As filed with the Securities and Exchange Commission on April 23, 2002
Registration No. 333-84080
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COTT BEVERAGES INC.
AND OTHER REGISTRANTS
(SEE TABLE OF CO-REGISTRANTS BELOW)
(Exact name of registrant as specified in its charter)
Georgia 2086 58-1947565
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation of Organization) Classification Code Number) Identification Number)
5405 CYPRESS CENTER DRIVE, SUITE 100
TAMPA, FLORIDA 33609
(813) 342-2500
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Mark R. Halperin, Esq.
Cott Corporation
207 Queen's Quay West, Suite 340
Toronto, Ontario Canada M5J 1A7
(416) 203-5604
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
COPY TO:
H. John Michel, Jr.
Drinker Biddle & Reath LLP
One Logan Square, 18th & Cherry Streets
Philadelphia, Pennsylvania 19103-6996
(215) 988-2700
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable following the effectiveness of this registration statement and
satisfaction of all other conditions to the exchange offer described in the
prospectus included herein.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
TABLE OF CO-REGISTRANTS
Exact Name of State or Other Primary standard
registrant Jurisdiction of Industrial I.R.S. Employer
As specified in its Incorporation or Classification Identification
charter Organization Number Number
Cott Corporation Canada 2086 None
Cott Holdings Inc. Delaware & Nova 2086 58-2020185
Scotia
Cott USA Corp. Georgia 2086 58-1947564
Cott Vending Inc. Delaware 2086 80-0003395
Interim BCB, LLC Delaware 2086 None
THE ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF EACH OF THE CO-REGISTRANT'S PRINCIPLE EXECUTIVE OFFICES IS C/O COTT
CORPORATION 207 QUEEN'S QUAY WEST, SUITE 340, TORONTO, ONTARIO M5J 1A7, (416)
203-3898.
THE NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF THE AGENT FOR SERVICE OF EACH OF THE CO-REGISTRANTS IS MARK R.
HALPERIN, ESQ., C/O COTT CORPORATION, 207 QUEEN'S QUAY WEST, SUITE 340,
TORONTO, ONTARIO CANADA M5J 1A7.
EXPLANATORY NOTE
The Registrants are filing this Amendment solely to include certain
exhibits to this Registration Statement. No other changes are made hereby.
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Number Description
- ------ -----------
2.1+ Asset Purchase Agreement by and between Concord Beverage
Company and Concord Beverage LP, dated as of October 18, 2000
(incorporated by reference to Exhibit 2.1 to Cott
Corporation's Form 8-K dated as of October 18, 2000).
2.2+ Agreement of Sale by and between Concord Beverage Company and
Concord Beverage LP, dated as of October 18, 2000
(incorporated by reference to Exhibit 2.2 to Cott
Corporation's Form 8-K dated as of October 18, 2000).
2.3 Acquisition Agreement, dated November 20, 1997, among Cott UK
Limited, Cott Corporation and the several persons listed in
Schedule 1 to the Agreement relating to the
acquisition of Hero Drinks Group (U.K.) Limited (incorporated
by reference to Exhibit 10.2 to Cott Corporation's Form 10-K
dated March 31, 2000).
2.4 (*) Asset Acquisition and Facility Use Agreement, dated April
13, 2000, between BCB USA Corp. (since renamed "Cott Beverages
Inc.") and Schmalbach-Lubeca Plastic Containers USA, Inc.
relating to the sale of the PET perform blow molding operation
(incorporated by reference to Exhibit 10.1 to Cott
Corporation's Form 10-Q dated May 16, 2000).
2.5+ (*) Asset Purchase Agreement by and among Royal Crown Company,
Inc., Cott Corporation and BCB USA Corp. dated as of June 13,
2001. (filed herewith).
3.1 Articles of Incorporation of Cott Corporation (incorporated by
reference to Exhibit 3.1 to Cott Corporation's Form 10-K dated
March 31, 2000).
3.2 By-laws of Cott Corporation (incorporated by reference to
Exhibit 3.2 to Cott Corporation's Form 10-K dated March 8,
2002).
3.3++ Articles of Incorporation of Cott Beverages Inc.
3.4++ Bylaws of Cott Beverages Inc. (formerly BCB USA Corp. and
prior to that Cott Beverages USA Inc.).
3.5++ Amended and Restated Certificate of Incorporation of Cott
Holdings Inc.
3.6++ Memorandum of Association and Amended and Restated Certificate
of Incorporation of Cott Holdings Inc.
3.7++ Articles of Association and Bylaws of Cott Holdings Inc.
3.8++ Articles of Incorporation of Cott USA Corp., as amended.
