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As filed with the Securities and Exchange Commission on December 7, 2004

Registration No. 333-118193



SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549


Amendment No. 5
to
FORM S-1
REGISTRATION STATEMENT
Under the Securities Act of 1933


COMSTOCK HOMEBUILDING COMPANIES, INC.
(Exact Name of Registrant as Specified in its Charter)

Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
  1531
(Primary Standard Industrial
Classification Code Number)
  20-1164345
(I.R.S. Employer
Identification Number)

11465 Sunset Hills Road, Suite 510
Reston, Virginia 20190
(703) 883-1700

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices)


Christopher Clemente
Chief Executive Officer
Comstock Homebuilding Companies, Inc.
11465 Sunset Hills Road, Suite 510
Reston, Virginia 20190
(703) 883-1700

(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)


Copies to:

Stephen A. Riddick, Esq.
Jason T. Simon, Esq.
Greenberg Traurig, LLP
800 Connecticut Avenue, N.W.
Suite 500
Washington, D.C. 20006
(202) 331-3100
  Randall S. Parks, Esq.
Gerald P. McCartin, Esq.
Hunton & Williams LLP
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
(804) 788-8200

        Approximate date of commencement of proposed sale to the public:     As soon as practicable after the effective date of this Registration Statement.

        If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.  o

        If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

        If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

        If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

        If delivery of the Prospectus is expected to be made pursuant to Rule 434, please check the following box.  o


Title of Each Class of Securities
to be Registered

  Amount to be
Registered(1)

  Proposed Maximum Offering Price Per Share(2)
  Proposed Maximum Aggregate
Offering Price

  Amount of Registration Fee(3)

Class A common stock, par value $.01 per share   4,140,000   $16   $66,240,000   $8,393

(1)
Includes 540,000 shares that the underwriters have the option to purchase from the registrant to cover over-allotments, if any.
(2)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(a) promulgated under the Securities Act of 1933.
(3)
The registrant has previously paid $9,502.50.



         The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to such Section 8(a), may determine.





PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 13. Other Expenses of Issuance and Distribution

        The expenses (other than underwriting discounts and commissions and the underwriters' non-accountable expense allowance) payable in connection with the sale of the Class A common stock offered in this registration statement are as follows:

Securities and Exchange Commission registration fee   $ 9,503

NASD filing fee

 

 

8,000

Nasdaq entry and application fee*

 

 

105,000

Printing and engraving expenses

 

 

310,000

Legal fees and expenses

 

 

1,120,000

Accounting fees and expenses

 

 

791,000

Blue sky fees and expenses (including legal fees)

 

 

5,000

Transfer agent and registrar fees and expenses

 

 

3,500

Miscellaneous

 

 

5,000
   
 
Total

 

$

2,357,003
   

*
To be filed by amendment

        All expenses are estimated except for the SEC registration fee and the NASD filing fee.

Item 14. Indemnification of Directors and Officers

        Section 145 of the Delaware General Corporation Law (the "DGCL") provides, in effect, that any person made a party to any action by reason of the fact that he is or was a director, officer, employee or agent of Comstock may and, in certain cases, must be indemnified by Comstock against, in the case of a non-derivative action, judgments, fines, amounts paid in settlement and reasonable expenses (including attorneys' fees) incurred by him as a result of such action, and in the case of a derivative action, against expenses (including attorneys' fees), if in either type of action he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of Comstock. This indemnification does not apply, (i) in a derivative action, to matters as to which it is adjudged that the director, officer, employee or agent is liable to Comstock, unless upon court order it is determined that, despite such adjudication of liability, but in view of all the circumstances of the case, he is fairly and reasonably entitled to indemnity for expenses, and, (ii) in a non-derivative action, to any criminal proceeding in which such person had no reasonable cause to believe his conduct was unlawful.

        Article VI of Comstock's certificate of incorporation provides that no director of Comstock shall be liable to Comstock or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL.

        Article VII of Comstock's certificate of incorporation also provides that Comstock shall indemnify to the fullest extent permitted by Delaware law any and all of its directors and officers, or former directors and officers, or any person who may have served at Comstock's request as a director or officer of another corporation, partnership, joint venture, trust or other enterprise.

II-1



        Reference is made to Section 8(b) of the underwriting agreement to be filed as Exhibit 1.1 hereto, pursuant to which the underwriters have agreed to indemnify officers and directors of Comstock against certain liabilities under the Securities Act.

