AMENDED AND RESTATED

                          CERTIFICATE OF INCORPORATION

                                       OF

                                KONA GRILL, INC.

 

         Kona Grill, Inc., a corporation organized and existing under the laws

of the State of Delaware (the "CORPORATION"), hereby certifies as follows:

 

         1. The name of the corporation is Kona Grill, Inc. The original

Certificate of Incorporation of the Corporation was filed with the Secretary of

State of the State of Delaware on April 10, 2002.

 

         2. Pursuant to Sections 242 and 245 and in accordance with Sections

141(f) and 228(a) of the General Corporation Law of the State of Delaware, this

Amended and Restated Certificate of Incorporation restates and amends the

provisions of the Certificate of Incorporation of the Corporation.

 

         3. The Certificate of Incorporation is hereby restated and amended to

read in its entirety as follows:

 

                                   ARTICLE 1

 

         The name of the Corporation is Kona Grill, Inc.

 

                                   ARTICLE 2

 

         The address of the registered office of the Corporation in the State of

Delaware is 1209 Orange Street, Wilmington, Delaware 19801, located in New

Castle County. The registered agent of the Corporation at that address is The

Corporation Trust Company.

 

                                   ARTICLE 3

 

         The purpose of the Corporation is to engage in any lawful act or

activity for which corporations may be organized under the General Corporation

Law of the State of Delaware.

 

                                   ARTICLE 4

 

         The Corporation shall have the authority to issue an aggregate of

40,000,000 shares of Common Stock, each with a par value of $.01 per share (the

"COMMON STOCK"), and an aggregate of 20,000,000 shares of preferred stock, each

with a par value of $.01 per share, undesignated as to terms and preferences

(the "PREFERRED STOCK").

 

         The designations and the voting powers, preferences and relative,

participating, optional or other special rights, and the qualifications,

limitations or restrictions thereof, of the Common Stock that are fixed by this

Amended and Restated Certificate of Incorporation and the express grant of

authority to the Board of Directors to fix by resolution or resolutions the

designations and the voting powers, preferences and relative, participating,

optional or other special rights,

<PAGE>

and the qualifications, limitations or restrictions thereof, of the Preferred

Stock that are not fixed by this Amended and Restated Certificate of

Incorporation are as follows and as elsewhere set forth herein:

 

         1. ISSUANCE OF PREFERRED STOCK. The Preferred Stock may be issued at

any time or from time to time in any amount as Preferred Stock of one or more

series, as hereinafter provided. Each share of any one series of Preferred Stock

shall be identical in all respects except as to the date from which dividends

thereon may be cumulative, each series of Preferred Stock shall be distinctly

designated by letter or descriptive words, and all series of Preferred Stock

shall rank equally and be identical in all respects except as permitted by the

provisions of Section 2 of this Article 4. Shares of Preferred Stock shall be

issued only as fully paid and nonassessable shares.

 

         2. POWERS, PREFERENCES AND OTHER RIGHTS. Authority is hereby expressly

granted to and vested in the Board of Directors at any time or from time to

time, without action by or approval of the stockholders, to issue the Preferred

Stock as Preferred Stock of one or more series, to fix by resolution or

resolutions providing for the issuance of shares of any series the designations

and the voting powers, preferences and relative, participating, optional or

other special rights, and the qualifications, limitations or restrictions

thereof, of such series so far as not inconsistent with the provisions of this

Article 4 applicable to all series of Preferred Stock, and to the full extent

now or hereafter permitted by the laws of the State of Delaware, including the

following:

 

            (a) the distinctive designation of such series and the number of

         shares that shall constitute such series, which number may be increased

         (except where otherwise provided by the Board of Directors in creating

         such series) or decreased (but not below the number of shares thereof

         then outstanding) from time to time by action of the Board of

         Directors;

 

            (b) the rate or rates of dividends payable on shares of such series,

         whether dividends shall be cumulative and, if so, the date or dates

         from which dividends shall be cumulative on the shares of such series,

         the preferences, restrictions, limitations and conditions upon the

         payment of dividends, and the dates on which dividends, if declared,

         shall be payable;

 

            (c) whether shares of such series shall be redeemable and, if so,

         the terms and provisions of such redemption, including the date or

         dates upon or after which they shall be redeemable, the amount per

         share payable in case of redemption, which amount may vary under

         different conditions and at different redemption dates, and the manner

         of selecting shares for redemption;

 

            (d) the rights of the shares of such series in the event of

         voluntary or involuntary liquidation, dissolution or winding up of the

         affairs of the Corporation, and the relative rights of priority, if

         any, of payment of shares of such series;