3.9++ Bylaws of Cott USA Corp.
3.10++ Certificate of Incorporation of Cott Vending Inc.
3.11++ Bylaws of Cott Vending Inc.
3.12++ Certificate of Formation of Interim BCB, LLC.
3.13++ Amended and Restated Operating Agreement of Interim BCB, LLC
(formerly Destination Products International, LLC).
4.1 Subscription Agreement dated as of June 12, 1998 for
Convertible Participating Voting Second Preferred Shares,
Series 1 of Cott Corporation (as issuer) (incorporated by
reference to Exhibit 4.2 to Cott Corporation's Form 10-K dated
March 31, 2000).
4.2 Letter Agreement dated as of November 3, 1999, regarding
standstill provisions between Cott Corporation and the Thomas
H. Lee Company (incorporated by reference to Exhibit 4.3 to
Cott Corporation's Form 10-K dated March 31, 2000).
4.3 Indenture dated as of December 21, 2001, between Cott
Beverages Inc. (as issuer) and HSBC Bank USA (as trustee)
(incorporated by reference to Exhibit 10.5 to Cott
Corporation's Form 10-K dated March 8, 2002).
4.4 Registration Rights Agreement dated as of December 21, 2001,
among Cott Beverages Inc., the Guarantors named therein and
Lehman Brothers Inc., BMO Nesbitt Burns Corp. and CIBC World
Markets Corp. (incorporated by reference to Exhibit 10.5 to
Cott Corporation's Form 10-K dated March 8, 2002).
5.1++ Opinion of Drinker Biddle & Reath LLP.
10.1 (*) Termination Agreement, dated November 1, 1999, among Cott
Beverages USA, Inc. (now "Cott Beverages Inc.") and Premium
Beverages Packers, Inc. (incorporated by reference to Exhibit
10. 1 to Cott Corporation's Form 10-K dated March 31, 2000).
10.2 (*) Supply Agreement, dated December 21, 1998, among Wal-Mart
Stores, Inc. and Cott Beverages USA, Inc. (now "Cott Beverages
Inc.") (filed herewith).
10.3 (**) Employment Agreement of Frank E. Weise III dated June 11,
1998 (incorporated by reference to Exhibit 10.5 to Cott
Corporation's Form 10-K dated March 31, 2000), as amended July
3, 2001 (incorporated by reference to Exhibit 10.2 of Cott
Corporation's Form 10-Q for the period ended June 30, 2001).
10.4 (**) Employment Agreement of Mark Benadiba dated October 7,
1997, as amended December 19, 1997 (incorporated by reference
to Exhibit 10. 7 to Cott Corporation's Form 10-K dated March
31, 2000), and as further amended September 25, 2000
(incorporated by reference to Exhibit 10.6 to Cott
Corporation's Form 10-K dated March 7, 2001).
10.5 (**) Employment Agreement of Paul R. Richardson dated August
23, 1999 (incorporated by reference to Exhibit 10. 8 to Cott
Corporation's Form 10-K dated March 31, 2000), as amended
February 18, 2002 (incorporated by reference to Exhibit 10.5
to Cott Corporation's Form 10-K dated March 8, 2002).
10.6 (**) Employment Agreement of Raymond P. Silcock dated August
17, 1998 (incorporated by reference to Exhibit 10.9 to Cott
Corporation's Form 10-K dated March 31, 2000).
10.7 (**) Employment Agreement of Mark R. Halperin dated July 14,
2000 (incorporated by reference to Exhibit 10.10 to Cott
Corporation's Form 10-K dated March 8, 2002).
10.8 (**) Amended 1999 Executive Incentive Share Compensation Plan
effective January 3, 1999 (incorporated by reference to
Exhibit 10.8 to Cott Corporation's Form 10-K for the year
ended December 30, 2000).
10.9 (**) 2000 Executive Incentive Share Compensation Plan
effective January 2, 2001 (incorporated by reference to
Exhibit 10.9 to Cott Corporation's Form 10-K for the year
ended December 30, 2000).
10.10 (**) 2001 Executive Incentive Share Compensation Plan
effective January 2, 2002 (incorporated by reference to
Exhibit 10.10 to Cott Corporation's Form 10-K dated March 8,
2002).
10.11 (**) Second Canadian Employee Share Purchase Plan effective
January 2, 2001 (incorporated by reference to Exhibit 10.11 to
Cott Corporation's Form 10-K for the year ended December 30,
2000).
10.12 Share Plan for Non-Employee Directors effective January 2,
2002 (incorporated by reference to Exhibit 10.12 to Cott
Corporation's Form 10-K dated March 8, 2002).
