Amendment No. 15 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, VPYsVw8wjsBzl1cE+LovBOtQM0OYE4WpnlVCyXP+KC7aYwKYBNEvQiQ66Oc8MTdq EEwAU1AIUq765BhrE8JERQ== 0001193125-10-266406.txt : 20101122 0001193125-10-266406.hdr.sgml : 20101122 20101122162236 ACCESSION NUMBER: 0001193125-10-266406 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20101122 DATE AS OF CHANGE: 20101122 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: 101209000 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: 382 GREENWICH AVE STREET 2: SUITE ONE CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 203-987-3500 MAIL ADDRESS: STREET 1: 382 GREENWICH AVE STREET 2: SUITE ONE CITY: GREENWICH STATE: CT ZIP: 06830 SC 13D/A 1 dsc13da.htm AMENDMENT NO. 15 TO SCHEDULE 13D Amendment No. 15 to Schedule 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 15)*

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)

November 19, 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) HC; IN


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) HC; IN


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) HC; OO


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. 15 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, by Amendment No. 11 thereto filed on March 12, 2010, by Amendment No. 12 thereto filed on March 25, 2010, by Amendment No. 13 thereto filed on April 1, 2010, and by Amendment No. 14 thereto filed on April 16, 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 paragraph between the eighteenth and nineteenth paragraphs:

“On November 19, 2010, the Fund delivered to the Issuer a proposal pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended, for the 2011 annual meeting of stockholders of the Issuer. The proposal, a copy of which is attached hereto as Exhibit 29, requests that the Issuer’s board of directors take all necessary action in accordance with the Delaware corporate law to declassify the Issuer’s board of directors.”

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

“(a, b) The percentages of beneficial ownership reported in this Item 5, and on each Reporting Person’s cover page to this Schedule 13D, are based on a total of 9,171,871 shares of the Common Stock issued and outstanding as of October 29, 2010, as reported in the most recent quarterly report of the Issuer on Form 10-Q for the fiscal quarter ended September 30, 2010. All of the share numbers reported below are as of November 22, 2010, unless otherwise indicated. The cover page to this Schedule 13D for each Reporting Person is incorporated by reference in its entirety into this Item 5 (a, b).

The Fund directly holds, and thus has sole voting and dispositive power over, 899,330 shares of Common Stock. The GP, as sole general partner of the Fund, also has sole voting and dispositive power over these shares and each of Messrs. Lynch and Scharfman has the shared authority to vote and dispose of these shares on behalf of the Fund. Accordingly, each of the Reporting Persons beneficially owns 899,330 shares of Common Stock, or approximately 9.8% of the outstanding shares of Common Stock, and the Reporting Persons beneficially own, in the aggregate, 899,330 shares of Common Stock, or approximately 9.8% of the outstanding shares of Common Stock.”

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

“(c) No Reporting Person has effected any transaction in shares of the Common Stock from September 23, 2010 (the date 60 days prior to the filing of this Amendment No. 15 to the Schedule 13D) to November 22, 2010.”


CUSIP No. 50047H201		Page 7 of 8 Pages

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

“Exhibit 29 Proposal pursuant to Rule 14a-8 under Securities Exchange Act of 1934, as amended, for the 2011 Annual Meeting of Stockholders of Kona Grill, Inc.”

5.	Except as expressly modified hereby, all provisions of the Schedule 13D shall continue in full force and effect.

[signature page follows]


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: November 22, 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-99.29 2 dex9929.htm PROPOSAL PURSUANT TO RULE 14A-8 UNDER SECURITIES EXCHANGE ACT OF 1934 Proposal pursuant to Rule 14a-8 under Securities Exchange Act of 1934

Exhibit 29

Mill Road Capital, L.P.

382 Greenwich Avenue, Suite One

Greenwich, CT 06830

November 19, 2010

VIA FACSIMILE, ELECTRONIC MAIL PDF and FEDEX

Kona Grill, Inc.

7150 E. Camelback Road

Suite 220

Scottsdale, Arizona 85251

Attn: Mark S. Robinow, Executive Vice President and Secretary


Re:		Proposal pursuant to Rule 14a-8 under Securities Exchange Act of 1934, as amended for the 2011 Annual Meeting of Stockholders of Kona Grill, Inc.

