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EMPLOYMENT AGREEMENT

Employee Retention Agreement

EMPLOYMENT AGREEMENT | Document Parties: Tully's Coffee Corporation You are currently viewing:
This Employee Retention Agreement involves

Tully's Coffee Corporation

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Title: EMPLOYMENT AGREEMENT
Governing Law: Washington     Date: 9/18/2008
Law Firm: Lane Powell    

EMPLOYMENT AGREEMENT, Parties: tully's coffee corporation
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Exhibit 10.15

EMPLOYMENT AGREEMENT

This Agreement is dated effective as of September 1, 2006 by and between Tully’s Coffee Corporation (“Tully’s), and John K. Buller (“Buller”) (collectively, the “Parties”).

Recitals

A. Tully’s desires to employ Buller to serve as the President and Chief Executive Officer (“CEO”) of Tully’s subject to the terms and conditions of this Agreement.

B. Buller has agreed to serve as the President and CEO of Tully’s subject to the terms and conditions of this Agreement.

Agreement

In consideration of the mutual covenants contained herein, and other good and valuable consideration, the Parties agree as follows:

 

1.

Position; Effort; Term .

1.1 Position and Duties. Tully’s and Buller agree that Buller shall serve as the President and CEO of Tully’s and that Buller shall have such duties and responsibilities as are consistent with such position and as are assigned to him by the Tully’s Board of Directors (the “Board”). It is understood that Buller’s responsibilities may be modified or expanded, but not decreased, at any time by the Board in order to accommodate the needs of Tully’s. Buller shall report directly to the Board. Buller shall perform all duties hereunder in accordance with (i) all applicable federal, state and local laws and regulations, and (ii) all company policies adopted by Tully’s Board from time to time.

1.2 Efforts. Buller agrees to devote his full-time efforts to his duties with Tully’s and agrees that he will not directly or indirectly engage in or participate in any activities that would conflict with the best interests of Tully’s. It is further agreed and understood that as the President and CEO of Tully’s, the hours which Buller is required to work, will vary considerably and will frequently require more than 40 hours per week. It is understood and agreed that such work in excess of 40 hours per week is a regular and normal part of Buller’s responsibilities for which he is compensated, and does not in any way constitute overtime for which Buller is entitled to receive additional compensation.

1.3 Term. Except as provided in Section 6, Tully’s shall employ Buller for the period commencing on August 21, 2006 (the “Effective Date”) and continuing until this Agreement is terminated in accordance with Section 6. The period during which Buller is employed pursuant to the terms of this Agreement shall be referred to herein as the Employment Period. Sections 4, 5, 6.8, 7.3 and 7.6 shall survive the termination of this Agreement.

1.4 Board Seat. The parties acknowledge that Buller is currently a member of the board of directors of Tully’s (the “Board of Directors”). The parties acknowledge and agree that, subject to reelection by the Tully’s Shareholders at each annual meeting, Buller shall continue to be a member of the Board of Directors following his execution of this Agreement and throughout the Employment Period.

 

2.

Cash Compensation .

2.1 Base Salary. For all services rendered by Buller under this Agreement, Tully’s shall pay Buller a base salary. Buller’s initial annual base salary shall be $200,000.00. The Board shall review Buller’s base salary in September of each year and confirm the base salary amount in writing; provided that, absent the mutual agreement of the Parties, Buller’s annual base salary shall at no time be less $200,000. Buller shall be paid his base salary on regularly scheduled pay dates applicable to employees of Tully’s generally, minus all lawful and agreed upon payroll deductions. The Board, in its sole discretion, may increase Buller’s base salary to take into account any change in his responsibilities, performance or other pertinent factors.


2.2 Incentive Compensation and Bonus Plan. In addition to the base salary, Buller shall be eligible for additional compensation based on the incentive and bonus plan (the “Incentive Plan”) generally described in the attached Exhibit A. The agreed upon Incentive Plan shall be attached as an addendum to this Agreement. In order to be eligible to receive additional compensation pursuant to the Incentive Plan, Buller must be employed by the Company under this Agreement at the time of payment or delivery of any compensation or benefits called for under the Incentive Plan; provided, that this shall not prevent Buller from receiving any bonus compensation that has been fully earned as a result of having met applicable bonus requirements. All lawful withholdings and deductions will be made prior to payment of any amounts payable under this Section.

 

3.

Other Benefits .

3.1 Employee Benefit Programs. Tully’s and Buller agree that during the term of this Agreement, Buller shall be entitled to participate in all employee benefit programs of Tully’s as may be authorized and adopted from time to time by Tully’s and for which Buller is eligible, including the benefits described in the attached Exhibit B. In addition, Tully’s shall provide Buller a monthly car allowance equal to $650.00, payable in advance each month during the Employment Period.

3.2 Vacation and Sick Leave. Buller shall be entitled to four weeks paid vacation per calendar year. Buller shall be entitled to sick leave in accordance with Tully’s policies in effect from time to time.

3.3 Expenses. Tully’s shall reimburse Buller for all actual out-of-pocket expenses reasonably related to carrying out his duties and responsibilities under this Agreement in accordance with Tully’s established policies in effect from time to time.