 

 

                                       2

<PAGE>

            (e) whether shares of such series shall have a purchase, retirement

         or sinking fund for the purchase, retirement or redemption of shares of

         such series and, if so, the terms and provisions thereof;

 

            (f) whether shares of such series shall have conversion privileges

         and, if so, the terms and provisions thereof, including provisions for

         adjustment of the conversion rate in such events as the Board of

         Directors shall determine;

 

            (g) whether shares of such series shall have voting rights, in

         addition to voting rights provided by law, and, if so, the terms and

         provisions thereof; and

 

            (h) any other preferences and relative, participating, optional or

         other special rights, and the qualifications, limitations or

         restrictions thereof.

 

         3. DIVIDENDS. The holders of the Preferred Stock of each series shall

be entitled to receive such dividends, when and as declared by the Board of

Directors, out of funds legally available therefor, as they may be entitled to

in accordance with the resolution or resolutions adopted by the Board of

Directors providing for the issuance of such series, payable on such dates as

may be fixed in such resolution or resolutions. Subject to the foregoing and to

any further limitations prescribed in accordance with the provisions of Section

2 of this Article 4, the Board of Directors may declare, out of funds legally

available therefor, dividends upon the then-outstanding shares of Common Stock,

and shares of Preferred Stock of any series shall not be entitled to participate

therein.

 

         4. LIQUIDATING DISSOLUTION. In the event of any voluntary or

involuntary liquidation, dissolution or winding up of the Corporation, the

holders of the Preferred Stock of each series shall be entitled to receive, out

of the assets of the Corporation available for distribution to its stockholders,

before any distribution of assets shall be made to the holders of the Common

Stock, the amount per share provided by the Board of Directors pursuant to

Section 2 of this Article 4, which may include an amount equal to any cumulative

dividends thereon to the date of final distribution to the holders of the

Preferred Stock. If upon any liquidation, dissolution or winding up of the

Corporation the assets available for distribution shall be insufficient to pay

the holders of all outstanding shares of Preferred Stock the full amounts to

which they respectively shall be entitled, unless otherwise provided by the

Board of Directors pursuant to Section 2 of this Article 4, the holders of

shares of Preferred Stock of all series shall participate ratably in any

distribution of assets according to the respective amount that would be payable

in respect to the shares of Preferred Stock held by them upon such distribution

if all amounts payable in respect of the Preferred Stock of all series were paid

in full. Neither a statutory merger nor consolidation of the Corporation into or

with any other corporation into or with any other corporation, nor a statutory

merger or consolidation of any other corporation, into or with the Corporation,

nor a sale, transfer or exchange or lease of all or any part of the assets of

the Corporation, shall be deemed to be a liquidation, dissolution or winding up

of the Corporation within the meaning of this Section 4.

 

         5. REDEMPTION. The Corporation, at the option of the Board of

Directors, may redeem the whole or any part of the Preferred Stock of any series

at the price or prices and on the

 

 

                                       3

<PAGE>

terms and conditions provided in the resolution or resolutions of the Board of

Directors providing for the issuance of such series.

 

         6. GENERAL PROVISIONS.

 

            (a) Anything herein or in any resolution or resolutions of the Board

         of Directors providing for the issuance of any series of Preferred

         Stock to the contrary notwithstanding, the rights of holders of all

         classes and series of capital stock of the Corporation in respect of

         dividends and purchase, retirement or sinking funds, if any, shall at

         all times be subject to the power of the Board of Directors from time

         to time to set aside such reserves and to make such other provisions,

         if any, as the Board of Directors shall deem to be necessary or

         advisable for working capital, for expansion of the Corporation's

         business (including the acquisition of real and personal property for

         that purpose) and for any other purpose of the Corporation.

 

            (b) Except as otherwise provided by law or by this Certificate of

         Incorporation or by the resolution or resolutions of the Board of

         Directors providing for the issuance of any series of Preferred Stock,

         the vote of the holders of all or any portion of any class or series of

         capital stock, as a class or series, shall not be required for any

         action to be taken or authorized by the stockholders of the

         Corporation, including any amendment of this Certificate of

         Incorporation. Without limiting the foregoing, the number of authorized

         shares of Common Stock or any series thereof may be increased or

         decreased (but not below the number of shares thereof then outstanding)

         by the affirmative vote of the holders of a majority of the stock of

         the Corporation entitled to vote, without regard for the provisions of

         Section 242(b) of the General Corporation Law of the State of Delaware.

