**Exhibit 10.1**

 

TULLY’S COFFEE CORPORATION 

1999EMPLOYEE STOCK PURCHASE PLAN 

Tully’s Coffee Corporation (the “Company”) does hereby establish its 1999 Employee StockPurchase Plan (the “Plan”) as follows: 

1. PURPOSE OF PLAN. The purpose of this Plan is to provide eligible employees who wish tobecome shareholders in the Company a convenient method of doing so. It is believed that employee participation in the ownership of the business will be to the mutual benefit of both the employees and the Company. It is the intention of the Companyto have the Plan qualify as an “employee stock purchase plan” under Section 423 of the Internal Revenue Code of 1986. The provisions of the Plan shall, accordingly, be construed so as to extend and limit participation in a mannerconsistent with the requirements of that Section of the Code. 

 

2.1 “BASE PAY” means regularstraight time earnings, plus review cycle bonuses and overtime payments, payments for incentive compensation, and other special payments except to the extent that any such item is specifically excluded by the Board of Directors of the Company (the“Board”). 

2.2 “ACCOUNT” shall mean the funds accumulated with respect to an individual employee as a result ofdeductions from his paycheck for the purpose of purchasing stock under this Plan. The funds allocated to an employee’s account shall remain the property of the respective employee at all times but may be commingled with the general funds of theCompany. 

2.3 “CODE” shall mean the Internal Revenue Code of 1986 as further amended. 

3. EMPLOYEES ELIGIBLE TO PARTICIPATE. Any regular employee of the Company or any of its subsidiaries who is in the employ of the Company on one or moreoffering dates is eligible to participate in the Plan, except (a) employees whose customary employment is twenty (20) hours or less per week, and (b) employees whose customary employment is for not more than five (5) months in anycalendar year. 

4. OFFERINGS. There will be twelve separate consecutive six-month offerings pursuant to the Plan. The first offering shallcommence on January 1, 2000 and terminate June 30, 2000. Thereafter, offerings shall commence on each subsequent July 1 and January 1 and terminate each succeeding December 31 and June 30, and the 

final offering under this Plan shall commence on July 1, 2005 and terminate on December 31, 2005. In order to become eligible to purchase shares,an employee must sign an Enrollment Agreement, and any other necessary papers on or before the commencement date (January 1 or July 1) of the particular offering in which he or she wishes to participate. Participation in one offering under thePlan shall neither limit, nor require, participation in any other offering. 

5. PRICE. The purchase price per share shall be the lesser of:(1) 85% of the fair market value of the stock on the offering date; or (2) 85% of the fair market value of the stock on the last business day of the offering. Fair market value shall mean the closing bid price as reported on the NationalAssociation of Securities Dealers Automated Quotation System (the “NASDAQ”), or if the stock is traded on a stock exchange, the closing price for the stock on the principal such exchange. Until such time as the stock is reported on NASDAQor listed on an exchange, reference to the fair market value shall be determined on such basis as shall be established or specified for that purpose by the Board or by a committee selected by the Board. Notwithstanding any provision of the Plan tothe contrary, no determination made with respect to the fair market value of common stock subject to an option shall be inconsistent with Section 423 of the Code or regulations promulgated thereunder. 

6. OFFERING DATE. The “offering date” as used in this Plan shall be the commencement date of the offering, if such date is a regular businessday, or the first regular business day following such commencement date. A different date may be set by resolution of the Board. 

7. NUMBEROF SHARES TO BE OFFERED. The maximum number of shares that may be offered under the Plan shall not exceed four million two hundred thousand (4,200,000) shares of the Company; provided that a portion of the shares so authorized may be allocated tothe 1994 Stock Option Plan. The number of shares allocated to each plan shall be determined by the Board but shall not exceed four million two hundred thousand (4,200,000) shares for both plans. The shares to be sold to participants under thePlan will be common stock of the Company. If the total number of shares allocated to this Plan for which options are to be granted on any date in accordance with Section 10 exceeds the number of shares then available under the Plan (afterdeduction of all shares for which options have been exercised or are then outstanding), the Company shall make a pro rata allocation of the shares remaining available in as nearly a uniform manner as shall be practicable and as it shall determine tobe equitable. In such event, the payroll deductions to be made pursuant to the authorizations therefor shall be reduced accordingly and the Company shall give written notice of such reduction to each employee affected thereby. 

