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EXHIBIT 10.2
MUTUAL WAIVER AND RELEASE OF CLAIMS
THIS
MUTUAL WAIVER AND RELEASE OF CLAIMS AGREEMENT (hereinafter, the
"Agreement"), effective as of December 1,
2004, is entered into in the County of
Maricopa, State of Arizona, by and between
Kona Grill, Inc., a Delaware
corporation (the "Company") and Chandler
(the "Executive").
RECITALS
1.
Executive
has extensive experience in the restaurant business over
the last thirty years, has operated four
different concepts in nine states and
three countries, and was employed by
Company as an Officer and as a member of
the board of directors of the Company (a
"Director").
2.
Company
and Executive have entered into a Confidential Agreement
attached hereto at Exhibit A (the
"Confidential Agreement").
3.
Executive
has resigned as a Director as attached on Exhibit B.
3.
The
parties hereto have mutually agreed that it is in their
respective best interests to terminate any
and all employment and corporate
relationships between them and bring any
and all claims which may arise
therefrom to an amicable resolution.
WHEREFORE,
in consideration of the mutual covenants and conditions
contained herein and intending to be
legally bound hereby, the parties hereto
agree as follows:
COVENANTS
I.
By
execution of this Agreement, Executive hereby acknowledges that he
has
resigned from his positions as an employee
of Company and as a Director, subject
to the following terms and conditions
contained herein:
(a)
In consideration
for executing this Agreement, and being bound by
all of its covenants and obligations,
Executive shall receive the following
consideration and other good and valuable
consideration paid to it by the
Company, the receipt of which is hereby
acknowledged: (i) in exchange for
releasing the Company from any and all
claims arising out of the Executive's
service as a member of the board of
directors, the Company shall release
Executive from any and all claims arising
therefrom; and (ii) in exchange for
the non-competition sections of this
Agreement and for the other obligations and
releases arising from Executive's service
as an officer of the Company, the
Company shall grant Executive an option to
purchase 48,560 shares of Common
stock of the Company at $1.20 per share
(the "Option"), which Option shall vest
as of the date above, subject to the
provisions of this Agreement. Executive
hereby agrees to not to exercise or sell,
and the Company agrees to not process
the exercise of any Option or transfer any
shares obtained by or through the
Option to any third party for a period of 2
years following the date of this
Agreement;
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(b)
Executive shall
promptly return all corporate paper and property in
his possession.
(c)
Executive hereby
declares that all voting agreements relating to his
stock and/or position as a director or
officer of the Company are hereby
terminated. Executive hereby constitutes
and appoints the Company and its
successors and assigns as its true and
lawful attorneys in fact in connection
with the termination of any and all voting
agreements, with full power of
substitution, in the name and stead of the
Executive, to terminate and end any
and all voting agreements outstanding.
II.
Both
parties agree not to disparage or impugn the business reputation
of
the other.
III.
(a)
In consideration
of the mutual covenants contained herein,
Executive, for himself and, as applicable,
his respective agents, attorneys,
successors, and assigns, hereby fully,
forever, irrevocably, and unconditionally
releases the Company, including any parent,
subsidiary, related and affiliate
entities, any predecessors, successors, and
assigns and the current and past
officers, directors, shareholders, agents,
and employees of each and all of the
foregoing from any and all claims, charges,
complaints, liabilities, and
obligations of any nature whatsoever, which
he may have, whether now known or
unknown, and whether asserted or
unasserted, arising from any event or omission
occurring from the beginning of time to the
date of execution of this Agreement.
This release includes, without
limitations:
(i) all rights
or claims arising out of Executive's
employment
with Company and/or the termination of that employment,
including
any and all claims arising out of or which could arise out of
the
employment relationship between Executive and Company and the
termination of that employment, including but not limited to: (a)
any and
all claims
under Title VII of the Civil Rights Act of 1964, the Americans
with
Disabilities Act, the Age Discrimination in Employment Act,
Section
1981 of
the Civil Rights Act of 1866, the Employee Retirement Income
Security
Act (ERISA), the Equal Pay Act, applicable whistleblower laws,
the
Arizona Civil Rights Act, the Arizona Employment Protection Act,
and
any other
applicable state and local civil rights laws, Arizon
