Until recently, nearly every public company made available a Company Stock Fund investment option under its 401(k) Plan. Those companies were required to register shares available under the 401(k) Plan on Form S-8 and annually file a Form 11-K (among many other requirements). Recently, however, many companies have frozen or terminated the Company Stock Fund investment option under their 401(k) Plans, largely because of the nuisance and ubiquity of “stock drop” lawsuits brought by the strike suit lawyers (A Lurking Trap for Corporate Officers). The question to us is then: “Since we no longer offer a Company Stock Fund investment option under our 401(k) Plan, can we stop filing this darn Form 11-K?”
The answer is not as clear as one might hope. The “governing law” in the issue appears to be limited to a few No-Action letters. Fortunately, The Corporate Counsel, Vol. XXXVI, No. 3, May - June 2011, includes a discussion of the issue. To summarize, if a company no longer allows investments into the 401(k) Plan stock fund as of December 31, 2016 (for example), it could eliminate the need to file a Form 11-K for 2016 by doing the following:
- Before June 30, 2017, file a post-effective amendment to the applicable Form(s) S-8 (also known as “S-8 POS”) for the Plan deregistering the offer and sale of any remaining securities under the S-8(s).
- File a Form 15 terminating the registration of the securities for the Plan under the ’34 Act. This step is arguably not necessary under the no-action letter precedent, but we believe that it is the best practice and expected by the Corp Fin staff.
Not hard to do, but important.