AGREEMENT AND PLAN OF DISTRIBUTION, CONTRIBUTION AND MERGER
This Agreement and Plan of Distribution, Contribution and Merger (the
"Agreement") is made this 26th day of June, 1998, by and among Xxxx
PlastiCrafters Limited Partnership, a Delaware limited partnership ("Xxxx XX"),
Xxxx PlastiCrafters Inc. (Del), a Delaware corporation ("MPI"), Montero, Inc., a
Delaware corporation ("Montero"), Textek Plastics, Inc., a Texas corporation
("Textek"), AMM Holdings, Inc. (f/k/a Anchor Acquisition Co.), a Delaware
corporation ("AMM Holdings"), Anchor Advanced Products, Inc., a Delaware
corporation ("Anchor"), Anchor Holdings, Inc., a Delaware corporation ("Anchor
Holdings"), Xxxx Industries, LLC, a Delaware limited liability company (the
"French Parent"), Xxxx Plastics SARL (the "SARL"), Xxxx Industries Germany, LLC
(f/k/a Xxxx PlastiCrafters, LLC), a Delaware limited liability company (the
"German Parent"), Xxxxxx X. Xxxxx ("X. Xxxxx"), Xxxxxxx X. Xxxxxxx ("Xxxxxxx"),
Xxxxxxxxxx Xxxxx ("X. Xxxxx"), S&R Fownes Corp., a Delaware corporation ("Fownes
Corp."), Xxxxxxx X. Xxxxxxx ("Xxxxxxx"), Xxxx Xxxxxxx ("Xxxxxxx"), Xxxxx Xxxxxx
("Xxxxxx"), Xxxxxxx XxXxxxx ("XxXxxxx") and Yehochai Xxxxxxxxx ("Xxxxxxxxx").
Introduction
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The parties own the following equity interests:
(a) with respect to Xxxx XX, (i) MPI owns a 62.315% partnership
interest, (ii) Textek, the sole general partner of Xxxx XX, owns a 27.685%
partnership interest, and (iii) Montero owns a 10% partnership interest, all in
accordance with the Xxxx PlastiCrafters Limited Partnership Third Restated
Limited Partnership Agreement dated as of September 25, 1995, as amended from
time to time (the "Xxxx XX Agreement");
(b) with respect to Textek, (i) it has issued a $15.6 million
promissory note held by Textek Plastics, LLC (the "Textek Note") and (ii) it has
issued and outstanding the following capital stock: 88.7336 shares of common
stock owned by X. Xxxxx and 11.2664 shares of common stock owned by Xxxxxxx (the
"Xxxxxxx Textek Interest");
(c) with respect to Reliance Products Limited Partnership, a Delaware
limited partnership ("Reliance LP"), (i) Xxxx XX owns a 69% Class B limited
partnership interest ("Xxxx'x Reliance Interest"), (ii) VF Investments
Corporation, a Delaware corporation ("VFIC") owns a 28% Class A preferred
partnership interest, (iii) Montero owns a 72% Class A preferred partnership
interest, (iv) Reliance Products, Inc., a Delaware corporation and the sole
general partner of Reliance LP ("RPI"), owns a 1% Class B partnership interest
and (v) Fownes Corp. and Renaissance Plastics, Inc., a Delaware corporation
("Renaissance"), each own a 15% Class B partnership interest, all in accordance
with the First Amended and Restated Agreement of
Limited Partnership of Reliance Products Limited Partnership dated December 11,
1996 (the "Reliance LP Agreement");
(d) AMM Holdings owns all of the issued and outstanding capital stock
of Anchor Holdings, and Anchor Holdings owns all of the issued and outstanding
capital stock of Anchor;
(e) with respect to AMM Holdings, (i) it has issued the following
notes: (A) $6.3 million promissory note issued to VF Anchor, LLC (the "First
Redemption Note") and (B) $50,000 promissory note issued to Xxxxxxx for the
redemption of his AMM Holdings capital stock (the "AMM Redemption Note")
pursuant to that certain Take-Out Agreement dated June 9, 1998 by and among X.
