Contract
Exhibit 10.18
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE SOLD, OFFERED
FOR SALE, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF, UNLESS REGISTERED PURSUANT TO THE
PROVISIONS OF THE SECURITIES ACT OR AN OPINION OF COUNSEL IS OBTAINED STATING THAT SUCH DISPOSITION
IS IN COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
February 4, 2008
KONA GRILL, INC.
Warrant for the Purchase of Shares of Common Stock
For value received, Xxxxxxx X. Xxxxxx, his successors or assigns (“Holder”), is
entitled to purchase from Kona Grill, Inc., a Delaware corporation (the “Company”), up to 100,000
fully paid and nonassessable shares of the Company’s Common Stock, $.01 par value per share (the
“Common Stock”) at the price of $5.00 per share, subject to adjustments as noted below (the
“Exercise Price”). This Warrant was transferred from that certain Warrant issued to Kona MN, LLC
for the purchase of 200,000 shares of Common Stock, which amended and restated that certain Warrant
issued by the Company on July 23, 2004.
The Holder agrees with the Company that this Warrant is issued, and all the rights hereunder
shall be held, subject to all of the conditions, limitations and provisions set forth herein.
1. Exercise of Warrant. Subject to the terms and conditions set forth herein, this
Warrant may be exercised in whole or in part, pursuant to the procedures provided below, at any
time on or before 7:00 p.m., Eastern time, on July 30, 2009 (the “Expiration Date”) or, if
such day is a day on which banking institutions in New York are authorized by law to close, then on
the next succeeding day that shall not be such a day. To exercise this Warrant the Holder shall
present and surrender this Warrant to the Company at its principal office, with the Warrant
Exercise Form attached hereto duly executed by the Holder and accompanied by payment (either (a) in
cash or by check, payable to the order of the Company, (b) by cancellation by the Holder of
indebtedness or other obligations of the Company to the Holder, or (c) by a combination of (a) or
(b)), of the aggregate Exercise Price for the total aggregate number of shares for which this
Warrant is exercised. Upon receipt by the Company of this Warrant, together with the executed
Warrant Exercise Form and payment of the Exercise Price for the shares to be acquired, in proper
form for exercise, and subject to the Holder’s compliance with all requirements of this Warrant for
the exercise hereof, the Holder shall be deemed to be the holder of record of the shares of Common
Stock (or Other Securities) issuable upon such exercise, notwithstanding that the stock transfer
books of the Company shall then be closed or that certificates representing such shares of Common
Stock shall not then be actually delivered to the Holder.
2. Net Issue Exercise. Notwithstanding any provisions herein to the contrary, if the
fair market value of one share of Common Stock is greater than the Exercise Price (at the date of
calculation as set forth below), in lieu of exercising this Warrant for cash, the Holder may elect
to receive shares equal to the value (as determined below) of this Warrant (or the portion thereof
being canceled) by surrender of this Warrant at the principal office of the Company together with
the properly endorsed Notice of Exercise and notice of such election in which event the Company
shall issue to the Holder a number of shares of Common Stock computed using the following formula:
| X = | Y (A-B) A |
Where X = the number of shares of Common Stock to be issued to the Holder
Y = the number of shares of Common Stock purchasable under the Warrant or,
if only a portion of the Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such calculation)
A = the fair market value of one share of the Company’s Common Stock (at the
date of such calculation)
B = Exercise Price (as adjusted to the date of such calculation)
3. Reservation of Shares. The Company will at all times reserve for issuance and
delivery upon exercise of this Warrant all shares of Common Stock or other shares of capital stock
of the Company (and Other Securities) from time to time receivable upon exercise of this Warrant.
All such shares (and Other Securities) shall be duly authorized and, when issued upon such
exercise, shall be validly issued, fully paid, and non-assessable and free of all preemptive
rights.
4. Fractional Shares. No fractional shares or scrip representing fractional shares
shall be issued upon the exercise of this Warrant, but the Company shall pay the Holder an amount
equal to the Fair Market Value (as defined below) of such fractional share of Common Stock in lieu
of each fraction of a share otherwise called for upon any exercise of this Warrant.
5. Fair Market Value. For purposes of this Warrant, the Fair Market Value of one
share of Common Stock (or Other Security) shall be determined as of any date (the “Value
Date”) by the Company’s Board of Directors in good faith; provided, however,
that where there exists a public market for the Company’s Common Stock on the Value Date, the fair
market value per share shall be either:
(a) If the Common Stock is listed on a national securities exchange or admitted to unlisted
trading privileges on such exchange or listed for trading on the NASDAQ system, the Fair Market
Value shall be the last reported sale price of the security on such exchange or system on the last
business day prior to the Value Date or if no such sale is made on such day, the average of the
closing bid and asked prices for such day on such exchange or system; or
(b) If the Common Stock is not so listed or so admitted to unlisted trading privileges, the
Fair Market Value shall be the mean of the last reported bid and asked prices reported by the
National Quotation Bureau, Inc. on the last business day prior to the Value Date.