         Except as otherwise provided by law or by this Certificate of

         Incorporation, each holder of shares of Common Stock shall be entitled

         to one vote for each share of Common Stock held by such holder.

 

            (c) Except as otherwise provided by law or by this Certificate of

         Incorporation or by the resolution or resolutions of the Board of

         Directors providing for the issuance of any series of Preferred Stock

         or by the instrument governing the security, obligation, warrant,

         option or right, no holder of shares of any class or series of capital

         stock of the Corporation or of any security or obligation convertible

         into, or of any warrant, option or right to subscribe for, purchase or

         otherwise acquire, shares of any class or series of capital stock of

         the Corporation, whether now or hereafter authorized, shall, as such

         holder, have any preemptive right to subscribe for, purchase or

         otherwise acquire shares of any class or series of capital stock of the

         Corporation or any security or obligation convertible into, or any

         warrant, option or right to subscribe for, purchase or otherwise

         acquire, shares of any class or series of capital stock of the

         Corporation, whether now or hereafter authorized.

 

            (d) Authority is hereby expressly granted to and vested in the Board

         of Directors at any time and from time to time, without action by or

         approval of the stockholders, to declare, create and issue, with

         respect to shares of any class or series of capital stock of the

         Corporation, dividends or distributions in, or options or rights to

         acquire, shares of any class or series of capital stock of the

         Corporation, or other

 

 

                                       4

<PAGE>

         securities, and to fix by resolution or resolutions providing for the

         declaration, creation and issuance of any such dividend, distribution,

         option or right the terms, provisions, rights, qualifications,

         limitations or restrictions thereof so far as not inconsistent with the

         provisions of this Article 4, and to the full extent now or hereafter

         permitted by the laws of the State of Delaware, including (a)

         provisions for the adjustment thereof upon an acquisition of shares,

         reorganization, merger, consolidation, sale of assets, business

         combination or other event, and (b) provisions that prevent the holder

         of a specified percentage of outstanding shares of any class or series

         of capital stock of the Corporation, including transferees of such

         holder, from exercising rights thereunder.

 

                                   ARTICLE 5

 

         1. BOARD OF DIRECTORS. The business and affairs of the Corporation

shall be managed by or under the direction of a Board of Directors.

 

         2. CLASSIFICATION, TERM. The directors shall be divided into three

classes, as nearly equal in number as possible. The term of one class shall

expire at the first annual meeting of stockholders, the term of a second class

shall expire at the second annual meeting of stockholders, and the term of a

third class shall expire at the third annual meeting of stockholders. At each

succeeding annual meeting of stockholders beginning in 2003, successors to the

class of directors whose term expires at that annual meeting shall be elected

for a three-year term. If the number of directors is changed, any increase or

decrease shall be apportioned among the classes so as to maintain the number of

directors in each class as nearly equal as possible, and any additional director

of any class elected to fill a vacancy resulting from an increase in such class

shall hold office for a term that shall coincide with the remaining term of that

class. In no case will a decrease in the number of directors shorten the term of

any incumbent director. The number of directors in the class to be elected at an

annual meeting of stockholders shall be determined by the Board of Directors

prior to such meeting or, in the absence of such determination, by the

stockholders at such meeting. Notwithstanding the foregoing, whenever the

holders of any one or more classes of preferred or preference stock issued by

the corporation shall have the right, voting separately by class or series, to

elect directors at an annual or special meeting of stockholders, the election,

term of office, filling of vacancies and other features of such directorships

shall be governed by or pursuant to the applicable terms of this Certificate of

Incorporation or of the certificate of designation or other instrument creating

such class or series of preferred stock, and such directors so elected shall not

be divided into classes pursuant to this Section 2 unless expressly provided by

such terms.

 

         3. VACANCY. In the event of a vacancy occurring in any class, the Board

of Directors may reduce the number of directors in such class to eliminate the

vacancy, but in no case may the number of directors in such class be less than

one. In the event of a vacancy occurring in any class or a newly created

directorship resulting from an increase in the number of directors in any class,

the Board of Directors may fill such vacancy or newly created directorship for

the remainder of the unexpired term by vote of the majority of the remaining

directors, though less than a quorum. The directors of each class shall hold

office for the term for which elected and until the successors to such class are

elected, and nothing herein shall prevent any retiring director from being

eligible for re-election.

 

 

                                       5

<PAGE>

         4. REMOVAL. The stockholders shall have the right to remove any

directors upon the affirmative vote of at least 75% of the votes entitled to be

cast by the holders of all outstanding shares of capital stock entitled to vote

generally in the election of directors of the Corporation, voting together as a

single class.