Xxxxx, Xxxxxxx and the other companies which are signatory thereto (the "Xxxxxxx
Take-Out Agreement"), and (ii) it has issued and outstanding the following
capital stock: 575 shares of common stock, $.01 par value, owned as follows: 50
shares each owned by Xxxxxxx, Xxxxxx Corp., and X. Xxxxx and 425 shares owned by
X. Xxxxx;
(f) with respect to the French Parent, (i) pursuant to the terms of its
Operating Agreement dated December 30, 1997 (the "French Parent Agreement"),
membership interests are held by (A) Xxxx XX, with respect to which all
distributions are to be made, other than the French Distributions (as defined in
the French Parent Agreement) and (B) individual members, X. Xxxxx, Fackler,
DeBrule, Moravec, Schneider, Xxxxxx and X. Xxxxx, who have the sole right to
receive the French Distributions; and (ii) pursuant to the Xxxxxxx Take-Out
Agreement, X. Xxxxx holds an option to acquire all of Xxxxxxx'x membership
interests in the French Parent (the "Votis Option"); and
(g) with respect to the SARL, all of the equity interests are owned (i)
99% by Xxxx Plastics, LLC, a Delaware limited liability company ("Xxxx
Plastics") which is owned 100% by the French Parent, and (ii) 1%, in the
aggregate by X. Xxxxx, X. Xxxxx, Moravec, DeBrule, Xxxxxxxxx and Xxxxxx.
(h) with respect to the German Parent, all of its issued and
outstanding membership interests are held by Xxxx XX.
Pursuant to the terms of this Agreement, the parties hereto wish to
effectuate (i) the distribution of Xxxx'x Reliance Interest to MPI and Montero
(the "Reliance LP Spin-Off") and (ii) a reorganization (the "Reorganization") of
the capital structures of Xxxx XX, Anchor and Anchor Holdings whereby, among
other things, Xxxx XX and Anchor will merge with Anchor surviving and changing
its name to Xxxx Industries, Inc. The Reliance LP Spin-Off and the
Reorganization will be accomplished in accordance with the terms of this
Agreement by means of the distribution, contributions and mergers set forth
herein. DeBrule, Moravec, Xxxxxxxxx and Xxxxxx are shareholders in Montero and
will hold their equity interests after the Reorganization solely through Montero
and not individually.
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NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agrees as follows:
1. Reliance LP Spin-Off. In order to effectuate the Reliance LP
Spin-Off, Xxxx XX hereby distributes, effective as of the Effective Time (as
hereinafter defined), its 69% Class B limited partnership interest in Reliance
LP, 90% to MPI and 10% to Montero, in partial redemption of MPI's and Montero's
respective limited partnership interests in Xxxx XX. As a result of the Reliance
LP Spin-Off, MPI will hold 62.1% and Montero will hold 6.9% percent of the Class
B limited partnership interests in Reliance LP which were formerly held by Xxxx
XX. Xxxx XX hereby directs RPI, as the general partner of Reliance LP, to amend
Exhibit A to the Reliance LP Agreement, in order to reflect the foregoing
Reliance LP Spin-Off. MPI and Montero hereby agree to pledge at the Effective
Time to Bank of America National Trust and Savings Association, successor by
merger to Bank of America Illinois the interests they have hereby acquired in
Reliance LP, consistent with a similar superseded pledge given by Xxxx XX with
respect to such interests.
2. Basic Steps of the Reorganization. Each party agrees with respect to
its applicable equity interest described in the following basic steps of the
Reorganization that each of the steps will be deemed to have occurred
simultaneously effective as of the Effective Time:
(a) Montero contributes all of its partnership interest in Xxxx XX to
AMM Holdings in return for cash and stock of AMM Holdings. Montero continues to
hold its 6.9% Class B limited partnership interest in Reliance LP, which it
acquired as a result of the Reliance LP Spin-Off.
(b) Textek is merged with and into AMM Holdings, with AMM Holdings
surviving, as set forth in more detail in Section 3(a) of this Agreement. All of
Textek's outstanding capital stock is canceled, and Xxxxxxx receives 6% of the
capital stock of AMM Holdings in exchange for his Xxxxxxx Textek Interest and X.
Xxxxx also receives capital stock of AMM Holdings.
(c) MPI contributes all of its partnership interest in Xxxx XX to AMM
Holdings in return for cash and stock of AMM Holdings. MPI continues to hold its
62.1% Class B limited partnership interest in Reliance LP, which it acquired as
a result of the Reliance LP Spin-Off.
(d) X. Xxxxx exercises the Votis Option and acquires Xxxxxxx'x
membership interests in the French Parent.
(e) All membership interests in the French Parent not held by Xxxx XX
are canceled for no additional consideration.
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(f) X. Xxxxx, X. Xxxxx, Moravec, Wilson, XxXxxxx and Xxxxxxxxx
contribute their respective minority equity interests in the SARL to AMM
Holdings for no additional consideration.
