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:
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1.
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Position;
Effort; Term .
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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.
2.1 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.
3.1 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.
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4.
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Protection of Confidential
Information .
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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.
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5.
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Noncompetition and Nonsolicitation of
Employees .
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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.
6.1 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