Attached files
file | filename |
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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-99.10 - EX-99.10 - KONA GRILL INC | p16840exv99w10.htm |
EX-99.7 - EX-99.7 - KONA GRILL INC | p16840exv99w7.htm |
EX-99.4 - EX-99.4 - KONA GRILL INC | p16840exv99w4.htm |
EX-99.1 - 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 99.6
January 28, 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 January 25, 2010, which was addressed to Mark S. Robinow, the
Secretary of the Company and which was referred by the Companys Secretary to the Companys
Nominating Committee (the Committee) and to the Companys full Board of Directors (the Board).
In the letter, you purport to nominate yourself for election as a director to the Board at the
next annual meeting of the Companys stockholders.
In your letter, you refer to Section 1.13 of the Companys amended and restated by-laws currently
in effect (the By-laws) and your intention to appear at the next annual meeting of the Companys
stockholders, but it is not entirely clear whether you are (a) requesting the Committee to
voluntarily consider you and to review your qualifications as a potential Class II Board nominee
and, thereafter, to make a determination thereof and a recommendation to the full Board pursuant to
the Committees standard review processes and organic authority; (b) seeking to formally notify the
Company under Section 1.13 of the By-laws that you intend to oppose the Boards nominees for
election at the next annual meeting of the Companys stockholders, and in connection therewith,
seek to nominate yourself as an insurgent opposition director candidate and commence your own
opposition solicitation of stockholder votes for use at the next annual meeting of the Companys
stockholders; or (c) indicating your intention to take some other corporate action at the annual
meeting with respect to the election of the Companys directors. We ask you to clarify in writing
your precise intentions.
If your intention is to formally notify the Company and to take the actions specified in clause
(b) of the preceding paragraph or to otherwise seek to nominate yourself at the annual meeting,
the Committee hereby informs you that after having reviewed your letter carefully and having
reported our conclusions to the entire Board, the Committee and the Board have determined that
your letter did not and does not comply with Section 1.13 of the By-laws, including applicable
regulations of the Securities and Exchange Commission (which are incorporated by reference
therein). Accordingly, it is the Committees and the Companys position that your January 25, 2010
letter is defective and of no effect under Section 1.13 of the Bylaws.
To elaborate for your benefit in good faith, we hereby call to your attention that Section 1.13 of
the By-laws establishes and governs the procedural and substantive requirements for stockholder
nominations of candidates for election to the Board. Specifically, Section 1.13 of the By-laws
provides, in relevant part, that:
A stockholders notice to the corporation of nominations for a regular or special
meeting of stockholders shall set forth (A) as to each person whom the stockholder
proposes to nominate for election or re-election as a director: (1) such persons
name, age, business address and residence address and principal
occupation or employment, (2) all other
7150 E. Camelback Road, Suite 220 Scottsdale, AZ 85251 Phone 480-922-8100 Toll Free 1-866-328-5662 Fax 480-991-6811
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or that is otherwise required,
pursuant to Regulation 14A under the Securities Exchange Act of 1934, [as amended
(the (Exchange Act))].
In this regard, to the extent your letter of January 25, 2010 was intended for the purpose
specified in clause (b) of the second paragraph of this correspondence to you, we hereby refer you
to the provisions of Items 103 (Instruction 4), 401, 402, 403, 404(a) and (b), 405, and 407 of
Regulation S-K promulgated under the Exchange Act, and to Items 5(b), 6(d) and (e), 7, and 8 of
Schedule 14A under the Exchange Act.
We further refer you to Rule 14a-9 under the Exchange Act with respect to disclosure of all
information concerning you and your affiliates (a) that you believe would be material for the
Company to know so that the Company may communicate properly with its stockholders, and (b) that
you otherwise believe would be material to the Companys stockholders in the context of making a
fully informed investment or voting decision. Such information would necessarily include, without
limitation, everything that might reasonably impact on your qualifications to serve as a public
company director (and, in particular, as a director of the Company).
In accordance with Section 1.13 of the By-laws, please note that the additional information cited
above must be delivered to the Companys Secretary on or prior to February 6, 2010 in order to be
timely received.
Respectfully, the Committee requests that you timely clarify your precise intentions by more
specifically stating the action(s) that you are requesting that the Company or Board to take, if
any, or that you intend to take.
If you have any further questions relating to the foregoing, please contact the undersigned at
(612) 337-2499.
Very truly yours, |
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/s/ Anthony L. Winczewski | |||||
Anthony L. Winczewski | |||||
Nominating Committee Chairman (On behalf of the Nominating Committee) |
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cc: | Clifford E. Neimeth, Esq. (Greenberg Traurig, LLP) Scott Weiss, Esq. (Greenberg Traurig, LLP) Bradley A. Pederson, Esq. (Maslon Edelman Borman & Brand, LLP) |