        Comstock has entered into indemnification agreements with each director and certain officers of Comstock, a form of which is filed as Exhibit 10.10 to this registration statement. Pursuant to such agreements, Comstock will be obligated, to the extent permitted by applicable law, to indemnify such directors and officers against all expenses, judgments, fines and penalties incurred in connection with the defense or settlement of any actions brought against them by reason of the fact that they were directors or officers of Comstock or assumed certain responsibilities at the direction of Comstock. Comstock also intends to purchase directors and officers liability insurance in order to limit its exposure to liability for indemnification of directors and officers.

Item 15. Recent Sales of Unregistered Securities

    Certain Sales of Securities

        Except as set forth below, in the three years preceding the filing of this registration statement, the registrant has not issued any securities that were not registered under the Securities Act.

        In May 2004, upon the incorporation of the registrant, the registrant issued an aggregate of 10,000 shares of common stock to Christopher Clemente, Gregory Benson, James Keena and Lawrence Golub in exchange for an aggregate of $100.

        The foregoing sales of securities were made in reliance upon the exemption from the registration provisions of the Securities Act provided for by Section 4(2) thereof for transactions not involving a public offering. All of the foregoing securities are deemed restricted securities for the purposes of the Securities Act.

Item 16. Exhibits and Financial Statement Schedules

(a)   Exhibits.

1.1   Form of Underwriting Agreement.

3.1**

 

Certificate of Incorporation, as amended.

3.2

 

Form of Amended and Restated Certificate of Incorporation (to be filed with the Delaware Secretary of State immediately prior to the closing of the offering covered by this registration statement).

3.3**

 

Bylaws.

3.4

 

Form of Amended and Restated Bylaws (to be adopted immediately prior to the closing of the offering covered by this registration statement).

4.1*

 

Specimen Class A common stock certificate.

5.1

 

Opinion of Greenberg Traurig, LLP.

10.1**

 

Lease Agreement, dated as of April 30, 2002, with Comstock Partners, L.C.

10.2**

 

Lease Agreement, dated as of January 31, 2004, with Comstock Partners, L.C.

10.3

 

Lease Agreement, dated as of October 1, 2004, with Comstock Asset Management, L.C.

10.4**

 

Loan Agreement, dated December 17, 1997, as amended, with Bank of America, N.A.

10.5

 

Partial Assignment of Note, dated December 15, 2003, with Kasprowicz Family, LLC.
     

II-2



10.6

 

Promissory Note, dated April 30, 2004, with Kasprowicz Family, LLC.

10.7**

 

Disbursement and Construction Loan Agreement and Disbursement and Development Loan Agreement, each dated October 10, 2002 and as amended, with Branch Banking and Trust Company of Virginia.

10.8**

 

Disbursement and Construction Loan Agreement and Acquisition, Disbursement and Development Loan Agreement, each dated July 25, 2003, with Branch Banking and Trust Company of Virginia.

10.9**

 

Purchase Money Deed of Trust and Security Agreement, dated December 15, 2003, with Crescent Potomac Yard Development, LLC.

10.10

 

Form of Indemnification Agreement.

10.11

 

Form of Promissory Note to be issued to each of Christopher Clemente, Gregory Benson, James Keena and Lawrence Golub by each of Comstock Holding Company, Inc., Comstock Homes, Inc., Sunset Investment Corp., Inc. and Comstock Service Corp., Inc.

10.12

 

2004 Long-Term Incentive Compensation Plan.

10.13

 

Form of Stock Option Agreement under the 2004 Long-Term Incentive Compensation Plan.

10.14

 

Employee Stock Purchase Plan.

10.15**

 

Purchase and Sale Agreement, dated as of April 25, 2003, as amended, with Crescent Potomac Yard Development, LLC.

10.16

 

Form of Tax Indemnification Agreement to be entered into by each of Christopher Clemente, Gregory Benson, James Keena and Lawrence Golub with each of Comstock Holding Company, Inc., Comstock Homes, Inc., Sunset Investment Corp., Inc. and Comstock Service Corp., Inc.

10.17

 

Employment Agreement with Christopher Clemente, dated December     , 2004.

10.18

 

Employment Agreement with Gregory Benson, dated December     , 2004.

10.19

 

Employment Agreement with Bruce Labovitz, dated December     , 2004.

10.20

 

Confidentiality and Non-Competition Agreement with Christopher Clemente, dated December     , 2004.

10.21

 

Confidentiality and Non-Competition Agreement with Gregory Benson, dated December     , 2004.

10.22

 

Confidentiality and Non-Competition Agreement with Bruce Labovitz, dated December     , 2004.

10.23

 

Trademark License Agreement, dated December     , 2004.

21.1

 

List of subsidiaries.

23.1

 

Consent of PricewaterhouseCoopers LLP.

