Item 1.01. Entry into Material Definitive Agreement.
Merger Agreement
On March 8, 2021, ANI
Pharmaceuticals, Inc. (“Parent”), entered into an Agreement and Plan of Merger (the “Merger Agreement”)
by and among Parent, Nile Merger Sub LLC, a Delaware limited liability company and a wholly-owned subsidiary of Parent (“Merger
Sub”), Novitium Pharma LLC, a Delaware limited liability company (the “Company”), Esjay LLC, a Delaware
limited liability company (“Esjay”), Chali Properties, LLC, a New Jersey limited liability company (“Chali”),
Chad Gassert, Muthusamy Shanmugam and Thorappadi Vijayaraj (collectively, the “Key Persons”, and Muthusamy Shanmugam
and Thorappadi Vijayaraj, together with Esjay and Chali, the “Principal Members”) and Shareholder Representative
Services LLC, a Colorado limited liability company, as the representative of the Company Members.
Upon the terms and
subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into the Company, with the Company
surviving the Merger as a wholly-owned subsidiary of Parent. The closing of the Merger (the “Closing”) will
occur (a) within five business days after all of the conditions to the Closing set forth in the Merger Agreement are satisfied
or waived or (b) at such other time, date and place as may be agreed by Parent and the Company, subject to the completion
of a minimum period. The date on which the Closing occurs is referred to as the (“Closing Date”).
The Merger Consideration
will consist of a combination of (i) an estimated cash amount of $89.5 million, subject to various adjustments and expected to
be financed in part by the PIPE Investment (as defined below) and in part by debt financing, (ii) an aggregate of 2,466,667 shares
of Parent Common Stock (the “Restricted Shares”) and (iii) up to $46.5 million in contingent future earn-out
payments.
Capitalized terms used
in this Current Report on Form 8-K but not otherwise defined herein have the meanings given to them in the Merger Agreement.
Representations, Warranties and Covenants
The Merger Agreement
contains representations, warranties and covenants customary for a transaction of this nature, including, relating to, among other
things, the parties’ ability to enter into the Merger Agreement, their outstanding capitalization, regulatory matters and
the Company continuing to conduct its businesses in the ordinary course during the period between the execution of the Merger Agreement
and the Closing. The Company has also agreed to customary “no shop” obligations.
Concurrently with the
execution and delivery of the Merger Agreement, Parent has obtained representation and warranty insurance, solely for the benefit
of Parent, related to losses that may arise from breaches of the Company’s or any Company Member’s representations
and warranties contained in the Merger Agreement and certain other matters.
Conditions
The obligations of
the parties to consummate the Merger are subject to the satisfaction or waiver, at or prior to the Closing, of each of the following
conditions:
Mutual Conditions
(a) All
required filings under the HSR Act have been made, and all applicable waiting periods, including any extensions thereof, have expired
or been terminated.
(b) No
court of competent jurisdiction or other government authority has issued or threatened to issue an order (including an injunction,
whether preliminary or permanent) or taken any other action enjoining, restraining or otherwise prohibiting the consummation of
the Merger or any of the other transactions, and no action has been taken, and no statute, rule, regulation or order has been promulgated
or enacted, by any government authority, which would prevent or make illegal the consummation of the Merger or any of the other
transactions.
(c) The
issuances of the Restricted Shares and PIPE Shares (as defined below) shall have been approved by the holders of Parent Common
Stock at the Parent Stockholders Meeting.
(d) The
Company and the Real Estate Seller have met the requirements under certain applicable law for the transfer of the Company’s
headquarters pursuant to a real estate transfer agreement and the consummation of the Merger.
Conditions to the
obligations of Parent and Merger Sub
(a) Each
of the Company Fundamental Representations shall be true and correct in all respects (other than certain de minimis inaccuracies),
in each case as of the Closing Date, as if made on the Closing Date (except to the extent expressly made as of an earlier date,
in which case as of such date).
