Exhibit 99.2
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AMENDMENT
This Amendment, effective as of December 9th, 2005 (the "Amendment"),
is made by and between Factory Card Outlet of America Ltd., an Illinois
corporation (the "Company"), and Xxxxxxx Xxxxx (the "Executive"), a resident of
the State of Illinois.
WHEREAS, the Company and the Executive are parties to an Employment
Agreement effective as of December 23, 2004 (the "Employment Agreement"); and
WHEREAS, the Company and the Executive desire to amend the Employment
Agreement;
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, the Company and the Executive agree as follows:
1. Section 2 of the Employment Agreement is hereby amended by
substituting "April 7, 2008" for "April 8, 2006".
2. Section 10(e) of the Employment Agreement is hereby amended
by deleting the "." at the end of the last sentence thereof and adding
the following:
"; provided further that, in the event that any severance
payment hereunder arises from a termination occurring after a
Change in Control, such payment shall be payable by the
Corporation in a single lump sum payment immediately after
such termination. Notwithstanding the foregoing, to the extent
required by Section 409A of the Internal Revenue Code of 1986
(the Code"), any severance payment hereunder to the Executive
shall not be made before the date which is six months after
the date of the Executive's separation from service (within
the meaning of Section 409A(a)(2)(B)(i) of the Code) or, if
earlier, the date of death of the Executive's. In the event
the payment delayed under the immediately preceding sentence
of this Section 10(e) arises from a termination occurring
after Chance in Control, the Corporation shall, prior to the
Executive's termination of employment: (i) create a trust of
the type commonly referred to as a "rabbi" trust with terms
substantially similar (but not identical) to the terms of the
model trust published by the Internal Revenue Service in Rev.
Proc. 92-64 and the other terms specified below (a "Trust");
and (ii) deposit the aggregate amount of such severance
payment into the Trust. The terms of the Trust shall provide:
(i) for a trustee acceptable to the Executive; (ii) that the
funds held by the Trust shall remain the general assets of the
Corporation, which is the grantor of the Trust; (iii) that the
rights of the Executive under the Trust shall be exclusively
unsecured contractual rights; (iv) that the funds deposited in
the trust shall be invested in a money market fund or account
insured by the FDIC; (v) that all income earned on the funds
held by the Trust shall be reported as income by the
Corporation for federal, state, local and foreign tax
purposes; (vi) that the Corporation shall pay all costs of
establishing and maintaining the Trust and shall indemnify the
Trustee against any and all expenses, including attorney fees,
claims, liabilities, loss and damages arising out of or
relating to the establishment and maintenance of the Trust;
(vii) that the Trust shall not be revoked or the principal
invaded by the Corporation unless the Corporation is
"insolvent" as defined for purposes of Rev. Proc. 92 64; and
(viii) that the funds deposited in the Trust and all income
earned on such funds shall be paid to the Executive as soon as
permitted by this Section 10(e)."
3. All capitalized terms not otherwise defined herein have the
meanings ascribed to them in the Employment Agreement.
4. Except as provided herein, all of the provisions of the
Employment Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first above written.
FACTORY CARD OUTLET OF AMERICA LTD.
/s/ Xxxx X. Xxxx
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President and Chief Executive Officer
/s/ Xxxxxxx Xxxxx
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