23.2

 

Consent of Greenberg Traurig, LLP (included in Exhibit 5.1).

24.1**

 

Power of Attorney (previously included in the signature page to this registration statement).

99.1**

 

Consent of A. Clayton Perfall.

99.2**

 

Consent of Norman D. Chirite.

99.3**

 

Consent of David M. Guernsey.
     

II-3



99.4**

 

Consent of James A. MacCutcheon.

99.5**

 

Consent of Gary Martin.

*
To be filed by amendment.

**
Previously filed.

(b)   Financial Statement Schedules

        All information for which provision is made in the applicable accounting regulations of the Securities and Exchange Commission is either included in the financial statements or is not required under the related instructions or are inapplicable, and therefore have been omitted.

Item 17. Undertakings.

        The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

        Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the registrant pursuant to provisions described in Item 14 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

        The undersigned registrant hereby undertakes that:

        (1)   For purposes of determining any liability under the Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this registration statement as of the time it was declared effective.

        (2)   For the purpose of determining any liability under the Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

II-4



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Amendment No. 5 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Reston, Virginia on December 7, 2004.

    COMSTOCK HOMEBUILDING COMPANIES, INC.

 

 

By:

/s/  
CHRISTOPHER CLEMENTE       
Christopher Clemente
Chief Executive Officer

        Know All Men By These Presents, that each person whose signature appears below constitutes and appoints Christopher Clemente and Bruce Labovitz and each of them acting alone, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to sign (i) any and all amendments (including post-effective amendments) to this registration statement and to file the same with all exhibits thereto, and other documents in connection therewith and (ii) any registration statement and any and all amendments thereto, relating to the offer covered hereby filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.

Signature
  Title
  Date
         
/s/   CHRISTOPHER CLEMENTE       
Christopher Clemente
  Chief Executive Officer and Director (Principal Executive Officer)   December 7, 2004

/s/  
BRUCE LABOVITZ       
Bruce Labovitz

 

Chief Financial Officer (Principal Financial Officer)

 

December 7, 2004

/s/  
JASON PARIKH       
Jason Parikh

 

Chief Accounting Officer (Principal Accounting Officer)

 

December 7, 2004

/s/  
GREGORY BENSON       
Gregory Benson

 

President and Chief Operating Officer, Director

 

December 7, 2004

II-5



EXHIBIT INDEX

1.1   Form of Underwriting Agreement.

3.1**

 

Certificate of Incorporation, as amended.

3.2

 

Form of Amended and Restated Certificate of Incorporation (to be filed with the Delaware Secretary of State immediately prior to the closing of the offering covered by this registration statement).

3.3**

 

Bylaws.

3.4

 

Form of Amended and Restated Bylaws (to be adopted immediately prior to the closing of the offering covered by this registration statement).

4.1*

 

Specimen Class A common stock certificate.

5.1

 

Opinion of Greenberg Traurig, LLP.

10.1**

 

Lease Agreement, dated as of April 30, 2002, with Comstock Partners, L.C.

10.2**

 

Lease Agreement, dated as of January 31, 2004, with Comstock Partners, L.C.

10.3

 

Lease Agreement, dated as of October 1, 2004, with Comstock Asset Management, L.C.

10.4**

 

Loan Agreement, dated December 17, 1997, as amended, with Bank of America, N.A.

10.5

 

Partial Assignment of Note, dated December 15, 2003, with Kasprowicz Family, LLC.

10.6

 

Promissory Note, dated April 30, 2004, with Kasprowicz Family, LLC.

10.7**

 

Disbursement and Construction Loan Agreement and Disbursement and Development Loan Agreement, each dated October 10, 2002 and as amended, with Branch Banking and Trust Company of Virginia.

10.8**

 

Disbursement and Construction Loan Agreement and Acquisition, Disbursement and Development Loan Agreement, each dated July 25, 2003, with Branch Banking and Trust Company of Virginia.

10.9**

 

Purchase Money Deed of Trust and Security Agreement, dated December 15, 2003, with Crescent Potomac Yard Development, LLC.

10.10

 

Form of Indemnification Agreement.

10.11

 

Form of Promissory Note to be issued to each of Christopher Clemente, Gregory Benson, James Keena and Lawrence Golub by each of Comstock Holding Company, Inc., Comstock Homes, Inc., Sunset Investment Corp., Inc. and Comstock Service Corp., Inc.

10.12

 

2004 Long-Term Incentive Compensation Plan.

10.13

 

Form of Stock Option Agreement under the 2004 Long-Term Incentive Compensation Plan.