 

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 8.PARTICIPATION. 
8.1 An eligible employee may become aparticipant by completing an Enrollment Agreement provided by the Company and filing it with Shareholder Services prior to the commencement of the offering to which it relates. 

8.2 Payroll deductions for a participant shall commence on the offering date, and shall end on the termination date of such offering unless earlierterminated by the employee as provided in Paragraph 14. 

 
 9.PAYROLL DEDUCTIONS. 
9.1 At the time a participant fileshis authorization for a payroll deduction, he or she shall elect to have deductions made from his pay on each payday during the time he or she is a participant in an offering at the rate of 2%, 4%, 6%, 8%, or 10% of his base pay. 

9.2 All payroll deductions made for a participant shall be credited to his account under the Plan. A participant may not make any separate cash paymentinto such account nor may payment for shares be made other than by payroll deduction. 

9.3 A participant may discontinue his participationin the Plan as provided in Section 14, but no other change can be made during an offering and, specifically, a participant may not alter the rate of his payroll deductions for that offering. 

10. GRANTING OF OPTION. On the offering date, this Plan shall be deemed to have granted to the participant an option for as many full shares as he or shewill be able to purchase with the payroll deductions credited to his account during his participation in that offering. Nothwithstanding the foregoing, no participant may purchase more than 2,250 shares of stock during any single offering.

11. EXERCISE OF OPTION. Each employee who continues to be a participant in an offering on the last business day of that offering shall bedeemed to have exercised his option on such date and shall be deemed to have purchased from the Company such number of full shares of common stock reserved for the purpose of the Plan as his accumulated payroll deductions on such date will pay forat the option price. 

12. EMPLOYEE’S RIGHTS AS A SHAREHOLDER. No participating employee shall have any right as a shareholder withrespect to any shares until the shares have been purchased in accordance with Section 11 above and the stock has been issued by the Company. 

 

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 13.EVIDENCE OF STOCK OWNERSHIP. 
13.1 Promptly following theend of each offering, the number of shares of common stock purchased by each participant shall be deposited into an account established in the participant’s name at a stock brokerage or other financial services firm designated by the Company(the “ESPP Broker”). 

13.2 The participant may direct, by written notice to the Company at the time of his enrollment in thePlan, that his ESPP Broker account be established in the names of the participant and one other person designated by the participant, as joint tenants with right of survivorship, tenants in common, or community property, to the extent and in themanner permitted by applicable law. 

13.3 A participant shall be free to undertake a disposition (as that term is defined inSection 424(c) of the Code) of the shares in his account at any time, whether by sale, exchange, gift, or other transfer of legal title, but in the absence of such a disposition of the shares, the shares must remain in the participant’saccount at the ESPP Broker until the holding period set forth in Section 423(a) of the Code has been satisfied. With respect to shares for which the Section 423(a) holding period has been satisfied, the participant may move those shares toanother brokerage account of participant’s choosing or request that a stock certificate be issued and delivered to him. 

13.4 Aparticipant who is not subject to payment of U.S. income taxes may move his or her shares to another brokerage account of his or her choosing or request that a stock certificate be issued and delivered to him or her at any time, without regard tothe satisfaction of the Section 423(a) holding period. 

 
 14.WITHDRAWAL. 
14.1 An employee may withdraw from anoffering, in whole but not in part, at any time prior to the last business day of such offering by delivering a Withdrawal Notice to the Company, in which event the Company will refund the entire balance of his or her deductions as soon aspracticable thereafter. 

14.2 To re-enter the Plan, an employee who has previously withdrawn must file a new Enrollment Agreement inaccordance with Section 8.1. The employee’s re-entry into the Plan will not become effective before the beginning of the next offering following the employees’ withdrawal, and if the withdrawing employee is an officer of the Companywithin the meaning of Section 16 of the Securities Exchange Act of 1934, the employee may not re-enter the Plan before the beginning of the second offering following his or her withdrawal. 

15. CARRYOVER OF ACCOUNT. At the termination of each offering the Company shall automatically re-enroll the employee in the next offering, and the

 

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balance in the employee’s account shall be used for option exercises in the new offering, unless the employee has advised the Company otherwise. Upontermination of the Plan, the balance of each employee’s account shall be refunded to him or her. 