10.13 (*) Credit Agreement dated as of July 19, 2001 between BCB USA
Corp. (since renamed "Cott Beverages Inc."), Cott Corporation
and the Several Lenders, Lehman Brothers Inc., First Union
National Bank, Bank of Montreal and Lehman Commercial Paper,
Inc. (filed herewith), as amended December 13, 2001 and
December 19, 2001 (incorporated by reference to Exhibit 10.13
to Cott Corporation's Form 10-K dated March 8, 2002).
10.14 Services Agreement among Cott Corporation, Deuteronomy Inc.
and Don Watt consulting agreement dated June 1, 1999
(incorporated by reference to Exhibit 10.14 to Cott
Corporation's Form 10-K dated March 8, 2002).
12.1++ Computation of Ratios of Earnings to Fixed Charges.
21.1++ List of Subsidiaries of Cott Corporation and Cott Beverages
Inc.
23.1++ Consent of Independent Accountants.
23.2 Consent of Drinker, Riddle & Reath LLP (included in Exhibit
5.1 above).
25.1++ Form T-1, Statement of Eligibility under the Trust Indenture
Act of 1939 of HSBC Bank USA.
99.1++ Form of Letter of Transmittal.
- ------------------
+ In accordance with Item 601(b)(2) of Regulation S-K, the exhibits to this
Exhibit have been omitted and a list briefly describing those exhibits is
contained in the Exhibit. The Registrant will furnish a copy of any
omitted exhibit to the Commission upon request.
(++) Document has previously been filed.
(*) Document is subject to request for confidential treatment.
(**) Indicates a management contract or compensatory plan.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrants
have duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Toronto, Canada on April 23, 2002.
COTT BEVERAGES INC.
COTT CORPORATION
COTT USA CORP.
COTT VENDING INC.
INTERIM BCB, LLC
By: /s/ Frank E. Weise III
-----------------------------------
Frank E. Weise III
President
COTT HOLDINGS INC.
By: /s/ Colin D. Walker
-----------------------------------
Colin D. Walker
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on such dates indicated.
With respect to Cott Beverages Inc. and Cott USA Corp.:
/s/ Frank E. Weise III President and Chief Executive Date: April 23, 2002
------------------------------------ Officer and Director
Frank E. Weise III (Principal Executive Officer)
/s/ Raymond P. Silcock Executive Vice President and Date: April 23, 2002
--------------------------- Director
Raymond P. Silcock (Principal Financial Officer)
/s/ Mark R. Halperin Senior Vice President, Secretary Date: April 23, 2002
------------------------------------ and Director
Mark R. Halperin
With respect to Cott Holdings Inc.:
/s/ Colin D. Walker President Date: April 23, 2002
------------------------------------ (Principal Executive Officer)
Colin D. Walker
/s/ Raymond P. Silcock Executive Vice President Date: April 23, 2002
--------------------------- (Principal Financial Officer)
Raymond P. Silcock
/s/ Mark R. Halperin Senior Vice President, Secretary Date: April 23, 2002
------------------------------------ and Director
Mark R. Halperin
/s/ Tina Dell'Aquila Vice President, Controller, Date: April 23, 2002
------------------------------------ Assistant Secretary and Director
Tina Dell'Aquila
/s/ Catherine Brennan Vice President, Treasurer and Date: April 23, 2002
--------------------------- Director
Catherine Brennan
With respect to Interim BCB, LLC:
/s/ Frank E. Weise III President and Chief Executive Date: April 23, 2002
--------------------------------- Officer and Manager
Frank E. Weise III (Principal Executive Officer)
/s/ Raymond P. Silcock Executive Vice President and Date: April 23, 2002
------------------------ Manager
Raymond P. Silcock (Principal Financial Officer)
/s/ Mark R. Halperin Senior Vice President and Date: April 23, 2002
--------------------------------- Manager
Mark R. Halperin
With respect to Cott Vending Inc.:
/s/ Frank E. Weise III President and Director Date: April 23, 2002
--------------------------------- (Principal Executive Officer)
Frank E. Weise III
/s/ Raymond P. Silcock Executive Vice President and Date: April 23, 2002
------------------------ Director
Raymond P. Silcock (Principal Financial Officer)
/s/ Colin D. Walker Senior Vice President and Director Date: April 23, 2002
---------------------------------
Colin D. Walker
With respect to Cott Corporation:
/s/ Frank E. Weise III Chairman, President and Chief Date: April 23, 2002
--------------------------------- Executive Officer, Director
Frank E. Weise III (Principal Executive Officer)
/s/ Raymond P. Silcock Executive Vice-President and Date: April 23, 2002
------------------------ Chief Financial Officer
Raymond P. Silcock (Principal Financial Officer)
/s/ Colin J. Adair Director Date: April 23, 2002
------------------------------------
Colin J. Adair
/s/ C. Hunter Boll Director Date: April 23, 2002
------------------------------------
C. Hunter Boll
/s/ Thomas M. Hagerty Director Date: April 23, 2002
---------------------------
Thomas M. Hagerty
/s/ Stephen H. Halperin Director Date: April 23, 2002
------------------------------------
Stephen H. Halperin
/s/ True H. Knowles Director Date: April 23, 2002
------------------------------------
True H. Knowles
/s/ Donald G. Watt Director Date: April 23, 2002
------------------------------------
Donald G. Watt
INDEX TO EXHIBITS
Number Description
- ------ -----------
2.1+ Asset Purchase Agreement by and between Concord Beverage Company and Concord Beverage LP, dated as
of October 18, 2000 (incorporated by reference to Exhibit 2.1 to Cott Corporation's Form 8-K dated
as of October 18, 2000).