6. Assignment or Loss of Warrant. Subject to the transfer restrictions herein
(including Section 9), upon surrender of this Warrant to the Company or at the office of
its stock transfer agent, if any, with the Assignment Form annexed hereto duly executed and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant, and of reasonably satisfactory
indemnification by the Holder, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver a replacement Warrant of like tenor and date.
7. Rights of the Holder. The Holder shall not, by virtue hereof, be entitled to any
rights of a stockholder in the Company, either at law or in equity, and the rights of the Holder
are limited to those expressed in this Warrant.
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8. Adjustments.
8.1 Adjustment for Recapitalization. If the Company shall at any time after the date
of this Warrant subdivide its outstanding shares of Common Stock (or
Other Securities at the time
receivable upon the exercise of the Warrant) by recapitalization, reclassification or split-up
thereof, or if the Company shall declare a stock dividend or distribute shares of Common Stock to
its shareholders, the number of shares of Common Stock (or Other Securities) subject to this
Warrant immediately prior to such subdivision shall be proportionately increased, and if the
Company shall at any time after the date of this Warrant combine the outstanding shares of Common
Stock by recapitalization, reclassification or combination thereof, the number of shares of Common
Stock subject to this Warrant immediately prior to such combination shall be proportionately
decreased. Any such adjustment and adjustment to the Exercise Price pursuant to this Section
8.1 shall be effective at the close of business on the effective date of such subdivision or
combination or if any adjustment is the result of a stock dividend or distribution then the
effective date for such adjustment based thereon shall be the record date therefor.
8.2 [Intentionally Omitted]
8.3 Adjustment in number of shares of Common Stock. Upon each adjustment of the
Exercise Price pursuant to Section 8.1, the Holder shall thereafter be entitled to purchase, at the
Exercise Price resulting from such adjustment, the number of shares obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of shares purchasable
pursuant hereto immediately prior to such adjustment and dividing the product thereof by the
Exercise Price resulting from such adjustment.
8.4 Adjustment for Reorganization, Consolidation, Merger, Etc. In case of any
reorganization of the Company (or any other corporation, the securities of which are at the time
receivable on the exercise of this Warrant) after the date of this Warrant or in case after such
date the Company (or any such other corporation) shall consolidate with or merge into another
corporation or convey all or substantially all of its assets to another corporation, then, and in
each such case, the Holder of this Warrant upon the exercise thereof as provided in Section
1 at any time after the consummation of such reorganization, consolidation, merger or
conveyance, shall be entitled to receive, in lieu of the securities and property receivable upon
the exercise of this Warrant prior to such consummation, the securities or property to which such
Holder would have been entitled upon such consummation if such Holder had exercised this Warrant
immediately prior thereto; in each such case, the terms of this Warrant shall be applicable to the
securities or property receivable upon the exercise of this Warrant after such consummation.
8.5 Certificate as to Adjustments. The adjustments provided in this Section 8
shall be interpreted and applied by the Company in such a fashion so as to reasonably preserve the
applicability and benefits of this Warrant (but not to increase or diminish the benefits
hereunder). In each case of an adjustment in the number of shares of Common Stock receivable on
the exercise of the Warrant, the Company at its expense will promptly compute such adjustment in
accordance with the terms of the Warrant and prepare a certificate executed by two executive
officers of the Company setting forth such adjustment and showing in detail the facts upon which
such adjustment is based. The Company will forthwith mail a copy of each such certificate to each
Holder.
8.6 Notices of Record Date, Etc. In the event that:
(a) the Company shall declare any dividend or other distribution to the holders of Common
Stock, or authorizes the granting to Common Stock holders of any right to subscribe for, purchase
or otherwise acquire any shares of stock of any class or any other securities; or
(b) the Company authorizes any capital reorganization of the Company, any reclassification of
the capital stock of the Company, any consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all of the assets of the Company to another
corporation or entity; or
(c) the Company authorizes any voluntary or involuntary dissolution, liquidation or winding up
of the Company; or
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(d) the Company shall have filed, or shall have entered into an understanding with an
underwriter to prepare, a registration statement that would, once declared effective, cause
termination of this Warrant in accordance with clause (ii) of Section 1,
then, and in each such case, the Company shall mail or cause to be mailed to the holder of this
Warrant at the time outstanding a notice specifying, as the case may be, (i) the date on which a
record is to be taken for the purpose of such dividend, distribution or right, and stating the
amount and character of such dividend, distribution or right, or (ii) the date on which such
reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding up is to take place, and the time, if any is to be fixed, as to which the holders of record
of Common Stock (or such other securities at the time receivable upon the exercise of the Warrant)
shall be entitled to exchange their shares of Common Stock (or such Other Securities) for
securities or other property deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up. Such notice shall be mailed at least
20 days prior to the date therein specified.