3.4 Stock Options. Upon the execution of this Agreement, the parties shall also enter into a Stock Option Agreement substantially in the form attached hereto as Exhibit C (the “Stock Option Agreement”). The Stock Option Agreement shall provide for options (the “Stock Options”) to purchase 500,000 shares of Tully’s common voting stock. Subject to Buller still being a Tully’s employee on the applicable vesting date, the Stock Options shall vest as follows: (i) 100,000 of the Stock Options shall vest upon the execution of this Agreement by both parties, (ii) 100,000 of the Stock Options shall vest on the first anniversary of the Effective Date, (iii) 100,000 of the Stock Options shall vest on the second anniversary of the Effective Date, (iv) 100,000 shall vest on the third anniversary of the Effective Date, and (v) the final 100,000 of the Stock Options shall vest on the fourth anniversary of the Effective Date. The exercise price for each of the Stock Options shall be at $1.50 per share.

Except as otherwise provided for herein, all of the Stock Options shall be subject to the terms and conditions contained in the Stock Option Agreement. Except as otherwise set forth in Sections’ 6.5 and 6.6 with respect to the acceleration of certain Stock Options, all Stock Options which have not vested as of the date of Executive’s termination of employment with the Company shall be deemed to be forfeited. Upon the occurrence of a Change in Control as provided for Section 6.6 below, all of Buller’s unvested Stock Options shall be accelerated and become fully vested.

Issuance of the Stock Options and any shares related thereto shall be made only in accordance with all applicable state and federal securities laws.

The $1.50 exercise price for the Stock Options represents Tully’s current estimate of the fair market value of its common stock.

 

4.

Protection of Confidential Information .

4.1 Confidential Information. Buller recognizes that during the course of employment with Tully’s, Buller will have access to certain trade secrets, customer lists, drawings, designs, marketing plans, management organization information (including, without limitation, data and other information relating to members of the Board of Directors and other management personnel of Tully’s), operating policies or manuals, business plans, financial records, or other financial, commercial, business or technical information relating or belonging to Tully’s or information designated or considered as confidential or proprietary that Tully’s may receive belonging to suppliers, customers or others who do business with Tully’s (collectively, “Confidential Information”). As used herein, Confidential Information does not include any information that has been previously disclosed to the public by Tully’s or is in the public domain (other than by reason of Buller’s breach of this Section 4.1 ). Buller agrees that all


Confidential Information shall remain the exclusive property of Tully’s. In any dispute over whether information is Confidential Information for purposes of enforcement of this Agreement, it shall be the burden of Buller to show both that such contested information is not Confidential Information within the meaning of the Agreement, and that it does not constitute a trade secret under the laws of the State of Washington.

For purposes of this Agreement and without limiting the foregoing description of Confidential Information, “Confidential Information” includes: all nonpublic information relating to Tully’s and all information regarding Tully’s current or former employees, investors and customers. Examples of Confidential Information include, without limitation: the identities of past, present or potential customers, investors or employees, marketing plans, contract information, trade secrets as defined by Washington law, and any other sorts of items or information regarding Tully’s or its customers, investors or employees that are not generally known to the public at large.

4.2 Nondisclosure of Confidential Information. At all times during and following Buller’s employment with Tully’s, except to the extent required by an order of a court having competent jurisdiction or under subpoena from an appropriate government agency, Buller agrees not to disclose to anyone outside Tully’s, nor to use for any purpose other than Buller’s work for Tully’s and for Tully’s benefit, (i) any Confidential Information or (ii) any information Tully’s has received from others which Tully’s is obligated to treat as confidential or proprietary.

4.3 Return of Confidential Information. When Buller’s employment ends and at any other time at Tully’s request, Buller shall promptly give Tully’s all materials containing Confidential Information that Buller has or controls.

 

5.

Noncompetition and Nonsolicitation of Employees .

5.1 Noncompetition. During the Employment Period and during the one-year period immediately following the end of the Employment Period (collectively, the “Restriction Period”), Buller shall not, directly or indirectly, engage in, or become associated with any entity, whether as principal, partner, member, employee, consultant or shareholder (other than as a holder of not in excess of 1% of the outstanding voting shares of any publicly traded company), that, as a material part of their business, engages in the Specialty Coffee Business (as defined below) in any of the geographic areas in which the Company has conducted business during the Employment Period. As used herein, the “Specialty Coffee Business” means (i) the business of developing and operating specialty stores featuring the sale of coffee drinks, teas and/or other beverages; and/or (ii) the wholesale distribution of whole coffee beans, ground coffee and coffee drinks.

5.2 Nonsolicitation. During the Restriction Period, Buller shall not directly or indirectly solicit any employee to leave his or her employment with Tully’s. In addition, Buller shall not (a) disclose to any third party the names, backgrounds or qualifications of any Tully employees or otherwise identify them as potential candidates for employment; (b) personally or through any other person approach, recruit or otherwise solicit employees of Tully’s to work for any other employer; or (c) participate in any pre-employment interviews with any person who was employed by Tully’s while Buller was employed by Tully’s.