(g) AMM Holdings (into which Textek has been merged) contributes all of
its equity interests in the following companies to Anchor Holdings, subject to
the First Redemption Note, and Anchor Holdings contributes all of such assets to
Anchor, which assumes sole liability under the First Redemption Note:
(i) Xxxx XX;
(ii) SARL; and
(iii) French Parent.
(h) Xxxx XX is merged with and into Anchor with Anchor surviving, as
set forth in more detail in Section 3(b) of this Agreement. All of the equity
interests in Xxxx XX held by Anchor are canceled.
(i) German Parent is merged with and into Anchor with Anchor surviving,
as set forth in more detail in Section 3(b) of this Agreement.
(j) Anchor transfers and assigns its 1% interest in the SARL to the
French Parent.
3. Mergers.
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(a) AMM Holdings.
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(i) Merger. In accordance with the provisions of this Agreement,
Section 252 of the General Corporation Law of the State of Delaware (the
"Delaware Statute"), and Articles 5.01 and 5.03 through 5.06 of the Texas
Business Corporation Act (the "Texas Statute"), at the AMM Holdings Merger
Effective Time (as hereinafter defined) (A) Textek shall be merged with and into
AMM Holdings, (B) the separate existence of Textek shall thereupon cease, and
(C) AMM Holdings shall continue to exist and shall be the surviving corporation
in the merger (the "AMM Holdings Merger").
(ii) Effective Time. The AMM Holdings Merger shall become effective
on the later to occur of (A) the filing of a Certificate of Merger, in
substantially the form of Exhibit A hereto (the "AMM Holdings Merger
Certificate"), with the Secretary of State of Delaware as provided in Section
252 of the Delaware Statute or (B) the filing of Articles of Merger, in
substantially the form of Exhibit B hereto (the "AMM Holdings Merger Articles"),
with the Secretary of State of Texas as provided in Article 5.04 of the Texas
Statute, or on such subsequent date as is set forth in the AMM Holdings Merger
Certificate and the AMM Holdings Merger Articles (the "AMM Holdings Merger
Effective Time"). AMM Holdings, the surviving corporation, and (to the extent
required) Textek agree to execute and deliver the AMM Holdings Merger
Certificate and the AMM Holdings
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Merger Articles simultaneously herewith and to cause the AMM Holdings Merger
Certificate and the AMM Holdings Merger Articles to be filed promptly hereafter,
together with the Anchor Merger Certificate (as hereinafter defined).
(iii) Effect of the AMM Holdings Merger. At and after the AMM
Holdings Merger Effective Time, AMM Holdings, as the surviving corporation,
shall possess all of the estate, property, rights, privileges, powers and
franchises of each of the constituent corporations; and all of the property,
real, personal and mixed, and all the debts due on whatever account to each of
the constituent corporations, as well as all other choses in action belonging to
each of the constituent corporations, shall be transferred to and vested in AMM
Holdings without further act or deed, and all claims, demands, property and
other interest shall be the property of AMM Holdings, and the title to all real
estate vested in each of the constituent corporations shall not revert or be in
any way impaired by reason of the AMM Holdings Merger, but shall be vested in
AMM Holdings; and all rights of creditors of each of the constituent
corporations shall not in any manner be impaired, nor shall any liability or
obligation, including (without limitation) taxes due or to become due, or any
claims or demand in any cause existing against any of the constituent
corporations, or director or officer thereof, be released or impaired by the AMM
Holdings Merger; and AMM Holdings shall be deemed to have assumed, as the
surviving corporation, and shall be liable for, all liabilities and obligations
of each of the constituent corporations in the same manner and to the same
extent as if AMM Holdings, as the surviving corporation, had itself incurred
such liabilities or obligations, including without limitation the obligations
under the AMM Redemption Note and the Textek Note. Without limiting the
generality of the foregoing, any and all fees and franchise taxes due and unpaid
by Textek to the State of Texas (or any of its governmental authorities) through
the AMM Holdings Merger Effective Time shall be the obligation of, and paid by,
AMM Holdings as the surviving corporation of the AMM Holdings Merger.
(iv) Surviving Corporation. The name of the surviving corporation,
upon effectiveness of the AMM Holdings Merger, shall be AMM Holdings, Inc. The
Certificate of Incorporation of AMM Holdings shall be the Certificate of
Incorporation of AMM Holdings, as the surviving corporation of the AMM Holdings
Merger. The By-laws of AMM Holdings shall be By-laws of AMM Holdings, as the
surviving corporation of the AMM Holdings Merger. The directors and officers of
AMM Holdings, as the surviving corporation of the AMM Holdings Merger, shall be
as follows: the directors shall be X. Xxxxx and Xxxxxxx and the officers shall
be as set forth below, in each case to hold office in accordance with the
Certificate of Incorporation and By-laws of AMM Holdings, as the surviving
corporation of the AMM Holdings Merger.