(b) Each
of the other representations and warranties made by the Group Companies, Key Persons and Company Members shall be true and correct
as of the Closing Date, as if made on the Closing Date (except to the extent expressly made as of an earlier date, in which case
as of such date), except where all failures of such representations and warranties to be so true and correct (in each case, other
than with respect to undisclosed liabilities, absence of certain changes, or the word “material” when used in the definition
of any defined terms in the Merger Agreement containing the word “Material”, or the word “Material” when
used in any defined terms in the Merger Agreement), without giving effect to any materiality qualification (including qualifications
indicating accuracy in all material respects) or “Company Material Adverse Effect” qualification (including qualifications
indicating accuracy with such exceptions as, individually or in the aggregate, do not have, and are not reasonably likely to have,
a Company Material Adverse Effect)) do not have, and would not reasonably be expected to have, individually or in the aggregate,
a Company Material Adverse Effect.
(c) Each
of the representations and warranties made by the Key Persons and Company Members or contained in the Support Agreement shall be
true and correct in all respects (other than de minimis inaccuracies with respect to the representations and warranties by Company
Members who are not Key Persons or Principal Members), in each case as of the Closing Date, as if made on the Closing Date (except
to the extent expressly made as of an earlier date, in which case as of such date).
(d) The
Company shall have performed in all material respects each of the obligations and complied in all material respects with each of
the covenants required by the Merger Agreement or any other Transaction Document to be performed or complied with by it on or prior
to the Closing Date. Each Key Person and Company Member shall have performed in all material respects each of the obligations and
complied in all material respects with each of the covenants required by the Merger Agreement or any other Transaction Document
to be performed or complied with by it on or prior to the Closing Date.
(e) No
circumstance, state of facts or matters, change, event, occurrence, action or omission shall have occurred after the date of the
Merger Agreement that, individually or in the aggregate, has had a Company Material Adverse Effect.
(f) The
Company shall have delivered to Parent and Merger Sub a certificate signed on behalf of the Company by an executive officer of
the Company, in his or her capacity as such, to the effect that certain conditions precedent with respect to representations and
warranties regarding the Company, covenants and Company Material Adverse Effect have been satisfied. Each Principal Member shall
have delivered to Parent and Merger Sub a certificate signed by a duly authorized signatory, in his or her capacity as such, of
such Principal Member, in its capacity as such, to the effect that certain conditions precedent with respect to representations
and warranties regarding the Key Persons and Company Members and covenants have been satisfied as to such Principal Member.
(g) Parent
and Merger Sub shall have received each of the certificates, instruments, contracts or other documents required to be delivered
by the Company or the Company Members under the Merger Agreement at or prior to the Closing.
(h) All
Employment Agreements remain in full force and effect and no Key Person has ceased to be employed by the Company (other than as
a result of death or disability).
(i) The
transfer of the Company’s headquarters by the Real Estate Seller to the Real Estate Buyer shall have been consummated in
accordance with the terms and conditions of the real estate transfer agreement and Merger Agreement.
(k) There
shall be no Liens on any of the assets of the Company or any of the Subsidiaries other than Permitted Liens or certain other Liens
relating to the Company’s headquarters.
(l) There
shall not have been an FDA audit that resulted in an OAI (Official Action Indicated).
Conditions to the
obligations of the Company and the Principal Members
(a) Each
of the Parent Fundamental Representations shall be true and correct in all respects (other than de minimis inaccuracies), in each
case as of the Closing Date, as if made on the Closing Date (except to the extent expressly made as of an earlier date, in which
case as of such date).
(b) Each
of the other representations and warranties with respect to Parent and Merger Sub shall be true and correct in all respects, in
each case as of the Closing Date, as if made on the Closing Date (except to the extent expressly made as of an earlier date, in
which case as of such date), except where all failures of such representations and warranties to be so true and correct (in each
case, other than with respect to absence of certain developments), without giving effect to any materiality qualification (including
qualifications indicating accuracy in all material respects) or “Parent Material Adverse Effect” qualification (including
qualifications indicating accuracy with such exceptions as, individually or in the aggregate, do not have, and are not reasonably
likely to have, a Parent Material Adverse Effect)) do not have, and would not reasonably be expected to have, individually or in
the aggregate, a Parent Material Adverse Effect.
(c) Parent
and Merger Sub shall have performed in all material respects each of the obligations and complied in all material respects with
each of the covenants required by the Merger Agreement or any other Transaction Document to be performed or complied with by them
on or prior to the Closing Date.