10.14

 

Employee Stock Purchase Plan.

10.15**

 

Purchase and Sale Agreement, dated as of April 25, 2003, as amended, with Crescent Potomac Yard Development, LLC.

10.16

 

Form of Tax Indemnification Agreement to be entered into by each of Christopher Clemente, Gregory Benson, James Keena and Lawrence Golub with each of Comstock Holding Company, Inc., Comstock Homes, Inc., Sunset Investment Corp., Inc. and Comstock Service Corp., Inc.

10.17

 

Employment Agreement with Christopher Clemente, dated December     , 2004.

10.18

 

Employment Agreement with Gregory Benson, dated December     , 2004.
     


10.19

 

Employment Agreement with Bruce Labovitz, dated December     , 2004.

10.20

 

Confidentiality and Non-Competition Agreement with Christopher Clemente, dated December     , 2004.

10.21

 

Confidentiality and Non-Competition Agreement with Gregory Benson, dated December     , 2004.

10.22

 

Confidentiality and Non-Competition Agreement with Bruce Labovitz, dated December     , 2004.

10.23

 

Trademark License Agreement, dated December     , 2004.

21.1

 

List of subsidiaries.

23.1

 

Consent of PricewaterhouseCoopers LLP.

23.2

 

Consent of Greenberg Traurig, LLP (included in Exhibit 5.1).

24.1**

 

Power of Attorney (previously included in the signature page to this registration statement).

99.1**

 

Consent of A. Clayton Perfall.

99.2**

 

Consent of Norman D. Chirite.

99.3**

 

Consent of David M. Guernsey.

99.4**

 

Consent of James A. MacCutcheon.

99.5**

 

Consent of Gary Martin.

*
To be filed by amendment.

**
Previously filed.



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PART II INFORMATION NOT REQUIRED IN PROSPECTUS
SIGNATURES
EXHIBIT INDEX

Exhibit 1.1

COMSTOCK HOMEBUILDING COMPANIES, INC.

3,600,000 Shares of Class A Common Stock,
$0.01 par value per share


 

 


UNDERWRITING AGREEMENT

 

 

 

 

 

 

 

BB&T CAPITAL MARKETS, A Division of Scott & Stringfellow, Inc.
ROBERT W. BAIRD & CO., and
FERRIS, BAKER WATTS, INCORPORATED
        As Representatives of the Several Underwriters

c/o BB&T Capital Markets, a Division of Scott & Stringfellow, Inc.
900 East Main Street
Richmond, Virginia 23219

December    , 2004

Ladies and Gentlemen:

        Comstock Homebuilding Companies, Inc., a Delaware corporation (the "Company"), proposes, subject to the terms and conditions stated herein, to issue and sell to the underwriters, acting severally and not jointly, named in Schedule I hereto (the "Underwriters") an aggregate of 3,600,000 shares (the "Firm Shares") of Class A common stock, $0.01 par value per share ("Common Stock"), of the Company and, at the election of the Underwriters pursuant to Section 2 hereof and acting through the Representatives, up to 540,000 additional shares of Common Stock (the "Optional Shares"). The Firm Shares and the Optional Shares are herein collectively called the "Shares." BB&T Capital Markets, A Division of Scott & Stringfellow, Inc. ("BBTCM"), Robert W. Baird & Co. and Ferris, Baker Watts, Incorporated have agreed to act as representatives of the several Underwriters (in such capacity, the "Representatives") in connection with the offering and sale of the Shares.

        As part of the offering contemplated by this Agreement and at the request of the Company, the Underwriters have agreed to reserve out of the Firm Shares purchased by them under this Agreement, up to 400,000 shares of Common Stock, for sale to directors, officers, other employees, consultants, business associates and related persons (the "Participants") of the Company and its Subsidiaries (as defined herein) upon the terms and conditions set forth in the Prospectus and in accordance with all applicable laws, rules and regulations, including the rules, regulations and interpretations of the National Association of Securities Dealers, Inc. ("NASD") under a directed share program (the "Directed Share Program " ). BBTCM will administer the Directed Share Program. The Firm Shares to be sold pursuant to the Directed Share Program will be sold at the public offering price. Any Directed Shares not subscribed for (or orally confirmed at the discretion of the Representatives) by the end of the business day after the date of the Prospectus may be offered to the public by the Underwriters in the same manner as all other Firm Shares. Under no circumstances will the Representatives or any Underwriter be liable to the Company or to any Participant for any action taken or omitted to be taken in good faith in connection with the Directed Share Program.