16. INTEREST. No interest will bepaid or allowed on any money in the accounts of participating employees. 

17. RIGHTS NOT TRANSFERABLE. No employee shall be permitted tosell, assign, transfer, pledge, or otherwise dispose of or encumber either the payroll deductions credited to that employees account or any rights with regard to the exercise of an option or to receive shares under the Plan other than by will or thelaws of descent and distribution, and such right and interest shall not be liable for, or subject to, the debts, contracts, or liabilities of the employee. If any such action is taken by the employee, or any claim is asserted by any other party inrespect of such right and interest whether by garnishment, levy, attachment or otherwise, such action or claim will be treated as an election to withdraw funds in accordance with Section 14. 

18. TERMINATION OF EMPLOYMENT. Upon termination of employment for any reason whatsoever, including but not limited to death or retirement, the balance inthe account of a participating employee shall be paid to the employee or the employee’s estate. 

19. AMENDMENT OR DISCONTINUANCE OFTHE PLAN. The Board shall have the right to amend, modify, or terminate the Plan at any time without notice, provided that no employee’s existing rights under any offering already made under Section 4 hereof may be adversely affectedthereby, and provided further that no such amendment of the Plan shall, except as provided in Section 20, increase the shares to be offered above the total number of shares to be offered unless shareholder approval is obtained therefor.

20. CHANGES IN CAPITALIZATION. In the event of reorganization, recapitalization, stock split, stock dividend, combination of shares,merger, consolidation, offerings of rights, or any other change in the structure of the common shares of the Company, the Board may make such adjustment, if any, as it may deem appropriate in the number, kind, and the price of shares available forpurchase under the Plan, and in the number of shares which an employee is entitled to purchase. 

21. SHARE OWNERSHIP. Notwithstandinganything herein to the contrary, no employee shall be permitted to subscribe for any shares under the Plan if such employee, immediately after such subscription, owns shares (including all shares which may be purchased under outstandingsubscriptions under the Plan) possessing 5% or more of the total combined voting power or value of all classes of shares of the Company or of its parent or subsidiary corporations. For the foregoing purposes the rules of Section 425(d) of theCode shall apply in determining share ownership. In addition, no employee shall be allowed to subscribe for any shares under the Plan 

 

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which permits him or her rights to purchase shares under all “employee stock purchase plans” (as described in Section 423 of the Code) of theCompany and its subsidiary corporations to accrue at a rate which exceeds $25,000 of the fair market value of such shares (determined at the time such right to subscribe is granted) for each calendar year in which such right to subscribe isoutstanding at any time. 

22. ADMINISTRATION. The Plan shall be administered by the Board. The Board shall be vested with full authority tomake, administer, and interpret such rules and regulations as it deems necessary to administer the Plan, and any determination, decision, or action of the Board in connection with the construction, interpretation, administration, or application ofthe Plan shall be final, conclusive, and binding upon all participants and any and all persons claiming under or through any participant. The Board may delegate any or all of its authority hereunder to such committee as it may designate. 

23. NOTICES. All notices or other communications by a participant to the Company under or in connection with the Plan shall be deemed to have beenduly given when received by Shareholder Services of the Company or when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof. 

24. TERMINATION OF THE PLAN. This Plan shall terminate at the earliest of the following: 

24.1 December 31, 2005. 

24.2 The dateof the filing of a Statement of Intent To Dissolve by the Company or the effective date or a merger or consolidation wherein the Company is not to be the surviving corporation, which merger or consolidation is not between or among corporationsrelated to the Company. Prior to the occurrence of either of such events, on such date as the Company may determine, the Company may permit a participating employee to exercise the option to purchase shares for as many full shares as the balance ofhis account will allow at the price set forth in accordance with Section 5. If the employee elects to purchase shares, the remaining balance of such employees account will be refunded to him or her after such purchase. 

24.3 The date the Board acts to terminate the Plan in accordance with Section 19 above. 

24.4 The date when all shares reserved under the Plan have been purchased. 

25. LIMITATIONS ON SALE OF STOCK PURCHASED UNDER THE PLAN. The Plan is intended to provide common stock for investment and not for resale. The Company 

 

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does not, however intend to restrict or influence any employee in the conduct of his own affairs. An employee, therefore, may sell stock purchased under thePlan at any time he or she chooses, subject to compliance with any applicable Federal or state securities laws. THE EMPLOYEE ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE PRICE OF THE STOCK. 

26. GOVERNMENTAL REGULATION. The Company’s obligation to sell and deliver shares of the Company’s common stock under this Plan is subject tothe approval of any governmental authority required in connection with the authorization, issuance, or sale of such shares. 

 

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