2.2+ Agreement of Sale by and between Concord Beverage Company and Concord Beverage LP, dated as of
October 18, 2000 (incorporated by reference to Exhibit 2.2 to Cott Corporation's Form 8-K dated as
of October 18, 2000).
2.3 Acquisition Agreement, dated November 20, 1997, among Cott UK Limited, Cott Corporation and the
several persons listed in Schedule 1 to the Agreement relating to the acquisition of Hero Drinks
Group (U.K.) Limited (incorporated by reference to Exhibit 10.2 to Cott Corporation's Form 10-K
dated March 31, 2000).
2.4 (*) Asset Acquisition and Facility Use Agreement, dated April 13, 2000, between BCB USA Corp. (since
renamed "Cott Beverages Inc.") and Schmalbach-Lubeca Plastic Containers USA, Inc. relating to the
sale of the PET perform blow molding operation (incorporated by reference to Exhibit 10.1 to Cott
Corporation's Form 10-Q dated May 16, 2000).
2.5+ (*) Asset Purchase Agreement by and among Royal Crown Company, Inc., Cott Corporation and BCB USA
Corp. dated as of June 13, 2001 (filed herewith).
3.1 Articles of Incorporation of Cott Corporation (incorporated by reference to Exhibit 3.1 to Cott
Corporation's Form 10-K dated March 31, 2000).
3.2 By-laws of Cott Corporation (incorporated by reference to Exhibit 3.2 to Cott Corporation's Form
10-K dated March 8, 2002).
3.3++ Articles of Incorporation of Cott Beverages Inc.
3.4++ Bylaws of Cott Beverages Inc. (formerly BCB USA Corp. and prior to that Cott Beverages USA Inc.).
3.5++ Amended and Restated Certificate of Incorporation of Cott Holdings Inc.
3.6++ Memorandum of Association and Amended and Restated Certificate of Incorporation of Cott Holdings Inc.
3.7++ Articles of Association and Bylaws of Cott Holdings Inc.
3.8++ Articles of Incorporation of Cott USA Corp., as amended.
3.9++ Bylaws of Cott USA Corp.
3.10++ Certificate of Incorporation of Cott Vending Inc.
3.11++ Bylaws of Cott Vending Inc.
3.12++ Certificate of Formation of Interim BCB, LLC.
3.13++ Amended and Restated Operating Agreement of Interim BCB, LLC (formerly Destination Products
International, LLC).
4.1 Subscription Agreement dated as of June 12, 1998 for Convertible Participating Voting Second
Preferred Shares, Series 1 of Cott Corporation (as issuer) (incorporated by reference to Exhibit 4.2
to Cott Corporation's Form 10-K dated March 31, 2000).
4.2 Letter Agreement dated as of November 3, 1999, regarding standstill provisions between Cott
Corporation and the Thomas H. Lee Company (incorporated by reference to Exhibit 4.3 to Cott
Corporation's Form 10-K dated March 31, 2000).
4.3 Indenture dated as of December 21, 2001, between Cott Beverages Inc. (as issuer) and HSBC Bank USA
(as trustee) (incorporated by reference to Exhibit 10.5 to Cott Corporation's Form 10-K dated March
8, 2002).
4.4 Registration Rights Agreement dated as of December 21, 2001, among Cott Beverages Inc., the
Guarantors named therein and Lehman Brothers Inc., BMO Nesbitt Burns Corp. and CIBC World Markets
Corp. (incorporated by reference to Exhibit 10.5 to Cott Corporation's Form 10-K dated March 8,
2002).