(d) Parent
and Merger Sub shall have delivered to the Company a certificate signed on behalf of Parent and Merger Sub by an executive officer
of Parent and Merger Sub to the effect that certain conditions precedent with respect to required representations, warranties and
covenants have been satisfied.
(e) The
Company shall have received each of the certificates, instruments, contracts or other documents required to be delivered by Parent
or Merger Sub under the Merger Agreement at or prior to the Closing.
Termination
The Merger Agreement
may be terminated at any time prior to the consummation of the Closing:
(a) by
mutual written consent of Parent and the Company;
(b) by
Parent or the Company, if the Closing shall not have taken place on or prior to 5:00 p.m., New York City time, on December 8, 2021
(as may be extended pursuant to the Merger Agreement), which date may be extended by (A) Parent or the Company by up to an additional
three months from the original Termination Date if, at the original Termination Date, the only conditions precedent that have not
yet been satisfied are the conditions precedent with respect to the HSR Act and those conditions precedent that by their terms
require the delivery of any documents or the taking of other action at the Closing or (B) the mutual agreement of Parent and the
Company; provided, however, that the right to terminate the Merger Agreement shall not be available to (x) Parent if the failure
by Parent or Merger Sub to perform any covenant or obligation under the Merger Agreement or the inaccuracy or breach by Parent
or Merger Sub of a representation or warranty contained in or made pursuant to the Merger Agreement has been the cause of or resulted
in the failure of the Closing to occur on or before such date or (y) the Company if the failure by any Key Person, Company Member
who became party to the Support Agreement or the Company to perform any covenant or obligation under the Merger Agreement or the
inaccuracy or breach by any Key Person, Company Member who became party to the Support Agreement or the Company of a representation
or warranty contained in or made pursuant to the Merger Agreement has been the cause of or resulted in the failure of the Closing
to occur on or before such date;
(c) by
Parent, if any of the conditions precedent to the obligations of Parent and Merger Sub (including the conditions precedent to the
obligations of all parties) shall become incapable of being satisfied; provided, that Parent shall have provided 15 business days’
notice thereof to the Company and the applicable condition precedent shall not have been satisfied within such period; and
(d) by
the Company, if any of the conditions precedent to the obligations of the Company and the Principal Members (including the conditions
precedent to the obligations of all parties) shall become incapable of being satisfied; provided, that the Company shall have provided
15 business days’ notice thereof to Parent and the applicable condition precedent shall not have been satisfied within such
period.
Effect of Termination
In the event of the
termination and abandonment of the Merger Agreement prior to the consummation of the Closing, the Merger Agreement shall become
void and have no effect, with certain limited exceptions and, except as expressly provided in the Merger Agreement, each party
shall pay all of its own expenses incurred in connection herewith, without any liability on the part of any party or its members,
managers, partners, directors, officers or stockholders; provided, however, that no such termination shall in any way limit a claim
by any party for material breach by another party of the terms of the Merger Agreement prior to or in connection with such termination;
provided, however, that if the Merger Agreement is terminated due to failure to obtain Parent Stockholder Approval upon a vote
taken thereon at the Special Meeting, then Parent shall reimburse the Company’s reasonable and documented out-of-pocket expenses
incurred by the Company up to a capped amount.
Issuance of Restricted Shares
The Principal Members,
Key Persons and Company Members have agreed to certain lock-up, voting and standstill restrictions with respect to the Restricted
Shares they will receive as partial consideration for the Merger. Additionally, the Principal Members will be granted certain Board
representation rights in connection with their Restricted Stock holdings.
Lock-Up
Each
Principal Member and Key Person has agreed not to transfer any Restricted Shares, provided, that the foregoing restriction shall
cease to apply as to 25% each of such Principal Member’s Restricted Shares on the six, twelve, eighteen and twenty-four months
anniversaries of the Closing Date. Each Company Member other than the Principal Members has agreed not to transfer any Restricted
Shares, provided, that the foregoing restriction shall expire and cease to apply as to 50% of each of such Company Member’s
Restricted Shares on the three months anniversary of the Closing Date and as to 50% on the six month anniversary of the Closing
Date (the foregoing restrictions, collectively, the “Transfer Restrictions”).
