Amendment No. 12 to Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Oo9/6FGWif08NGNE9J7gpbbmAZD5dgt5HH9Nwx8xTawAkDU+51iePxCcILKaFbnh pdPYNfBUqU1/Q1AGs1GiCA== 0001193125-10-067219.txt : 20100325 0001193125-10-067219.hdr.sgml : 20100325 20100325165934 ACCESSION NUMBER: 0001193125-10-067219 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20100325 DATE AS OF CHANGE: 20100325 GROUP MEMBERS: MILL ROAD CAPITAL GP LLC GROUP MEMBERS: SCOTT P. SCHARFMAN GROUP MEMBERS: THOMAS E. LYNCH SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: KONA GRILL INC CENTRAL INDEX KEY: 0001265572 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 200216690 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-81402 FILM NUMBER: 10705080 BUSINESS ADDRESS: STREET 1: 7150 EAST CAMELBACK ROAD STREET 2: SUITE 220 CITY: SCOTTSDALE STATE: AZ ZIP: 85251 BUSINESS PHONE: 4809228100 MAIL ADDRESS: STREET 1: 7150 EAST CAMELBACK ROAD STREET 2: SUITE 220 CITY: SCOTTSDALE STATE: AZ ZIP: 85251 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Mill Road Capital, L.P. CENTRAL INDEX KEY: 0001435260 IRS NUMBER: 205432103 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: TWO SOUND VIEW DRIVE STREET 2: SUITE 300 CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 203-987-3500 MAIL ADDRESS: STREET 1: TWO SOUND VIEW DRIVE STREET 2: SUITE 300 CITY: GREENWICH STATE: CT ZIP: 06830 SC 13D/A 1 dsc13da.htm AMENDMENT NO. 12 TO SCHEDULE 13D Amendment No. 12 to Schedule 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 12)*

Kona Grill, Inc.

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

50047H201

(CUSIP Number)

Mill Road Capital, L.P.

Attn: Thomas E. Lynch

382 Greenwich Avenue

Suite One

Greenwich, CT 06830

203-987-3501

With a copy to:

Peter M. Rosenblum, Esq.

Foley Hoag LLP

155 Seaport Blvd.

Boston, MA 02210

617-832-1151

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

March 23, 2010

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are sent.

The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).


CUSIP No. 50047H201				13D	Page 2 of 8 Pages
1.	Names of reporting persons. Thomas E. Lynch
2.	Check the appropriate box if a member of a group (see instructions) (a) ¨ (b) ¨
3.	SEC use only
4.	Source of funds (see instructions) OO
5.	Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) ¨
6.	Citizenship or place of organization USA
Number of shares beneficially owned by each reporting person with		7.	Sole voting power
		8.	Shared voting power 899,330
		9.	Sole dispositive power
		10.	Shared dispositive power 899,330
11.	Aggregate amount beneficially owned by each reporting person 899,330
12.	Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
13.	Percent of class represented by amount in Row (11) 9.8%
14.	Type of reporting person (see instructions) IN; HC


CUSIP No. 50047H201				13D	Page 3 of 8 Pages
1.	Names of reporting persons. Scott P. Scharfman
2.	Check the appropriate box if a member of a group (see instructions) (a) ¨ (b) ¨
3.	SEC use only
4.	Source of funds (see instructions) OO
5.	Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) ¨
6.	Citizenship or place of organization USA
Number of shares beneficially owned by each reporting person with		7.	Sole voting power
		8.	Shared voting power 899,330
		9.	Sole dispositive power
		10.	Shared dispositive power 899,330
11.	Aggregate amount beneficially owned by each reporting person 899,330
12.	Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
13.	Percent of class represented by amount in Row (11) 9.8%
14.	Type of reporting person (see instructions) IN; HC


CUSIP No. 50047H201				13D	Page 4 of 8 Pages
1.	Names of reporting persons Mill Road Capital GP LLC
2.	Check the appropriate box if a member of a group (see instructions) (a) ¨ (b) ¨
3.	SEC use only
4.	Source of funds (see instructions) OO
5.	Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) ¨
6.	Citizenship or place of organization Delaware
Number of shares beneficially owned by each reporting person with		7.	Sole voting power 899,330
		8.	Shared voting power
		9.	Sole dispositive power 899,330
		10.	Shared dispositive power
11.	Aggregate amount beneficially owned by each reporting person 899,330
12.	Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
13.	Percent of class represented by amount in Row (11) 9.8%
14.	Type of reporting person (see instructions) OO; HC