Name Office
---- ------
Xxxxxx X. Xxxxx Chairman, Chief Executive Officer,
Treasurer and Assistant Secretary
Xxxxxxx X. Xxxxxxx President and Assistant Secretary
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Xxxxxxx X. Best Chief Financial Officer and Secretary
Xxxxxxx X. Red Senior Vice President, Marketing
T. Xxxxxxx Xxxxx Executive Vice President,
Eastern Operations and U.K.
Xxxxxx X. Xxxxxx Executive Vice President, Western Operations
Xxxxxxxx X. xx Xxxxx Executive Vice President, Cosmetics
Xxxxxx X. Xxxxxx Executive Vice President, Oral Care
Xxxx-Xxxxxxx de Boissieu Executive Vice President, France and Portugal
Xxxxxx Xxxxxxxx Vice President, Germany
Xxxxxxx X. Xxxxxx Assistant Secretary
(b) Anchor.
(i) Merger. In accordance with the provisions of this Agreement and
Sections 263 and 264 of the Delaware Statute at the Anchor Merger Effective Time
(as hereinafter defined) (A) Xxxx XX and German Parent shall be merged with and
into Anchor, (B) the separate existence of Xxxx XX and German Parent shall
thereupon cease, and (C) Anchor shall continue to exist and shall be the
surviving corporation in the merger (the "Anchor Merger").
(ii) Effective Time. The Anchor Merger shall become effective on
the date that a Certificate of Merger, in substantially the form of Exhibit C
hereto (the "Anchor Merger Certificate") is filed with the Secretary of State of
Delaware as provided in Sections 263 and 264 of the Delaware Statute or on such
subsequent date as is set forth in the Anchor Merger Certificate (the "Anchor
Merger Effective Time"). Anchor, the surviving corporation, agrees to execute
and deliver the Anchor Merger Certificate simultaneously herewith and to cause
the Anchor Merger Certificate to be filed promptly hereafter, together with the
AMM Holdings Merger Certificate. For purposes of this Agreement, the "Effective
Time" shall mean that moment in time when both the AMM Holdings Effective Time
and the Anchor Merger Effective Time shall have occurred.
(iii) Effect of the Anchor Merger. At and after the Anchor Merger
Effective Time, Anchor, as the surviving corporation, shall possess all of the
estate, property, rights, privileges, powers and franchises of each of the
constituent corporations; and all of the property, real, personal and mixed, and
all the debts due on whatever account to each of the constituent corporations,
as well as all other choses in action belonging to each of the constituent
corporations, shall be transferred to and vested in Anchor without further act
or deed, and all claims, demands, property and other interest shall be the
property of Anchor, and the title to all real estate vested in each of the
constituent corporations shall not revert or be in any way impaired by reason of
the Anchor Merger, but shall be vested in Anchor; and all rights of creditors of
each of the constituent corporations shall not in any manner be impaired, nor
shall
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any liability or obligation, including (without limitation) taxes due or to
become due, or any claims or demand in any cause existing against any of the
constituent corporations, or director or officer thereof, be released or
impaired by the Anchor Merger; and Anchor shall be deemed to have assumed, as
the surviving corporation, and shall be liable for, all liabilities and
obligations of each of the constituent corporations in the same manner and to
the same extent as if Anchor, as the surviving corporation, had itself incurred
such liabilities or obligations, including without limitation the obligations
under the First Redemption Note.
(iv) Surviving Corporation. The name of the surviving
corporation, upon effectiveness of the Anchor Merger, shall be Xxxx Industries,
Inc. The Certificate of Incorporation of Anchor shall be the Certificate of
Incorporation of Xxxx Industries, Inc., as the surviving corporation of the
Anchor Merger. The By-laws of Anchor shall be By-laws of Xxxx Industries, Inc.,
as the surviving corporation of the Anchor Merger. The directors and officers of
Xxxx Industries, Inc., as the surviving corporation of the Anchor Merger, shall
be as follows: the directors shall be X. Xxxxx and Xxxxxxx and the officers
shall be as set forth below, in each case to hold office in accordance with the
Certificate of Incorporation and By-laws of Xxxx Industries, Inc., as the
surviving corporation of the Anchor Merger:
Name Office
---- ------
Xxxxxx X. Xxxxx Chairman, Chief Executive Officer,
Treasurer and Assistant Secretary
Xxxxxxx X. Xxxxxxx President and Assistant Secretary
Xxxxxxx X. Best Chief Financial Officer and Secretary
Xxxxxxx X. Red Senior Vice President, Marketing
T. Xxxxxxx Xxxxx Executive Vice President, Eastern Operations and U.K.
Xxxxxx X. Xxxxxx Executive Vice President, Western Operations
Xxxxxxxx X. xx Xxxxx Executive Vice President, Cosmetics
Xxxxxx X. Xxxxxx Executive Vice President, Oral Care
Xxxx-Xxxxxxx de Boissieu Executive Vice President, France and Portugal
Xxxxxx Xxxxxxxx Vice President, Germany
Xxxxxxx X. Xxxxxx Assistant Secretary
4. Events Upon the Effective Time.
(a) Conversion. At the Effective Time, the equity interest held by any
party to this Agreement in Xxxx XX or AMM Holdings shall automatically be
canceled and retired and shall cease to exist by virtue of the Anchor Merger,
the AMM Holdings Merger (collectively, the "Mergers") and the Reorganization and
without any action on behalf of Xxxx XX or AMM Holdings or the holder thereof
and such equity interest shall be converted effective as of the
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Effective Time into the shares of common stock, $.01 par value, of AMM Holdings
as set forth on Exhibit D hereto.
(b) Contribution to AMM Holdings, LLC. Each of the AMM Holdings
stockholders set forth on Exhibit D hereby contribute all of their capital stock
in AMM Holdings to AMM Holdings, LLC in accordance with the AMM Holdings, LLC
Limited Liability Company Agreement attached hereto as Exhibit E.
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5. Miscellaneous.
(a) Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with, and governed by, the internal laws
of the State of Delaware.
(b) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Each counterpart may be
delivered by telecopier, and each telecopied counterpart shall have the same
force and effect as an original signed counterpart.
[Signatures appear on the following pages.]
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IN WITNESS WHEREOF, and under seal, the parties hereto have executed
this Agreement and Plan of Distribution, Contribution and Merger as of the day
and year first above written.
XXXX PLASTICRAFTERS LIMITED PARTNERSHIP,
by TEXTEK PLASTICS, INC., its sole general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx, CEO
XXXX PLASTICRAFTERS, INC. (DEL)
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx, CEO
MONTERO, INC.
By: /s/ Xxxx Xxxxxxx
--------------------
TEXTEK PLASTICS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx, CEO
AMM HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx, CEO
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ANCHOR ADVANCED PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx, CEO
ANCHOR HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx, CEO
XXXX INDUSTRIES, LLC
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx, Manager
XXXX PLASTICS SARL
By: /s/ Xxxxxx X. Xxxxx
--------------------
XXXX INDUSTRIES GERMANY, LLC
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx, Manager
/s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxxxxx Xxxxx
--------------------
Xxxxxxxxxx Xxxxx
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S&R FOWNES CORP.
By: /s/ Xxxxxxx Xxxxxx
-------------------------
Xxxxxxx Xxxxxx, President
/s/ Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxx Xxxxxxx
-------------------------
Xxxx Xxxxxxx
/s/ Xxxxx Xxxxxx
-------------------------
Xxxxx Xxxxxx
/s/ Xxxxxxx XxXxxxx
-------------------------
Xxxxxxx XxXxxxx
/s/ Yehochai Xxxxxxxxx
-------------------------
Yehochai Xxxxxxxxx
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Pursuant to Section 1 of the foregoing Agreement and Plan of
Distribution, Contribution and Merger and further pursuant to Section 8.03 of
the Reliance LP Agreement, RPI, as the general partner of Reliance LP, hereby
consents to the Reliance LP Spin-Off to MPI and Montero, and by their respective
signatures below, MPI and Montero agree to be bound by the Reliance LP
Agreement.
RELIANCE PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx, CEO
XXXX PLASTICRAFTERS, INC. (DEL)
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx, CEO
MONTERO, INC.
By: /s/ Xxxx Xxxxxxx
--------------------
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Exhibit A AMM Holdings Merger Certificate
Exhibit B AMM Holdings Merger Articles
Exhibit C Anchor Merger Certificate
Exhibit D AMM Holdings Stockholders
Exhibit E AMM Holdings, LLC Limited Liability Company Agreement
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