Notwithstanding the
foregoing, the Transfer Restrictions shall not apply to (i) Transfers effected as a result of the consummation of an Acquisition
Transaction, (ii) Transfers made in connection with a Tender Offer, (iii) Transfers made with the consent of the Board or (iv)
Transfers (A) to a Controlled Affiliate of such Principal Member or to a Key Person or a Controlled Affiliate thereof, (B) to a
trust under which the distribution of Restricted Shares may be made only to such Principal Member, a Key Person and/or any Controlled
Affiliate or Relative thereof or (C) by will or intestacy to such natural person’s estate, spouse, children, ancestors or
any descendants of any ancestors; provided, that each such Transfer shall comply with applicable securities laws and each such
transferee shall make appropriate securities laws representations and warranties and agree to become subject to the Transfer Restrictions
and, in the case of a Transfer of Restricted Shares issued to a Key Person or Principal Member under the Transfer Restrictions,
the standstill provisions and in the case of all such Transfers pursuant to an instrument of assignment and assumption reasonably
satisfactory to Parent.
Voting
For such time as and
to the extent that the Transfer Restrictions have not yet expired, the Company Members shall vote the Restricted Shares that remain
subject to Transfer Restrictions, at any annual or special meeting of stockholders of Parent that occurs during such period, (a) in
favor of all directors nominated by the Board for election (subject to certain rights of the Key Persons), (b) in favor of
the ratification of the appointment of Parent’s registered public accounting firm for the relevant fiscal year, (c) in
accordance with the Board’s recommendation with respect to Parent’s “say-on-pay” proposal and (d) in
accordance with the Board’s recommendation with respect to any other Parent proposal or stockholder proposal or nomination
presented at such meeting (other than in connection with a Significant Event).
Standstill
The Key Persons and
Principal Members shall not, and shall cause their respective Affiliates and their and their Affiliates’ Representatives
not to, until the third anniversary of the Closing Date, directly or indirectly, without the prior written consent of Parent, except
(i) for purposes of the Merger or (ii) with respect to clauses (a), (b) and (g) below, in connection with the service of an Eligible
Person on the Board or of a Key Person as an officer of Parent and/or its Subsidiaries, act alone or in concert or conscious parallelism
with others, or cooperate with others, to:
(a) control
or seek to control, or influence or seek to influence, Parent or any of its Subsidiaries, the Board or management of Parent or
any of its Subsidiaries or the policies of Parent or any of its Subsidiaries;
(b) make,
or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect
to the voting of, any voting securities of Parent or any of its Subsidiaries;
(c) form,
join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect
to any voting securities of Parent or any of its Subsidiaries;
(d) except
in connection with the enforcement by way of court proceedings of his rights under the Merger Agreement, any agreement contemplated
thereby and any other agreement between such Key Person or Principal Member, on the one hand, and Parent or a Subsidiary thereof,
on the other hand, make any public statement that is critical of Parent or any of its Subsidiaries, the Board or management of
Parent or any of its Subsidiaries or the policies of Parent or any of its Subsidiaries;
(e) enter
into or seek or propose to effect or facilitate any purchase or sale of securities (other than the Restricted Shares, subject to
the Transfer Restrictions) or assets of Parent or any of its Subsidiaries, any warrant or option to purchase such securities or
assets, any security convertible into any such securities, any derivative or hedging transaction involving securities of Parent
or any of its Subsidiaries, or any other right to acquire such securities or assets (other than option grants or other equity grants
approved by the Board of Parent and purchases of products or services in the ordinary course);
(f) enter,
agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring
or other extraordinary transaction involving Parent or any of its Subsidiaries (other than the Merger);
(g) call,
request the calling of, or otherwise seek or assist in the calling of a special meeting of the Board or stockholders of Parent
or any of its Subsidiaries;
(h) disclose
any intention, plan or arrangement prohibited by, or inconsistent with, any of the foregoing;
(i) advise,
assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection
with any of the foregoing; or
(j) have
any discussions or communications with, enter into any arrangements, understandings or agreements (whether written or oral) with,
advise, finance, assist or encourage, act in concert or conscious parallelism with, or cooperate with, any other person in connection
with any of the foregoing, or make any investment in, enter into any arrangement or understanding with, or form a “group”
with or otherwise act in concert or conscious parallelism with, or cooperate with, any other person that engages, or offers or
proposes to engage, in any of the foregoing.
