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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,
Arizo
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