5.1++ Opinion of Drinker Biddle & Reath LLP.
10.1 (*) Termination Agreement, dated November 1, 1999, among Cott Beverages USA, Inc. (now "Cott
Beverages Inc.") and Premium Beverages Packers, Inc. (incorporated by reference to Exhibit 10. 1 to
Cott Corporation's Form 10-K dated March 31, 2000).
10.2 (*) Supply Agreement, dated December 21, 1998, among Wal-Mart Stores, Inc. and Cott Beverages USA,
Inc. (now "Cott Beverages Inc.") (filed herewith).
10.3 (**) Employment Agreement of Frank E. Weise III dated June 11, 1998 (incorporated by reference to
Exhibit 10.5 to Cott Corporation's Form 10-K dated March 31, 2000), as amended July 3, 2001
(incorporated by reference to Exhibit 10.2 of Cott Corporation's Form 10-Q for the period ended June
30, 2001).
10.4 (**) Employment Agreement of Mark Benadiba dated October 7, 1997, as amended December 19, 1997
(incorporated by reference to Exhibit 10. 7 to Cott Corporation's Form 10-K dated March 31, 2000),
and as further amended September 25, 2000 (incorporated by reference to Exhibit 10.6 to Cott
Corporation's Form 10-K dated March 7, 2001).
10.5 (**) Employment Agreement of Paul R. Richardson dated August 23, 1999 (incorporated by reference to
Exhibit 10. 8 to Cott Corporation's Form 10-K dated March 31, 2000), as amended February 18, 2002
(incorporated by reference to Exhibit 10.5 to Cott Corporation's Form 10-K dated March 8, 2002).
10.6 (**) Employment Agreement of Raymond P. Silcock dated August 17, 1998 (incorporated by reference to
Exhibit 10.9 to Cott Corporation's Form 10-K dated March 31, 2000).
10.7 (**) Employment Agreement of Mark R. Halperin dated July 14, 2000 (incorporated by reference to
Exhibit 10.10 to Cott Corporation's Form 10-K dated March 8, 2002).
10.8 (**) Amended 1999 Executive Incentive Share Compensation Plan effective January 3, 1999
(incorporated by reference to Exhibit 10.8 to Cott Corporation's Form 10-K for the year ended
December 30, 2000).
10.9 (**) 2000 Executive Incentive Share Compensation Plan effective January 2, 2001 (incorporated by
reference to Exhibit 10.9 to Cott Corporation's Form 10-K for the year ended December 30, 2000).
10.10 (**) 2001 Executive Incentive Share Compensation Plan effective January 2, 2002 (incorporated by
reference to Exhibit 10.10 to Cott Corporation's Form 10-K dated March 8, 2002).
10.11 (**) Second Canadian Employee Share Purchase Plan effective January 2, 2001 (incorporated by
reference to Exhibit 10.11 to Cott Corporation's Form 10-K for the year ended December 30, 2000).
10.12 Share Plan for Non-Employee Directors effective January 2, 2002 (incorporated by reference to
Exhibit 10.12 to Cott Corporation's Form 10-K dated March 8, 2002).
10.13 (*) Credit Agreement dated as of July 19, 2001 between BCB USA Corp. (since renamed "Cott
Beverages Inc."), Cott Corporation and the Several Lenders, Lehman Brothers Inc., First Union
National Bank, Bank of Montreal and Lehman Commercial Paper, Inc. (filed herewith), as amended
December 13, 2001 and December 19, 2001 (incorporated by reference to Exhibit 10.13 to Cott
Corporation's Form 10-K dated March 8, 2002).
10.15 Services Agreement among Cott Corporation, Deuteronomy Inc. and Don Watt consulting agreement dated
June 1, 1999 (incorporated by reference to Exhibit 10.14 to Cott Corporation's Form 10-K dated March 8,
2002).
12.1++ Computation of Ratios of Earnings to Fixed Charges.
21.1++ List of Subsidiaries of Cott Corporation and Cott Beverages Inc.
23.1++ Consent of Independent Accountants.
23.2 Consent of Drinker Biddle & Reath LLP (included in Exhibit 5.1 above).
Number Description
- ------ -----------
25.1++ Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939 of HSBC Bank USA.
99.1++ Form of Letter of Transmittal.
- ------------------
+ In accordance with Item 601(b)(2) of Regulation S-K, the exhibits to this
Exhibit have been omitted and a list briefly describing those exhibits is
contained in the Exhibit. The Registrant will furnish a copy of any
omitted exhibit to the Commission upon request.
(++) Document has previously been filed.
(*) Document is subject to request for confidential treatment.
(**) Indicates a management contract or compensatory plan.