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EXHIBIT 10.6
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AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (hereinafter called "Amendment")
made and entered into this 30th day of August, 1996, by and between IMAGE
INDUSTRIES, INC., a Delaware corporation (hereinafter called the "Company"), H.
XXXX XXXXXXX, a resident of Georgia (hereinafter called "Employee") and THE
MAXIM GROUP, INC., a Delaware corporation (hereinafter called "Maxim").
W I T N E S S E T H
WHEREAS, Employee and Company entered into an Employment Agreement
dated July 30, 1993 (the "Employment Agreement"), which the parties wish to
hereby amend, and
WHEREAS, the Company and Maxim have entered into an Agreement and Plan
of Reorganization (the "Merger Agreement") dated May 31, 1996 whereby the
Company would become a wholly owned subsidiary of Maxim and which contemplates
that Employee will continue to serve as President and Chief Executive Officer of
the Company and also serve in certain capacities with Maxim, all as set forth
herein.
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants contained herein and other good and valuable considerations the
receipt and legal sufficiency of which are hereby acknowledged, the parties
hereto do hereby agree as follows:
1. DUTIES. Section 2 of the Employment Agreement is hereby amended by
adding thereto the following:
"Without limitation of the foregoing, the Company hereby delegates to
the Employee (subject to the exercise by the Board of Directors of the
Company of its fiduciary duties in respect of such matters) the
following additional rights and responsibilities during the Term:
primary responsibility for directing all business activities of the
Company, including implementation of the Company's annual business plan
implementation of the Company's expenditures plan including the
Company's 1997 Capital Expenditure Plan, overseeing the hiring and
firing of all employees of the Company, directing the Company's carpet
manufacturing and PET recycling operations, and all other aspects of
the business of the Company not expressly reserved by contract or law
to the Board of Directors of the Company. Employee acknowledges the
Board of Directors reserves the right to, among other things, set all
bonuses for employees of the Company, if any, dictate capital
expenditures subsequent to the period noted above, set compensation for
Employee other than as required hereby, and offer employment agreements
to the Company's employees. The Company hereby represents and warrants
that the Company's 1997 Capital Expenditure Plan has been approved by
the Company's Board of Directors, and will not be amended without the
consent of the Employee.
2. BASE SALARY. Section 3(a) of the Agreement is hereby amended by (i)
deleting therefrom the term "Two Hundred Fifty Thousand Dollars ($250.000)" and
substituting therefor the term "Two Hundred Ninety Five Thousand Dollars
($295,000)"; and (ii) amending the second
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sentence thereof to read, in its entirety: "For purposes hereof, the term "year"
shall mean the consolidated fiscal year of the Company and its parent
corporation, The Maxim Group, Inc."
3. CHANGE OF CONTROL. Section 4.2 of the Agreement shall be amended by
adding thereto the following sentence:
"For purposes of this Section 4.2: (i) the term "Company" shall mean
either of the Company or its parent corporation, The Maxim Group, Inc.,
for so long as not less than 50% of the outstanding voting securities
of the Company are owned by Maxim; and (ii) the transaction pursuant to
which Maxim has initially acquired ownership of all the outstanding
voting stock of the Company shall not constitute a "change of control"
for purposes of this Agreement."
4. TERM. Section 6 of the Agreement is hereby amended by deleting
therefrom the term "three (3) years" and substituting therefor the term "five
(5) years".
5. PROPRIETARY INFORMATION; INVENTIONS IN THE FIELD. Section 8 of the
Agreement is hereby amended by adding thereto the following subsection 8.5:
"8.5 Definition. For purposes of this Section 8, the term
"Company" shall mean each of the Company and its parent corporation,
The Maxim Group, Inc."
6. PROTECTIVE COVENANTS. Section 9 of the Agreement is hereby amended
by adding thereto the following subsection 9.4:
"9.4 For purposes of this Section 9, the term "Company" shall
mean both the Company and its parent corporation, The Maxim Group,
Inc."
7. REMEDIES. Section 10 of the Agreement is hereby amended by adding
thereto the following sentence:
"For purposes of this Section 10, the term "Company shall mean both the
Company and its parent corporation, The Maxim Group, Inc."
8. COVENANTS OF MAXIM. The Agreement is hereby further amended by
adding thereto the following Section 13:
"13. Covenants of Maxim.
13.1 Guaranty of Maxim. Maxim hereby guarantees the
obligations of the Company hereunder.
13.2 Election as Officer of Maxim. During the Term of this
agreement, Maxim shall cause the Employee to be elected as a Senior
Executive Vice President of Maxim.
13.3 Board Participation. Throughout the Term hereof, Maxim
shall use its best efforts to cause the employee to be nominated for
and to be elected as a member of the
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Board of Directors of Maxim. Throughout the Term hereof, Maxim
will vote its shares of the Company in favor of election of a Board of
Directors comprised of: (i) a designee of the Chief Executive Officer
of Maxim; (ii) the Employee; (iii) Xxxxx X. Xxxxxx, provided Xx.
Xxxxxx is then employed as an executive officer of the Company or of
Maxim; and (iv) two other individuals designated: (a) for so long as
Xx. Xxxxxx is employed as an executive officer of either the Company
or of Maxim, by mutual agreement of the Employee and Xx. Xxxxxx; or
(b) if the condition in clause (a) does not apply, by the Employee."
9. CONTINUED EFFECT. Except as hereby amended, the Employment Agreement
shall be unchanged and shall remain in full force and effect. This Amendment
shall be effective at the Effective Time, as defined in the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have hereinafter set forth their
hands and seals, effective as of the date first above written.
EMPLOYEE
/s/ H. Xxxx Xxxxxxx
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H. XXXX XXXXXXX
COMPANY
IMAGE INDUSTRIES, INC.
By:/s/ Xxxxx X. Xxxxxx
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Signature
Chairman
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Name and Title
MAXIM
THE MAXIM GROUP, INC.
By:/s/ X.X. Xxxxxx
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Signature
President
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Name and Title
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