CUSIP No. 50047H201				13D	Page 5 of 8 Pages
1.	Names of reporting persons. Mill Road Capital, L.P.
2.	Check the appropriate box if a member of a group (see instructions) (a) ¨ (b) ¨
3.	SEC use only
4.	Source of funds (see instructions) WC
5.	Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) ¨
6.	Citizenship or place of organization Delaware
Number of shares beneficially owned by each reporting person with		7.	Sole voting power 899,330
		8.	Shared voting power
		9.	Sole dispositive power 899,330
		10.	Shared dispositive power
11.	Aggregate amount beneficially owned by each reporting person 899,330
12.	Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
13.	Percent of class represented by amount in Row (11) 9.8%
14.	Type of reporting person (see instructions) PN


CUSIP No. 50047H201		Page 6 of 8 Pages

This Amendment No. 12 to the joint statement on Schedule 13D with respect to the common stock, par value $0.01 per share, of Kona Grill, Inc., a Delaware corporation, filed by the undersigned on June 26, 2008, as amended by Amendment No. 1 thereto filed on November 14, 2008, by Amendment No. 2 thereto filed on December 30, 2008, by Amendment No. 3 thereto filed on January 2, 2009, by Amendment No. 4 thereto filed on January 30, 2009, by Amendment No. 5 thereto filed on March 12, 2009, by Amendment No. 6 thereto filed on April 15, 2009, by Amendment No. 7 thereto filed on May 18, 2009, by Amendment No. 8 thereto filed on June 3, 2009, by Amendment No. 9 thereto filed on January 29, 2010, by Amendment No. 10 thereto filed on February 22, 2010, and by Amendment No. 11 thereto filed on March 12, 2010 (collectively, the “Schedule 13D”), further amends and supplements the Schedule 13D as follows:

1.	Item 4 of the Schedule 13D shall hereby be amended by inserting the following three paragraphs between the twelfth and thirteenth paragraphs:

“On March 17, 2010, the Fund received a letter from counsel to the Issuer, attached hereto as Exhibit 27, in response to the Fund’s letter dated March 10, 2010 demanding the opportunity to inspect and make copies of certain books and records of the Issuer related to the resignation of Marcus E. Jundt or the preparation, negotiation and execution of the Executive Employment Agreement, dated as of May 11, 2009, or the Separation Agreement and Release of Claims, dated as of August 6, 2009, each between the Issuer and Mr. Jundt. The Issuer’s counsel stated that the Issuer intends to accommodate the Fund to the extent legally required, but that prior to making available for inspection and copying books and records of the Issuer responsive to the Fund’s March 10, 2010 letter, the Issuer’s Board of Directors will require the Fund to execute a confidentiality agreement acceptable to the Board of Directors.

On March 23, 2010, the Fund filed a preliminary proxy statement on Schedule 14A with the Securities and Exchange Commission, in connection with the Fund’s potential solicitation of proxies in support of the Nominees.

STOCKHOLDERS OF KONA GRILL, INC. ARE ADVISED TO READ THE PROXY STATEMENT, GOLD PROXY CARD AND ANY OTHER DOCUMENTS RELATED TO THE SOLICITATION OF PROXIES IN SUPPORT OF THE NOMINEES FOR USE AT THE ANNUAL MEETING WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION, INCLUDING INFORMATION RELATING TO THE PARTICIPANTS IN THE PROXY SOLICITATION. THE DEFINITIVE PROXY STATEMENT AND GOLD PROXY CARD WILL BE AVAILABLE TO THE STOCKHOLDERS OF KONA GRILL, INC. FROM THE PARTICIPANTS AT NO CHARGE, BY CONTACTING OUR PROXY SOLICITOR, INVESTORCOM, INC., BY PHONE TOLL-FREE AT 1-877-972-0090, AND WILL ALSO BE AVAILABLE AT NO CHARGE AT THE SECURITIES AND EXCHANGE COMMISSION’S WEBSITE AT WWW.SEC.GOV.”


CUSIP No. 50047H201		Page 7 of 8 Pages

2.	Item 5(c) of the Schedule 13D shall hereby be amended and restated in full as follows:

“(c) No Reporting Person effected any transaction in shares of the Common Stock from March 12, 2010 (the date of the most recent filing on Schedule 13D by the Reporting Persons with respect to the Common Stock) to March 25, 2010.”

