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-99.4 - 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 99.7
Marcus E. Jundt
1360 12th Street Northeast
Watertown, South Dakota 57201
1360 12th Street Northeast
Watertown, South Dakota 57201
Kona Grill, Inc.
Attn: Mark S. Robinow, Secretary
7150 East Camelback Road, Suite 220
Scottsdale, Arizona 85251
Attn: Mark S. Robinow, Secretary
7150 East Camelback Road, Suite 220
Scottsdale, Arizona 85251
February 3, 2010
VIA FEDERAL EXPRESS AND E-MAIL
Re: | Letter dated January 28, 2010 from Kona Grill, Inc. (the Company) to Marcus E. Jundt. |
To the Secretary of Kona Grill, Inc.:
This letter is sent in response to the Companys letter dated January 28, 2010 (the
Company Letter) addressed to me, which, among other things, stated that my notice of
nomination of a director dated January 25, 2010 and delivered to the Company (the Notice)
was defective and of no effect under the Companys amended and restated by-laws currently
in effect (the Bylaws).
As an initial matter, I, after consultation with securities counsel, respectively
disagree that the Notice was defective under the Bylaws. The Company Letter quoted the
following portion of Section
1.13 of the Bylaws as the relevant portion relating to the stockholder nomination process, and I
therefore assume that the Company felt that the Notice failed to adequately address such
requirements:
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
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)].
The Notice provides my name, age, business address and residence address and principal occupation
or employment, as follows: age 44; business and residential address: 1360 12th Street Northeast,
Watertown, SD 57201; principal occupation or employment: investor. Furthermore, as to the required
disclosures set forth in Regulation 14A of the Exchange Act, my biography contained in the Notice
is taken from the Companys 2009 Proxy Statement filed with the U.S. Securities and Exchange
Commission (the SEC) dated effective March 17, 2009, and from the Companys Form 8-K filed with
the SEC on August 12, 2009 with respect to my Separation Agreement with the Company set forth
therein (collectively, the Previous Filings). I also supplied current information on my
beneficial ownership of the Companys common stock.
If the disclosures set forth in the Previous Filings complied with the relevant SEC
requirements, including without limitation Regulation 14A of the Exchange Act, I do not
understand how the same information no longer complies today. To the extent such Rules were
modified by those certain Rule amendments set forth in the Federal Register on December 23,
2009, with respect to Schedule 14A under Regulation 14A, the biography
set forth in the Notice took these amendments into account, and to the extent
applicable, accordingly modified the disclosures set forth in the Notice. Where no
information was
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required in response to a particular item of Regulation 14A of the Exchange Act, no information was
provided in the Notice. Accordingly, I respectfully disagree with the Companys refusal to give
effect to the Notice and hereby reserve all rights related to such refusal. Your counsel should
contact Martin Rosenbaum of the Maslon firm in Minneapolis (612.672.8326)
(martin.rosenbaum@maslon.com) if they disagree with our assessment.
Furthermore, as an accommodation to the Company and in no way whatsoever acknowledging
any deficiencies in the Notice, I am providing certain additional information to the
Company in hopes of moving the nomination process ahead without any further delay.
The Company Letter requests clarification of the purpose of the Notice. The Bylaws do
not require a Company stockholder to request consideration of the nominating committee and
the Companys board of directors to become a nominee to serve on the Companys board of
directors. To the contrary, the submission of the Notice to the Company eliminates the
need to seek the approval of the nominating committee and board of directors of the
Company. However, based upon my prior executive and board experience with the Company and
the other compelling reasons set forth in the Notice, I respectfully request that the
nominating committee and the Companys board of directors recommend me for election as a
director by the Companys stockholders at the 2010 annual stockholder meeting.
The Companys question about whether I am opposing all of the Companys board of
directors nominees is somewhat confusing and irrelevant under Section 1.13 of the Bylaws.
The Notice validly nominated me, and I intend to appear at the 2010 annual stockholders
meeting of the Company to speak on my own behalf. I hope to receive enough stockholder
votes to be one of the three candidates elected to the board of directors of the Company at
the 2010 annual stockholders meeting. This process involves no active opposition on my part
against any specific nominee of the Companys board of directors. At this time I do not
intend to file materials with the SEC to solicit proxies and respectfully request that the
Company include my name and background information in the 2010 proxy statement and to
include my name on any proxy card with the individuals nominated by the Companys board of
directors for election as a director of the Company. However, I reserve the right to
solicit proxies in connection with the 2010 annual stockholders meeting, either by filing
proxy materials with the SEC or in a manner exempt from filing requirements. In any event,
I am seeking to become a director of the Company in my capacity as a major stockholder of
the Company and as someone who fully intends to serve the interests of all stockholders of
the Company, not as some sort of insurgent opposition, as stated in the Company Letter.
At this time, other than as stated above and in the Notice, I have no intention to
take any other action at the 2010 stockholders meeting of the Company. As stated above, I
believe that the Notice provided to the Company contained all information required by the
Bylaws to nominate a person to the Companys board of directors. I have sent this letter
to the Company as an accommodation only, and it shall not by any means be deemed an
admission that the Notice is defective for any purpose. In the event that the Company
requires more information from me to facilitate the nomination process, please contact me
immediately (480-388-1009) (marcusjundt@yahoo.com) or my counsel, Martin Rosenbaum, so that
we can respond in an appropriate, timely manner.
Sincerely, |
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/s/ Marcus E. Jundt | ||||
cc: | Berke Bakay (via e-mail) Marc A. Buehler (via e-mail) |
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Richard J. Hauser (via postal mail) Douglas G. Hipskind (via e-mail) Anthony L. Winczewski (via e-mail) Mark A. Zesbaugh (via e-mail) Clifford E. Neimeth, Esq. (via e-mail) Scott Weiss, Esq. (via e-mail) Martin R. Rosenbaum (via e-mail) Bradley A. Pederson, Esq. (via e-mail) |
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