Attached files
file | filename |
---|---|
8-K - FORM 8-K - KONA GRILL INC | p16840e8vk.htm |
EX-99.2 - EX-99.2 - KONA GRILL INC | p16840exv99w2.htm |
EX-99.9 - EX-99.9 - KONA GRILL INC | p16840exv99w9.htm |
EX-99.8 - EX-99.8 - KONA GRILL INC | p16840exv99w8.htm |
EX-99.7 - EX-99.7 - KONA GRILL INC | p16840exv99w7.htm |
EX-99.4 - EX-99.4 - KONA GRILL INC | p16840exv99w4.htm |
EX-99.6 - EX-99.6 - KONA GRILL INC | p16840exv99w6.htm |
EX-99.1 - EX-99.1 - KONA GRILL INC | p16840exv99w1.htm |
EX-99.3 - EX-99.3 - KONA GRILL INC | p16840exv99w3.htm |
EX-99.5 - EX-99.5 - KONA GRILL INC | p16840exv99w5.htm |
Exhibit 99.10
February 6, 2010
VIA ELECTRONIC MAIL AND UPS
Mr. Marcus E. Jundt
1360 12th Street Northeast
Watertown, South Dakota 57201
1360 12th Street Northeast
Watertown, South Dakota 57201
Dear Mr. Jundt:
We received your letter dated February 5, 2010, which was addressed to Tony Winczewski,, Chairman
of the Companys Nominating Committee (the Committee) and referred by him to the Companys full
Board of Directors (the Board).
The Committee, together with the Companys professional advisors, has carefully reviewed your
correspondences to date, as a whole, with respect to the requirements of Section 1.13 of the
By-laws, and has reported the results of such review to the Board. Based on such review, the
Committee has determined that your letter omits therein (including the Exchange Act and other
filings made by you which you have incorporated by reference in your letter) certain disclosures
required by Regulation S-K and Schedule 14A and, to that extent, it does not comply in all
technical respects, with the requirements of Section 1.13 of the By-laws.
However, because the Committee and the Board otherwise have determined that, collectively, your
February 5 letter, together with your prior correspondences to the Committee, substantially comply
on their face with the requirements of Section 1.13 of the By-laws, the Company in good faith, but
subject to the accuracy and completeness of all information, representations, and undertakings made
by you in your correspondences, and further subject to your compliance with Rule 14a-9 referred to
below, is not rejecting and hereby does accept the validity of your letter for purposes of Section
1.13 of the By-laws.
This foregoing acceptance by the Committee is subject to and assumes your compliance with Rule
14a-9 under the Exchange Act with respect to the requirement to make complete and accurate
disclosure of all information relating to you and each of your affiliates, associates and
participants in any solicitation (as such terms are defined in Rule 12b-2 , Rule 14a-1 and
Items 4 and 5 of Schedule 14A, respectfully, under the Exchange Act) undertaken by you or any such
other persons or entities (i) that you know or should have reason to know would be material to the
Companys stockholders to enable them to make a fully informed investment or voting decision and
(ii) that you know or should have reason to know the Company would deem material (and, therefore,
should be made aware of) to enable it to fully and accurately communicate with the Companys
stockholders, as necessary.
Moreover, to be clear, as you were notified in the Companys February 4, 2010 correspondence,
neither the Committee nor the Board will nominate you as a Board nominee or recommend you as a
candidate for election as a Company director in connection with the Companys 2010 annual meeting
of stockholders. The Committee and the Board hereby further confirm to you that your name and
background information will not appear as an insurgent (opposition), non-Board nominated director
candidate in any of the Companys proxy materials, including, without limitation, the Companys
proxy statement for the 2010 annual meeting of stockholders or on the Companys proxy card for use
in connection with such meeting.
This letter does not constitute a waiver, express or implied, of any claims the Company may have
against you and your affiliates or associates, and any participants in any solicitation that
you may undertake or that the Company may assert in respect of any activity undertaken by you and
your affiliates or associates arising out of or in connection with the matters set forth in your
letter or any other matter.
If you have any further questions relating to the foregoing, please contact the undersigned at
(612) 337-2499.
Very truly yours, |
||||
/s/ Anthony L. Winczewski | ||||
Anthony L. Winczewski | ||||
Nominating Committee Chairman (On behalf of the Nominating Committee) |
cc: | Clifford E. Neimeth, Esq. (Greenberg Traurig, LLP) Scott K. Weiss, Esq. (Greenberg Traurig, LLP) Martin R. Rosenbaum, Esq. (Maslon Edelman Borman & Brand, LLP) Bradley A. Pederson, Esq. (Maslon Edelman Borman & Brand, LLP) |
2