 

         5. WRITTEN BALLOT. Elections of directors need not be by written ballot

unless the Bylaws of the Corporation so provide.

 

         6. LIABILITY. A director of the Corporation shall not be personally

liable to the Corporation or its stockholders for monetary damages for breach of

fiduciary duty by the director as a director; provided, however, that this

Section 6 shall not eliminate or limit the liability of a director to the extent

provided by applicable law (a) for any breach of the duty of loyalty of the

director to the Corporation or its stockholders, (b) for acts or omissions not

in good faith or which involve intentional misconduct or a knowing violation of

law, (c) for any unlawful action under Section 174 of the General Corporation

Law of the State of Delaware or (d) for any transaction from which the director

derived an improper personal benefit. No amendment to or repeal of this Section

6 shall apply to or have any effect on the liability or alleged liability of any

director of the Corporation for or with respect to any acts or omissions of the

director occurring prior to such amendment or repeal. If the laws of the State

of Delaware are hereafter changed to permit further elimination or limitation of

the liability of directors, then the liability of each director of the

Corporation shall thereupon be eliminated or limited to the fullest extent then

permitted by law.

 

         7. AMENDMENT OF THE BYLAWS. The Board of Directors shall have

concurrent power with the stockholders to adopt, alter, amend or repeal the

Bylaws of the Corporation. The Board of Directors may so adopt or change the

Bylaws upon the affirmative vote of the number of directors which shall

constitute, under the provisions of the Bylaws, the action of the Board of

Directors. The stockholders may not so adopt or change the Bylaws except upon

the affirmative vote of at least 75% of the votes entitled to be cast by the

holders of all outstanding shares of stock entitled to vote, voting together as

a single class.

 

         8. GENERAL PROVISIONS.

 

            (a) When considering a merger, consolidation, sale of assets,

         business combination or other transaction, the Board of Directors and

         any committee thereof, the directors and the officers of the

         Corporation may, in considering the best interests of the Corporation

         and its stockholders, consider the interests of and the effects of such

         transaction upon the employees, customers and suppliers of the

         Corporation and its subsidiaries and upon communities in which the

         Corporation and its subsidiaries are located or do business.

 

            (b) The Board of Directors may from time to time determine whether,

         to what extent, at what times and places and under what conditions and

         regulations the accounts, books and records of the Corporation, or any

         of them, shall be open to the inspection of the stockholders, and no

         stockholder shall have any right to inspect any account, book or

         document of the Corporation except as and to the extent expressly

         provided by law or expressly authorized by resolution of the Board of

         Directors.

 

 

                                       6

<PAGE>

            (c) In addition to the powers and authority herein or by law

         expressly conferred upon them, the directors are hereby empowered to

         exercise all such powers and do all such acts and things as may be

         exercised or done by the Corporation, subject, nevertheless, to the

         provisions of the laws of the State of Delaware, this Amended and

         Restated Certificate of Incorporation and any Bylaws adopted by the

         stockholders; provided, however, that no Bylaws hereafter adopted by

         the stockholders shall invalidate any prior act of the directors that

         would have been valid if such Bylaws had not been adopted.

 

            (d) No action shall be taken by the stockholders of the Corporation

         except at an annual or special meeting of the stockholders, and the

         right of stockholders to act by written consent in lieu of a meeting is

         specifically denied. Unless otherwise specifically provided by law or

         this Amended and Restated Certificate of Incorporation, a special

         meeting of shareholders, for any purpose or purposes, may be called

         only by the Chairman, the Chief Executive Officer, the President or the

         Secretary and shall be called by any such officer at the request in

         writing of a majority of the Board of Directors. Such request shall

         state the purpose or purposes of the meeting.

 

                                   ARTICLE 6

 

         Subject to the provisions of this Amended and Restated Certificate of

Incorporation, the Corporation reserves the right to alter, amend or repeal any

provision contained in this Amended and Restated Certificate of Incorporation,

in the manner now or hereafter prescribed by law, and all rights of stockholders

or others hereunder are subject to such reservation.

 

         IN WITNESS WHEREOF, Kona Grill, Inc. has caused this Amended and

Restated Certificate of Incorporation to be executed this 9th day of December,

2002.

 

                                        /s/ Michael J. McDermott

                                       -----------------------------------------

                                       Michael J. McDermott,

                                       Chief Executive Officer

 

[As Filed: 07-08-2005]