General Instruction A.2), a plan is considered "not to have been in existence for 90 days" if it is either a new plan or for the first-time is offering employer securities as an investment option for employee contributions.
- If financial statements of the plan are required to be filed, they should be prepared in accordance with S-X Article 6A and for the periods specified in S-X 3-01 and 3-02. However, if employer securities are added as an investment option to an existing plan that previously had not been required to report to the SEC and a "new plan" is deemed to have come into existence for purposes of General Instruction A.2., such financial statements need only be presented from the date that the new plan is deemed to have come into existence.
15200 Exchange Act Age of Financial Statements Requirements
(Last updated: 9/30/2008)
15210 General Requirement
Form 11-K is required to be filed within 90 days after the end of the fiscal year of the Plan, except for plans subject to ERISA [General Instruction A to Form 11-K]. If the issuer of the securities offered by the Plan files annual reports on Form 10-K, the Plan may file its financial statements in the issuer's Form 10-K. [Rule 15d-21 of the Exchange Act] If this procedure is followed, the Plan's financial statements (as required by Form 11-K) should be filed within 120 days after the end of the Plan's fiscal year (either as a part of the Form 10-K, or as an amendment to the Form 10-K). However, if the Plan's fiscal year ends within 62 days prior to the end of the fiscal year of the issuer, such information may be filed as a part of the issuer's next annual report.
15220 Plans Subject to ERISA
Form 11-K for a plan subject to ERISA is due within 180 days after the Plan's fiscal year end [General Instruction A to Form 11-K]. If the Plan subject to ERISA elects the option permitted by Rule 15d-21 (see 15210 above), the financial statements required by Form 11-K should be filed within 180 days after the Plan's fiscal year end.
15230 Form 8-K Requirements
Filing the Form 11-K satisfies the Section 15(d) reporting requirements of the plan. Rule 15d-21 provides that separate other reports need not be filed pursuant to Section 15(d) with respect to any plan that elects to rely on the Rule 15d-21 reporting option. See Section 15210. The Division does not object when plans filing Form 11-K do not file any other Exchange Act reports. Accordingly, plans are not subject to any Form 8-K reporting requirements, including Item 4.01 regarding changes in the plan's certifying accountant.