1.     Representations and Warranties


2


3


4


5


6


7


8


9


10


11


        The Company acknowledges that the Underwriters and, for purposes of the opinions to be delivered by counsel to the Underwriters in connection herewith, counsel to the Underwriters will rely upon the accuracy and truthfulness of the foregoing representations and warranties and the Company hereby consents to such reliance.

2.     Purchase and Sale

        Subject to the terms and conditions herein set forth, (a) the Company agrees to sell to each of the Underwriters, and on the basis of the representations and warranties of the Company contained herein, each of the Underwriters agrees severally and not jointly, to purchase from the Company, at a purchase price per share of $            , the number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and (b) in the event and to the extent that the Underwriters shall exercise the election, acting through the Representatives, to purchase Optional Shares as provided below, the Company agrees to sell to each of the Underwriters, and on the basis of the representations and warranties of the Company contained herein, each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth in clause (a) of this Section 2, that portion of the number of Optional Shares as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional securities) determined by multiplying such number of Optional Shares by a fraction, the numerator of which is the maximum number of Optional Shares that such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto, and the denominator of which is the maximum number of the Optional Shares that all of the Underwriters are entitled to purchase hereunder.

        The Company hereby grants to the Underwriters the right to purchase, at their election, the Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering sales of Shares in excess of the number of Firm Shares. Any such election to purchase Optional Shares may be exercised, in whole or in part, only by written notice from you to the Company, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 4 hereof) or, unless you, otherwise agree in writing, earlier than two or later than 10 business days after the date of such notice.

3.     Offering by the Underwriters

        Upon the authorization by the Representatives of the release of the Firm Shares, the several Underwriters propose to offer the Firm Shares for sale upon the terms and conditions set forth in the Prospectus.

4.     Delivery and Payment

12


5.     Agreements of the Company

        The Company agrees with each of the Underwriters:

13


14


15


6.     Payment of Expenses

        The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (a) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Shares under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (b) the cost of printing or producing any Agreement Among Underwriters, this Agreement, the Blue Sky survey (if any) and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (c) the cost of copying or distributing the Blue Sky memorandum (if any), closing documents (including any compilations thereof) and any other documents (such as underwriters' questionnaires and powers of attorney) in connection with the offering, purchase, sale and delivery of the Shares; (d) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 5(b) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; (e) all fees and expenses in connection with listing the Shares on Nasdaq; (f) the filing fees incident to, and the fees and disbursements of counsel for the Underwriters in connection with, securing any required review by the NASD of the terms of the sale of the Shares; (g) the cost of preparing stock certificates; (h) the costs or expenses of any transfer agent or registrar; (i) the costs and expenses of the Company relating to investor presentations on any "road show" undertaken in connection with the marketing of the Shares, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show; (j) the costs and expenses of the Directed Share Program; and (k) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that except as provided in this Section, Section 8 and Section 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make.

7.     Conditions to Obligations of Underwriters

        The obligations of the Underwriters hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company herein are, at and as of such Time of Delivery, true and correct in all respects, and the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:

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        If any condition specified in this Section 7 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time prior to the First Time of Delivery or Second Time of Delivery as the case may be.

8.     Indemnification and Contribution

18


19


20


21


9.     Default of Underwriters

22


10.   Representations and Indemnities to Survive

        The respective indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Shares.

11.   Termination and Payment of Expenses

        If this Agreement shall be terminated pursuant to Section 9 hereof, the Company shall then be under no liability to any Underwriter except as provided in Section 6 and Section 8 hereof; but if for any other reason any Shares are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through the Representatives for all out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company shall then be under no further liability to any Underwriter except as provided in Section 6 and Section 8 hereof.

12.   Notices

        All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by reliable courier, first-class mail, telex or facsimile transmission to each Underwriter at the address set forth on Schedule I ; if to the Company shall be delivered or sent by reliable courier, first-class mail, telex, or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Jubal R. Thompson, General Counsel and Secretary. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.

13.   Successors

        This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters and the Company and, to the extent provided in Sections 8 and 10 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right

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under or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.

14.   Time of the Essence

        Time shall be of the essence of this Agreement.

15.   Business Day

        As used herein, the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business.

16.   Applicable Law and Waiver of Trial by Jury.

        This Agreement shall be governed by and construed in accordance with the laws of the State of New York. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OF THE OTHER UNDERWRITING DOCUMENTS OR TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.

17.   Captions

        The captions included in this Agreement are included solely for convenience of reference and shall not be deemed to be a part of this Agreement.

18.   Counterparts

        This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.

19.   Interpretation

        All pronouns used herein shall be deemed to refer to the masculine, feminine, or neuter gender as the text requires.