Dear Mr. Robinow:

Pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and to the extent applicable under Section 1.12 of Article I of the Amended and Restated Bylaws (the “Bylaws”) of Kona Grill, Inc., a Delaware corporation (the “Company”), Mill Road Capital, L.P., a Delaware limited partnership (“Mill Road”) hereby notifies you that it intends to attend the Annual Meeting of Stockholders of the Company, or any special meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof (the “2011 Annual Meeting”) and make the Proposal set forth below for adoption by the stockholders of the Company. Mill Road hereby demands that the Proposal and the statement of Mill Road in support of the Proposal, also set forth below, be included in the Company’s proxy materials to be delivered to its stockholders in connection with the 2011 Annual Meeting.

PROPOSAL OF MILL ROAD


“RESOLVED:		That the stockholders of KONA GRILL, INC. (the “Company”) request that the Board of Directors take all necessary action in accordance with the Delaware General Corporation Law to approve an amendment to the Company’s amended and restated certificate of incorporation providing that the Directors of the Company shall be of a single class and to recommend to the stockholders that such amendment be adopted at a special meeting of stockholders to be held prior to the next annual meeting of stockholders.”

SUPPORTING STATEMENT OF MILL ROAD

“Mill Road believes that a classified board of directors is an impediment to annual accountability of directors to the stockholders. The directors of Kona Grill have on several occasions in the recent past appointed new directors to a class whose terms expire after the next meeting of stockholders thereby denying stockholders from determining whether the appointment was merited. Mill Road believes that Kona Grill’s performance would improve if all directors were required to stand for election each year.”

Pursuant to Rule 14a-8 and Section 1.12 of Article I of the Bylaws, the undersigned hereby provides the following information:

(a)

The stockholder giving this Notice and intending to make the proposal set forth above is Mill Road Capital, L.P. Mill Road Capital, L.P.’s address is 382 Greenwich Avenue, Suite One, Greenwich, Connecticut 06830.

(b)

The name and address of Mill Road Capital, L.P., as we believe they appear on the Company’s books, are:

MILL ROAD CAPITAL LP

A PARTNERSHIP

ATTN THOMAS E LYNCH

382 GREENWICH AVE-SUITE ONE

GREENWICH CT 06830

(c)

Mill Road Capital, L.P. is the beneficial owner of 899,330 shares of Common Stock, par value $0.01 per share, of the Company (the “Common Stock”), 1,000 shares of which are held of record. Mill Road has continuously held at least $2,000 or 1% of the Company’s Common Stock for at least one year prior to the date of this letter. Mill Road intends to continue to hold the Common Stock of the Company through the date of the 2011 Annual Meeting. A copy of the most recent amendment to our Schedule 13D is submitted herewith.

(d)

Mill Road Capital, L.P. hereby represents that it intends to appear in person or by proxy at the Annual Meeting to make the proposal.

Mill Road trusts that this Notice complies in all respects with Rule 14a-8, the Bylaws and applicable law. If the Company believes this Notice is incomplete or otherwise deficient in any respect, please notify us in writing immediately of such alleged deficiencies. Mill Road reserves the right, following receipt of any such notice, to either challenge, or attempt to cure, any alleged deficiencies.

Please be advised that, notwithstanding the compliance by Mill Road with the relevant provisions of the Bylaws, neither the delivery of this Notice in accordance with the terms of the Bylaws nor the delivery of additional information, if any, provided to the Company from and after the date hereof by or on behalf of Mill Road or any other person shall be deemed to constitute an admission that this Notice is in any way defective or as to the legality or enforceability of any particular provision of the Bylaws or any other matter, or a waiver by Mill Road or any other person of its right to contest or challenge the enforceability thereof or of any other matter.

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Please address any correspondence or questions to Mill Road Capital, L.P., Attention: Justin Jacobs, telephone (203) 987-3505, facsimile (203) 621-3280 (with a copy to our counsel, Foley Hoag LLP, Seaport West, 155 Seaport Blvd., Boston, MA 02210, Attention: Paul Bork, Esq., telephone (617) 832-1113, facsimile (617) 832-7000).


Very truly yours,

Mill Road Capital, L.P.

By:		Mill Road Capital GP LLC,
		its General Partner

By:		/s/ Thomas E. Lynch
		Thomas E. Lynch
		Management Committee Director and
		Chairman

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