The plan financial statements should be prepared in accordance with the applicable provisions of Regulation S-X. S-X Article 6A prescribes the form and content of financial statements to be filed for employee stock purchase, savings and similar plans. S-X Article 6A states that, in addition to the special requirements set forth therein, such financial statements must be prepared in accordance with the requirements of the general rules in S-X Articles 1, 2, 3, 3A and 4. In the event of any conflict between the general rules and the special rules of S-X Article 6A, the requirements of the special rule will prevail.

The following plan financial statements should be filed:

S-X 6A-05 also specifies certain schedules which must be filed in support of the plan’s basic financial statements (see SEC FRM 15120.2). The schedules must be audited if the related plan financial statements are audited.

The auditor must be registered with the PCAOB, and the audit must be performed in accordance with PCAOB standards. See SEC FRM 4110.5 #9.

Yes. See SEC 3130.32 for disclosure requirements of certain tax penalties required by the American Jobs Creation Act of 2004 applicable to Form 11-K.

Under most circumstances, the Form 11-K will be automatically incorporated by reference into an already effective registration statement on Form S-8 (see SEC 2125). In this instance the plan would need to file an accountant’s consent as an exhibit to the Form 11-K. See the note to Required Information of Form 11-K. See also SEC 2400 for a discussion of accountants’ consents.

Yes. S-X 2-07 does not explicitly state to whom the auditor should address the required communications with respect to Form 11-K filings. Unless there is an existing designated committee of the plan sponsor’s board of directors that is responsible for oversight of the plan, the required communications should be made to the plan administrator, chairperson of the employee benefit plan committee, or other party responsible for oversight of the plan. If the changes in critical accounting policies and practices or the alternative accounting treatments relate to material or highly judgmental matters, the auditor should also consider discussing these matters directly with the plan sponsor’s audit committee. On an ongoing basis, auditors should agree with the plan sponsor’s audit committee and the client who should receive required communications related to the plan.

No. The disclosures required by S-K 308 are not required by Form 11-K. See Exchange Act Forms CDI 106.02 and Note to SEC FRM 4310.1.

Generally, no. An employee benefit plan is considered to be a separate issuer for purposes of the Securities Act and filings under the Exchange Act. Late or incomplete filings on Form 11-K by the employee benefit plan do not adversely affect the plan sponsor’s ability to use Form S-3 (or to rely on Securities Act Rule 144) because the employee benefit plan is a separate issuer. See SEC FRM 15110.

Generally, no. See Exchange Act Rules CDI 183.01.

Yes, after July 11, 2025. In SEC Release No. 33-11070, Updating EDGAR Filing Requirements and Form 144 Filings (SEC Release 33-11070), the Commission adopted a requirement that the financial statements and schedules included in Form 11-K be presented using Inline XBRL, subject to a three-year transition period. See General Instruction F of Form 11-K and Section II.F of Release 33-11070.