20.   Sophisticated Parties

        Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions herein, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the indemnification and contribution provisions herein fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Act and the Exchange Act.

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        If the foregoing is in accordance with your understanding, please sign and return to us four counterparts hereof, and upon the acceptance hereof by you this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters and the Company.

  Very truly yours,

 

COMSTOCK HOMEBUILDING COMPANIES, INC.

 

By:

  

  Name:  
  Title:  

        Accepted as of the date hereof
at Richmond, Virginia:


 

BB&T CAPITAL MARKETS, A Division of Scott & Stringfellow, Inc.,

By:

BB&T CAPITAL MARKETS,

  
a Division of Scott & Stringfellow, Inc.,
  on behalf of each of the Underwriters

 

 

 

By:

  


 

 
  Name:      
  Title:      

  


[Others]

 

 

 

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SCHEDULE I

Underwriter

  Firm Shares
to be Purchased

  Optional Shares
to be Purchased
if Maximum
Option Exercised

BB&T Capital Markets, a Division of Scott & Stringfellow, Inc.
900 East Main Street
Richmond, Virginia 23219
Facsimile: (804) 649-2615
       

  


 

 

 

 

  


 

 

 

 
   
 
Total        
   
 

SCHEDULE II
Subsidiaries of Comstock Homebuilding Companies, Inc.

Name of Subsidiary

  State or Country
of Incorporation or
Organization


  

 

 

  

 

 

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SCHEDULE III

Lock-up Agreements

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EXHIBIT A

Form of Opinion of Counsel for the Company

            (i)    The Company and each of the Subsidiaries have been duly incorporated, in the case of a corporation, and duly organized, in the case of a limited liability company, and are validly existing as corporations and limited liability companies, as the case may be, in good standing under the laws of their respective jurisdictions of incorporation or organization, with corporate or limited liability company power and authority to own or lease their respective properties and conduct their respective businesses as described in the Prospectus;

            (ii)   The Company and each of the Subsidiaries have been duly qualified as foreign corporations or limited liability companies for the transaction of business and are in good standing under the laws of each other jurisdiction in which they own or lease properties, or conduct any business, so as to require such qualification, except where the failure to so qualify will not result in a Material Adverse Effect (such opinion may be based solely upon certificates of authority or qualification issued in such jurisdictions to such effect);

            (iii)  The Company has an authorized capitalization as set forth in the Prospectus, including as set forth under the caption "Capitalization"; and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and nonassessable and conform to the description of the capital stock of the Company contained in the Prospectus, including as set forth under the caption "Capitalization"; there are no preemptive or other similar rights to subscribe for or to purchase any securities of the Company or any securities convertible or exchangeable into securities of the Company; except as described in the Prospectus, to such counsel's knowledge there are no warrants or options or similar rights to purchase any securities of the Company or any securities convertible or exchangeable into securities of the Company; neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by the Underwriting Agreement gives rise to any rights for or relating to the registration of any securities of the Company or any securities convertible or exchangeable into securities of the Company; with respect to such filing, offering or sale; and the form of the certificates evidencing the Shares complies with all formal requirements of Delaware law; all issued and outstanding shares of capital stock and other securities of the Company were issued in compliance with all federal and state securities laws.

            (iv)  All of the issued and outstanding shares of capital stock or membership interests of each of the Subsidiaries have been duly and validly authorized and issued and are fully paid and nonassessable; and all outstanding shares of capital stock or membership interests of each of the Subsidiaries are directly (or indirectly through other wholly owned Subsidiaries) owned by the Company, free and clear of all security interests, claims, equities, liens or encumbrances; all issued and outstanding shares of capital stock or membership interests of each of the Subsidiaries were issued in compliance will all federal and state securities laws.

            (v)   The Shares have been duly and validly authorized and, when issued and delivered against payment therefor as provided in the Underwriting Agreement, the Shares being issued as of such Time of Delivery will be duly and validly issued and fully paid and nonassessable and will conform to the description of the Shares contained in the Prospectus as amended or supplemented;

            (vi)  To such counsel's knowledge after due inquiry, there are no legal or governmental proceedings pending to which the Company or any of the Subsidiaries is a party or of which any property of the Company or any of the Subsidiaries is the subject, which, if determined adversely to the Company or any of the Subsidiaries, would individually or in the aggregate to have a Material Adverse Effect and to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or by others; further to such counsel's knowledge after due inquiry, (a) each of the Company and the Subsidiaries has all material licenses, authorizations,