3.	Item 7 of the Schedule 13D shall hereby be amended by adding the following Exhibit:

“Exhibit 27 Letter from the Issuer’s counsel to Mill Road Capital, L.P. dated March 17, 2010.”


CUSIP No. 50047H201		Page 8 of 8 Pages

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.


DATE: March 25, 2010

MILL ROAD CAPITAL, L.P.

BY:		Mill Road Capital GP LLC, its General Partner

By:		/s/ Justin C. Jacobs
		Justin C. Jacobs
		Management Committee Director

MILL ROAD CAPITAL GP LLC

By:		/s/ Justin C. Jacobs
		Justin C. Jacobs
		Management Committee Director

THOMAS E. LYNCH

By:		/s/ Justin C. Jacobs
		Justin C. Jacobs, attorney-in-fact

SCOTT P. SCHARFMAN

By:		/s/ Justin C. Jacobs
		Justin C. Jacobs, attorney-in-fact

EX-99.27 2 dex9927.htm LETTER FROM THE ISSUER'S COUNSEL TO MILL ROAD CAPITAL, L.P. Letter from the Issuer's counsel to Mill Road Capital, L.P.

Exhibit 27

[Greenberg Traurig, LLP letterhead]

March 17, 2010

VIA ELECTRONIC MAIL AND FEDERAL EXPRESS

Mr. Thomas E. Lynch

Mill Road Capital, L.P.

382 Greenwich Avenue, Suite One

Greenwich, CT 06830

Re:

Demand to Inspect Books and Records of Kona Grill, Inc. Pursuant to

Section 220 of the General Corporation Law of the State of Delaware

Dear Mr. Lynch:

As you know, Greenberg Traurig, LLP represents Kona Grill, Inc. (the “Company”) and, at the direction of the Company’s Board of Directors (“Board”), we have been directed to respond to your letter dated March 10, 2010 (a copy of which is attached hereto), which was addressed to the Company’s Secretary, was received by him on March 10, 2010, and was forwarded by him to the Board on such date. (In the future, we ask that you kindly address all correspondence directly to the Board, Attention: Mark Zesbaugh, with copies to me.)

As an initial matter, the Board would like to underscore that it encourages open and transparent communication with all of its stockholders and likewise recognizes and appreciates the statutory right of any stockholder to request a review of the Company’s books, records and stockholder lists to the extent that such request is made properly in accordance with Section 220 of the General Corporation Law of the State of Delaware (the “DGCL”) and with other applicable Delaware law. That stated, however, the Company is not required under Section 220 of the DGCL to, and will not, make available for inspection and copying any books and records that are available entirely from the public domain (i.e., contained in the Company’s various periodic reports and proxy statement filings with the SEC under the Securities Exchange Act of 1934, as amended, available via the SEC’s EDGAR website to which we respectfully hereby refer you).

After having reviewed your request, the Board intends to accommodate you to the extent legally required, and is undertaking a review at this time of those items enumerated in your letter that (a) can be made available to you in short order, and (b) may require a longer period of time to assemble internally and prepare for inspection and copying by you, your representative and/or your agent. We will notify you as soon as practicable when the foregoing review has been completed and materials have been assembled so that you may make arrangements to travel or to send one of your representatives or agents to the Company’s principal office in Scottsdale, Arizona. Please note that, as stated above, certain materials may be assembled more quickly than other materials, and that the Company will inform you as soon as any materials have been assembled and are ready for inspection and copying. It will be solely your decision whether you want to make one trip or multiple trips to Scottsdale, Arizona for inspection and copying. Prior to making available for inspection and copying certain books and records responsive to your requests, however, the Board will require that you execute an appropriate confidentiality agreement acceptable to the Board, which is necessary to protect any information that the Board determines requires protection.

Please feel free to call me (302-661-7389) or my partners, Clifford E. Neimeth (212-801-9383) and Scott K. Weiss (602-445-8618), if you have any questions or if you would like to discuss anything in connection with your client’s request. We look forward to hearing from you.

Very truly yours,

/s/ Michael J. Maimone

Michael J. Maimone


MJM/ds
cc:		Peter M. Rosenblum (Foley Hoag LLP)
		Paul Bork (Foley Hoag, LLP)
		Clifford E. Neimeth (Greenberg Traurig, LLP)
		Scott K. Weiss (Greenberg Traurig, LLP)
		Mark Zesbaugh (Chairman, Audit Committee and Special Committee)
		Kona Grill, Inc. Board of Directors

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