Each Key Person and
each Principal Member also shall not, and shall cause their respective Affiliates and their and their Affiliates’ Representatives
not to, during the standstill period described above, directly or indirectly, without the prior written consent of Parent, (x)
make any request directly or indirectly, to amend or waive any of their the standstill provisions obligations under the Merger
Agreement, or (y) take any action that might require Parent to make a public announcement regarding the possibility of a business
combination, merger or other similar transaction.
In addition, (i) upon
the occurrence of a Significant Event, the standstill restrictions (other than in connection with a court proceeding under the
Merger Agreement) will immediately terminate and be of no further force or effect; provided that, in the event that (A) the transaction
relating to such Significant Event shall not have been consummated and (x) the definitive agreement relating thereto shall have
expired or been terminated or (y) there is a public announcement of the withdrawal or abandonment of the intention to pursue such
Significant Event by the Person pursuing such transaction and (B) prior to such time, the Key Persons or Principal Members shall
not have taken any of the actions contemplated by the standstill provisions of the Merger Agreement, the standstill restrictions
set forth in the Merger Agreement shall be reinstated and shall continue to apply in full force and effect; (ii) the Key Persons
and Principal Members shall not be precluded from making any confidential offers or proposals to the Board in a manner reasonably
believed not to require Parent to make a public announcement of such offer or proposal; and (iii) the Key Persons, Principal Members
and their respective Affiliates shall not be precluded from owning or acquiring interests in mutual funds or similar entities that
own capital stock of Parent.
Board Representation
For such time as the
Principal Members continue to collectively own at least (i) 50% of the Restricted Shares issued to the Principal Members pursuant
to the Merger, and (ii) 6.6% of the issued and outstanding shares of Parent Common Stock (the “Director Threshold”),
the Principal Members shall have the right to nominate one Eligible Person as director to the Board. As promptly as practicable
after such nomination, Parent shall increase the size of the Board by one seat and shall cause such newly created vacancy be filled
with the Eligible Person nominated by the Principal Members. With respect to any subsequent general meeting of Parent’s stockholders,
Parent shall take all necessary action (subject to directors’ fiduciary duties) to recommend to Parent’s stockholders
the election of the nominated Eligible Person as a director, subject to the Director Threshold continuing to be met. If a Key Person
becomes a Bad Leaver, such Key Person, if then serving on the Board, shall promptly resign from the Board upon the Board’s
request; provided, that the right of the Principal Members to nominate an Eligible Person to the Board shall not otherwise be affected
by a Key Person becoming a Bad Leaver. If such Eligible Person ceases to serve as a member of the Board during his or her term
of office, the Principal Members shall have the right to nominate another Eligible Person to fill the resulting vacancy on the
Board, subject to the Director Threshold continuing to be met, in which case Parent shall cause such resulting vacancy be filled
with the Eligible Person nominated by the Principal Members. From such time as the Director Threshold is no longer met, the Principal
Members shall, and shall cause their Affiliates to, upon the Company’s request, be required to take such action as is necessary
to promptly remove such Eligible Person from the Board, whereupon the size of the Board shall automatically be reduced accordingly.
Registration Rights Agreement
Concurrently with the
Closing, the Company will enter into a registration rights agreement (the “Registration Rights Agreement”) with
the Principal Members, Key Persons and Company Members providing customary registration rights with respect to the Restricted Shares.
The Registration Rights Agreement will be filed as an exhibit to the Company’s Current Report on Form 8-K or Quarterly Report
on Form 10-Q following the Closing.
Proxy Statement
As promptly as practicable,
and in any event within 30 business days following the date of the Merger Agreement, Parent and the Company will prepare, and Parent
will file with the SEC a proxy statement of the Parent for the purpose of approving the issuance of the Restricted Shares and PIPE
Shares, among other things.