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    consents and approvals and has made all material filings required under any federal, state or local law, regulation or rule, required to conduct their respective businesses, and (b) is not in violation of, in default under, and has not received any written notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval, except as described in the Prospectus or except where the failure to acquire the same or the violation or default thereunder would not reasonably likely result in a Material Adverse Effect;

            (vii) The issue and sale of the Shares by the Company and the performance of the Underwriting Agreement and the Merger Agreements and the consummation by the Company of the other transactions therein contemplated will not conflict with or result in a breach or violation of any terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound or to which any of the property or assets of the Company or any of the Subsidiaries is subject that is filed as an exhibit to the Registration Statement, that is identified or referenced in the Registration Statement or that is otherwise known to us after due inquiry, nor will such action result in any violation of the provisions of the Charter or By-laws of the Company or the Articles of Incorporation, Articles of Organization, bylaws or operating agreements of any of the Subsidiaries, as the case may be, or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries or any of their properties; except as disclosed in the Prospectus, nor will such action result in the creation or imposition of any material lien, charge, claim or encumbrance upon any material property or assets of the Company or its Subsidiaries; no Subsidiary is prohibited or restricted by its charter, bylaws, articles of organization or operating agreement, as the case may be, or agreements or instruments to which it is a party, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary's capital stock or interests or from paying the Company or any other Subsidiary, any amounts due under loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary's property or assets to the Company or to any other Subsidiary;

            (viii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Company of the transactions contemplated by the Underwriting Agreement or the Merger Agreements, except the registration under the Act of the Shares, inclusion of the Shares in the Nasdaq National Market, approval of the NASD, filing of certificates of merger with the State Corporation Commission of the Commonwealth of Virginia in connection with the First Second Merger Agreements, filing of a certificate of merger with the Delaware Secretary of State in connection with the Second Merger Agreement, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters;

            (ix)  The Registration Statement has become effective under the Act and, to our knowledge after making telephone inquiries to staff members of the Commission, no stop order proceedings with respect thereto are pending or threatened under the Act, and any required filing of the Prospectus and any supplement thereto pursuant to Rule 424 under the Act has been made in the manner and within the time period required by such Rule 424 and in the manner and within the time period required by Rule 430A under the Act;

            (ix)  The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to such Time of Delivery (other than the financial statements and related schedules and data, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act, and the rules and regulations thereunder; such counsel has no reason to believe that, as of the effective date of

B-2



    the Registration Statement and as of such Time of Delivery, either the Registration Statement or the Prospectus (other than the financial statements and related schedules and data) (or, as of its date, any further amendment or supplement thereto made by the Company prior to such Time of Delivery) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or, with respect to the Prospectus, necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required;

            (x)   The descriptions in the Registration Statement and Prospectus and any further amendments or supplements thereto of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present in all material respects the information required to be described;

            (xi)  The Underwriting Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 8 thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;

            (xii) The Company is not and, after giving effect to the offering and sale of the Shares, will not be an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act;

            (xiii) Each of the mergers contemplated by the First Merger Agreements have been effectuated in accordance with the laws of the Commonwealth of Virginia;

            [(xiv) Upon the filing of the certificate of merger with the Delaware Secretary of State with respect to the Second Merger Agreement in accordance with the terms thereof, the merger contemplated thereby shall be effective and (a) the separate corporate existence of Comstock Holding shall cease,(b) the Company shall continue to be governed by the laws of the State of Delaware and (c) the separate corporate existence of the Company with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the merger contemplated by the Second Merger Agreement; and

            (xv) The merger of Comstock Service, Sunset, and Comstock Homes with and into Comstock Holding will be a reorganization within the meaning of Section 368(a) of the Code, and each of Comstock Service, Sunset, Comstock Homes, and Comstock Holding will be a "party to a reorganization" within the meaning of Section 368(b) of the Code;

            (xvi) Comstock Holding will not recognize gain or loss on the acquisition of the assets of Comstock Service, Sunset, and Comstock Homes in exchange for Comstock Holding stock and the assumption of the liabilities of Comstock Service, Sunset, and Comstock Homes;

            (xvii) Each of Comstock Service, Sunset, and Comstock Homes will not recognize gain or loss (a) on the transfer of its assets to Comstock Holding in exchange for Comstock Holding stock and the assumption of the liabilities of Comstock Service, Sunset and Comstock Homes or (b) on the constructive distribution of Comstock Holding stock to the shareholders of Comstock Service, Sunset, and Comstock Homes;

B-3



            (xviii) The merger of Comstock Holding with and into the Company will be a reorganization within the meaning of Section 368(a) of the Code, and each of Comstock Holding and the Company will be a "party to a reorganization" within the meaning of Section 368(b) of the Code;

            (xix) The Company will not recognize gain or loss on the acquisition of the assets of Comstock Holding in exchange for the Company stock and the assumption of the liabilities of Comstock Holding; and

            (xx) Comstock Holding will not recognize gain or loss (a) on the transfer of its assets to the Company in exchange for the Company stock and the assumption of Comstock Holdings' liabilities or (b) on the constructive distribution of the Company stock to the shareholders of Comstock Holding.]