5.3 Acknowledgement re Restrictions in Sections’ 4 and 5. Buller acknowledges and agrees that his covenants and obligations with respect to confidentiality, Tully’s property, and nonsolicitation of employees contained in Sections’ 4 and 5 of this Agreement relate to special, unique and extraordinary matters and that a violation of any of the terms of such covenants or obligations will cause Tully’s irreparable injury for which adequate remedies are not available solely at law. Therefore, Buller agrees that Tully’s shall be entitled to an injunction, restraining order or such other equitable relief (without the requirement to post bond) restraining Buller from committing any violation of the covenants and obligations set forth in Sections 4 and 5 of this Agreement. These injunctive remedies are cumulative and are in addition to any other rights and remedies that Tully’s may have at law or in equity.

Buller acknowledges and agrees that, given Buller’s experience, knowledge and position with Tully’s, the restrictions contained in Sections 4 and 5 of this Agreement are reasonable and necessary in order for Tully’s to protect its reasonable business interests.


6.

Termination .

6.1 Mutual Agreement. During the Employment Period, Buller’s employment may be terminated at any time by mutual agreement of the parties hereto on terms to be negotiated at the time of such termination.

6.2 Termination by Employee. Buller may also terminate this Agreement on thirty days’ written notice to Tully’s at the address listed below. The notice will be effective on the date that it is postmarked for delivery by the U.S. postal service, or accepted by an alternative delivery service. If Buller terminates this Agreement there shall be no severance obligations in connection with such termination.

6.3 Death or Disability. During the Employment Period, this Agreement shall terminate automatically (i) upon Buller’s death, or (ii) due to a physical or mental disability or infirmity that prevents the performance of Buller’s employment related duties hereunder for a period of six months or longer (a “Disability”).

6.4 Termination by Tully’s For Cause. During the Employment Period, Buller’s employment hereunder may be terminated for “Cause” by Tully’s effective immediately upon delivery of written notice thereof to Buller. “Cause” shall mean (i) commission by Buller of any act of theft, fraud, or dishonesty with respect to Tully’s business; (ii) breach by Buller of any of the material terms and conditions of this Agreement which breach is not remedied to Tully’s satisfaction within ten days of written notice of the same to Buller; (iii) Buller’s engaging in willful and serious misconduct that is injurious to Tully’s reputation or business; or (iv) Buller’s having been convicted of, or entered a plea of guilty or nolo contendere to, a crime that constitutes a felony or which arises out of any act involving moral turpitude.

If Tully’s terminates this Agreement for Cause, there shall be no severance payment obligations due in connection with such termination.

6.5 Termination by Tully’s Without Cause. During the Employment Period, Buller’s employment hereunder may be terminated “Without Cause” by Tully’s, effective upon (at Tully’s sole option) between 5 and 30 days’ prior written notice of such termination delivered by Tully’s to Buller at the address listed below. A termination “Without Cause” shall mean a termination of Buller’s employment by Tully’s during the Employment Period for any reason other than Cause, as defined in Section 6.4 , or by reason of Buller’s death or Disability.

If Tully’s terminates Buller’s employment under this Agreement “Without Cause” during the first 18 months after the Effective Date, Buller shall receive severance equal to two years of Buller’s then current base salary, with such severance to be paid out monthly in accordance with Tully’s payroll practices as in effect from time to time, plus a one-time cash payment of $100,000.00.

If Tully’s terminates Buller’s employment under this Agreement “Without Cause” at any time after 18 months after the Effective Date, Buller shall receive severance equal to one year of Buller’s then current base salary, with such severance to be paid out monthly in accordance with Tully’s payroll practices as in effect from time to time.

If Tully’s terminates Buller’s employment under this Agreement “Without Cause” at any time, all Stock Options (as defined above) that would have vested (had Buller’s employment continued) during the one year period after the effective date of his employment termination shall vest as of the effective date for the termination of Buller’s employment.

If Buller’s employment with Tully’s is terminated by a third party in connection with the filing by or against Tully’s of a petition under the Federal Bankruptcy Code, Buller shall be deemed to have been terminated by Tully’s Without Cause under this Section 6.5 and shall be entitled to receive severance as provided for in this Section 6.5.

In addition, if a Change in Control occurs within four (4) months of the effective date of Buller’s termination Without Cause by the Company, Buller shall, at his sole option, have the right to elect to receive the severance payments and vesting set forth in Section 6.6 below in lieu of receiving any of the severance payments and vesting provided for in this Section 6.5.

6.6 Termination in Connection with a Change of Control. If Buller’s employment with the Tully’s is terminated by Tully’s or a third party as a result of the occurrence of a Change in Control or by


Tully’s (i) Buller shall be entitled to receive severance equal to two (2) years of Buller’s then current base salary, with such severance to be paid out monthly in accordance with Tully’s payroll practices as in effect from time to time; (ii) accelerated vesting of 100% of Buller’s Stock Options; and (iii) a one-tine payment of $100,000.

As used herein, the phrase “Change in Control” shall mean either (i)&n


 
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