Support Agreement
Concurrently with the
execution and delivery of the Merger Agreement, all of the Key Persons, the Principal Members (who in the aggregate are the owners
of approximately 77% of the outstanding Company Interests) and the representative of the Company Members have entered into the
Support Agreement with Parent, pursuant to which they have, with respect to all of their Company Interests, consented to and agreed
to further support the approval of the Merger, agreed to become a party to the Merger Agreement, agreed to release Parent, Merger
Sub, the Company and their respective affiliates from certain claims, and, in the case of the Key Persons, to guarantee, severally
and not jointly, the obligations of the Principal Members.
The foregoing description
of the Support Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the
Support Agreement, which is filed as Exhibit 10.1 hereto, which is incorporated herein by reference.
Equity Commitment and Investment Agreement
Concurrently with the
execution of the Merger Agreement, on March 8, 2021, Parent entered into an Equity Commitment and Investment Agreement (the “Investment
Agreement”) with Ampersand 2020 Limited Partnership (the “PIPE Investor”), an affiliate of Ampersand
Capital Partners, pursuant to which we agreed to issue and sell to the PIPE Investor, and the PIPE Investor agreed to purchase,
25,000 shares of our Series A Convertible Preferred Stock (the “PIPE Shares”), for a purchase price of $1,000
per share and an aggregate purchase price of $25 million, in a private placement (the “PIPE Investment”).
The PIPE Shares will
accrue dividends at 6.50% per year on a cumulative basis, payable in cash or in-kind, and will also participate, on a pro-rata
basis, in any dividends that may be declared with respect to our Common Stock. The PIPE Shares will be convertible into Parent
Common Stock at the Conversion Price (as defined below): (i) beginning two years after their issuance date, at the election of
Parent (in which case the PIPE Investor must convert all of the PIPE Shares), if the volume-weighted average price of Parent’s
Common Stock for any 20 trading days out of 30 consecutive trading days exceeds 170% of the Conversion Price, and (ii) at any time
after their issuance, at the election of the PIPE Investor. The “Conversion Price” is equal to the volume-weighted
average price of Parent’s Common Stock for the 20 consecutive trading days before the issuance of the PIPE Shares (subject
to a 10% upper and lower collar applied to the volume-weighted average price of Parent’s Common Stock for the 20 consecutive
trading days before entry into the Investment Agreement) multiplied by 125%, and subject to certain adjustments set forth in the
Investment Agreement. In case of a liquidation event, the holder of the PIPE Shares will be entitled to receive, in preference
to holders of our Common Stock, the greater of (i) the PIPE Shares’ purchase price plus any accrued and unpaid dividends
thereon and (ii) the amount the holder of the PIPE Shares would have received in the liquidation event if it had converted its
PIPE Shares into Parent Common Stock. The PIPE Shares will have voting rights, voting as one series with our Common Stock, on as-converted
basis, and will have separate voting rights on any (i) amendment to the Certificate of Designation of Preferences, Rights and Limitations
of Series A Convertible Preferred Stock (the “Certificate”) that adversely amends and relates solely to the terms of
the PIPE Shares and (ii) issuance of additional Series A Convertible Preferred Stock. In case of a change of control of Parent,
the PIPE Shares will be redeemed at the greater of (i) the PIPE Shares’ purchase price plus any accrued and unpaid dividends
thereon and (ii) the change of control transaction consideration that the holder of the PIPE Shares would have received if it had
converted into Parent Common Stock.
The issuance and closing
of the sale of the PIPE Shares pursuant to the Investment Agreement is contingent upon, in addition to customary closing conditions,
the substantially concurrent consummation of the Merger on terms that are not in the aggregate materially adverse to Parent. The
purpose of the PIPE Investment is to partially fund the cash consideration portion of the Merger, with any residual proceeds to
be used for working capital and other general corporate purposes.
Pursuant to the Investment
Agreement, Parent has agreed to give the holder of the PIPE Shares customary registration rights and to grant the PIPE Investor
the right to have a non-voting observer attend our Board meetings for so long as the PIPE Investor maintains a certain level of
ownership of the PIPE Shares or shares of Parent Common Stock converted therefrom. The PIPE Investor agreed to customary lock-up
and standstill provisions.
The foregoing descriptions
of the Investment Agreement and the Certificate do not purport to be complete and are qualified in their entirety by reference
to the full text of the Investment Agreement, and the form of Certificate attached as Schedule B thereto, copies of which are filed
as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.