8.7 No Impairment. The Company will not, by any voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or performed hereunder by
the Company, but will at all times in good faith assist in the carrying out of all the provisions
of this Section 8 and in the taking of all such action as may be necessary or appropriate
in order to protect the rights of the Holder of this Warrant against impairment.
9. Transfer to Comply with the Securities Act. This Warrant and any Common Stock
acquired upon exercise (the “Warrant Stock”) may not be sold, transferred, pledged, hypothecated,
or otherwise disposed of except as follows: (a) to a person who, in the opinion of counsel to the
Company, is a person to whom this Warrant or the Warrant Stock may legally be transferred without
registration and without the delivery of a current prospectus under the Securities Act of 1933, as
amended (the “Securities Act”) with respect thereto; or (b) to any person upon delivery of
a prospectus then meeting the requirements of the Securities Act relating to such securities and
the offering thereof for such sale or disposition, and thereafter to all successive assignees.
10. Legend. Unless the issuance of the shares of Warrant Stock has been registered
under the Securities Act, or, in the case of a cashless exercise in accordance with Section 2, two
years have elapsed since the purchase of this Warrant by the Holder, upon exercise of any of the
Warrants and the issuance of any of the shares of Warrant Stock, all certificates representing
shares shall bear on the face thereof substantially the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED, OR OTHERWISE
DISPOSED OF, UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THAT
ACT OR UNLESS AN OPINION OF COUNSEL TO THE CORPORATION IS OBTAINED
STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION.
11. Notices. All notices required hereunder shall be in writing and shall be deemed
given when telegraphed, delivered personally or within two days after mailing when mailed by
certified or registered mail, return receipt requested, to the Company or the Holder, as the case
may be, for whom such notice is intended, if to the Holder, at the address of such party shown on
the books of the Company, or if to the Company, to the president thereof, at the address set forth
on the signature page hereof, or at such other address of which the Company or the Holder has been
advised by notice hereunder.
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12. Applicable Law. The Warrant is issued under and shall for all purposes be
governed by and construed in accordance with the laws of the state of Arizona, without regard to
the conflict of laws provisions of such State.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed on its behalf, in its
corporate name, by its duly authorized officer, all as of the day and year first above written.
| KONA GRILL, INC. | ||||||
| By: | /s/ Xxxx Xxxxxxx | |||||
| Xxxx Xxxxxxx, Chief Financial Officer | ||||||
| Address: | Kona Grill, Inc. | |||||
| 0000 X. Xxxxxxxxx Xxxx, | ||||||
| Xxxxx 000 | ||||||
| Xxxxxxxxxx, Xxxxxxx 00000 | ||||||
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WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to (i) exercise the within Warrant to purchase
shares of the Common Stock of Kona Grill, Inc., Delaware corporation, pursuant to the
provisions of Section 1 of the attached Warrant, and hereby makes payment of $ in
payment therefor, or (ii) exercise this Warrant for the purchase of shares of
Stock, pursuant to the provisions of Section 2 of the attached Warrant. The undersigned’s
execution of this form constitutes the undersigned’s agreement to all the terms of the Warrant and
to comply therewith.
| Signature | ||||||
| Print Name: | ||||||
| Signature, if jointly held | ||||||
| Print Name: | ||||||
| Date | ||||||
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ASSIGNMENT FORM
FOR
VALUE
RECEIVED
(“Assignor”) hereby sells, assigns and
transfers unto
(“Assignee”) all of Assignor’s right, title
and interest in, to and under Warrant No. W-
_____
issued by
, dated
.
DATED:
| ASSIGNOR: | ||
| Signature | ||
| Print Name: | ||
| Signature, if jointly held | ||
| Print Name: | ||
| ASSIGNEE: |
The undersigned agrees to all of the terms of the Warrant and to comply therewith.
| Signature | ||
| Print Name: | ||
| Signature, if jointly held | ||
| Print Name: |
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