EXHIBIT 4.4
AMENDMENT NO. 1 TO
SERIES A RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO SERIES A RIGHTS AGREEMENT ("Amendment") is dated
as of May 31, 2005 by and among KONA GRILL, INC., a Delaware corporation (the
"Company") and the investors listed on the signature pages hereto (each an
"Investor" and collectively the "Investors").
RECITALS
A. The Investors whose names are set forth on the signature pages of this
Amendment are parties to that certain Series A Investor Rights Agreement (the
"Rights Agreement") dated as of August 29, 2003, as amended from time to time,
by and among the Company and the Investors. The Rights Agreement sets forth
certain rights and obligations of the parties to that agreement with respect to
such parties' respective Preferred Shares and Conversion Shares. Capitalized
terms used herein that are not otherwise defined shall have the meanings
assigned to them in the Stockholders' Agreement.
B. Pursuant to Section 3.4 of the Rights Agreement, the Rights Agreement
may be amended by the written agreement signed by the Company and holders of at
least a majority of the Registrable Securities that are outstanding (including,
for these purposes, Conversion Shares) (the "Approving Parties").
C. The Approving Parties hold at least a majority of the Registrable
Securities that are outstanding as of the date hereof.
D. The Company has proposed a firmly underwritten initial public offering
of its common stock pursuant to a registration statement filed under the
Securities Act of 1933, as amended (the "Offering"), and the Approving Parties
believe that it is the best interests of the Company and its Stockholders to
amend the Rights Agreement to terminate certain rights contained therein prior
to the closing of the Offering (the "Closing").
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. TERMINATION OF CERTAIN RIGHTS; WAIVER OF PREEMPTIVE RIGHTS. Effective
upon (a) the execution and delivery of this Amendment by the Approving Parties;
and (b) the Closing, Sections 2.1 (Information Rights), 2.2 (Inspection Rights),
and 3.1 (Preemptive Rights) of the Rights Agreement shall be cancelled and
terminated in their entirety. The Approving Parties hereby waive the operation
of Section 3.1 of the Rights Agreement as it relates to the Offering.
2. BINDING NATURE OF AGREEMENT. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors, and assigns.
3. EXECUTION AND COUNTERPARTS. This Amendment may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears hereon, and all of which shall
together constitute one and the same instrument. This Amendment shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories. Any photographic or xerographic copy of this Amendment, with all
signatures reproduced on one or more sets of signature pages, shall be
considered for all purposes as if it were an executed counterpart of this
Amendment.
4. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with Arizona law, notwithstanding any Arizona or other
conflicts-of-law provisions to the contrary.
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IN WITNESS WHEREOF, the parties below have executed this Amendment as of
the date first written above.
THE COMPANY:
KONA GRILL, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Its: Chief Financial Officer
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THE INVESTORS:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
KONA KC INVESTMENT LLC
an Arizona limited liability company
By RJN II, LLC, an Arizona limited liability company,
Its Manager
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Manager
/s/ D. Xxxxx Xxxxxx
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D. Xxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxxxx
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Xxxxxxxx X. Xxxxxxxxxx
/s/ Xxxxx Xxxxxx Xxxxxxxx
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Xxxxx Xxxxxx Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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/s/ Xxx Xxxxxxxxxxxxx
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Xxx Xxxxxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
KONA MN LLC, a Delaware limited liability company
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Co-Manager
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Xxxx Xxxx Xxxxxx
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Xxxx Xxxx Xxxxxx
XXXX XXXXXXXX TRUST 2000, DATED 10/18/2000
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx TTEE
XXXX XXXXX XXXXX IRREVOCABLE TRUST
By: /s/ Xxxx Xxxxx Xxxxx
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Name: Xxxx Xxxxx Xxxxx
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Its: Trustee
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