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Exhibit 3.2

AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
COMSTOCK HOMEBUILDING COMPANIES, INC.

        Comstock Homebuilding Companies, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware, hereby certifies as follows:

        1.     The corporation was incorporated on May 24, 2004, under the name Comstock Companies, Inc., pursuant to the General Corporation Law of the State of Delaware. The Certificate of Incorporation was amended on June 30, 2004.

        2.     Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware, this Amended and Restated Certificate of Incorporation restates and integrates and further amends the provisions of the Certificate of Incorporation of the corporation.

        3.     The text of the Certificate of Incorporation is hereby amended and restated in its entirety as follows:


"ARTICLE I
NAME

        The name of the Corporation is Comstock Homebuilding Companies, Inc. (the "Corporation").


ARTICLE II
REGISTERED OFFICE AND AGENT

        The address of the Corporation's registered office in the State of Delaware is 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle. The name of its registered agent at such address is Corporation Service Company.


ARTICLE III
PURPOSE

        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 (the "DGCL").


ARTICLE IV
CAPITAL STOCK

        The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is One Hundred Million (100,000,000) shares, of which:

        Seventy Seven Million Two Hundred Sixty Six Thousand and Five Hundred (77,266,500) shares, par value $0.01 per share, shall be shares of Class A common stock (the "Class A Common Stock");

        Two Million Seven Hundred Thirty Three and Five Hundred (2,733,500) shares, par value $0.01 per share, shall be shares of Class B common stock (the "Class B Common Stock" and, together with the Class A Common Stock, the "Common Stock"); and

        Twenty Million (20,000,000) shares, par value $0.01 per share, shall be shares of preferred stock (the "Preferred Stock").

        (A)     Common Stock.     Except as (i) otherwise required by law or (ii) expressly provided in this Amended and Restated Certificate of Incorporation (as amended from time to time), each share of Common Stock shall have the same powers, rights and privileges and shall rank equally, share ratably and be identical in all respects as to all matters.


2


3


4


5


6


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        (B)     Preferred Stock.     The Board of Directors is authorized, subject to limitations prescribed by law, to provide by resolution or resolutions for the issuance of shares of Preferred Stock in one or more series, to establish the number of shares to be included in each such series, and to fix the voting powers (if any), designations, powers, preferences, and relative, participating, optional or other rights, if any, of the shares of each such series, and any qualifications, limitations or restrictions thereof. Irrespective of the provisions of Section 242(b)(2) of the DGCL, the number of authorized shares of Preferred Stock 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 in voting power of the stock of the Corporation entitled to vote, without the separate vote of the holders of the Preferred Stock as a class.


ARTICLE V
BOARD OF DIRECTORS

        (A)     Management.     The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors may exercise all such authority and powers

8


of the Corporation and do all such lawful acts and things as are not by statute or this Amended and Restated Certificate of Incorporation directed or required to be exercised or done by the stockholders.

        (B)     Number of Directors.     The number of directors of the Corporation shall be fixed from time to time in the manner provided in the Amended and Restated Bylaws.

        (C)     Newly-Created Directorships and Vacancies.     Subject to the rights of the holders of any series of Preferred Stock then outstanding, newly created directorships resulting from any increase in the number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office or any other cause may be filled by the Board of Directors, provided that a quorum is then in office and present, or by a majority of the directors then in office, if less than a quorum is then in office, or by the sole remaining director. Directors elected to fill a newly created directorship or other vacancies shall hold office until such director's successor has been duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

        (D)     Removal of Directors.     Subject to the rights of the holders of any series of Preferred Stock then outstanding, any director may be removed from office at any time for cause, at a meeting called for that purpose, and only by the affirmative vote of the holders of at least 66 2 / 3 % of the voting power of all shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class.

        (E)     Rights of Holders of Preferred Stock.     Notwithstanding the foregoing provisions of this Article V, whenever the holders of one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately or together by 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 directorship shall be governed by the rights of such Preferred Stock as set forth in the certificate of designations governing such series.

        (F)     Written Ballot Not Required.     Elections of directors need not be by written ballot unless the Amended and Restated Bylaws of the Corporation shall otherwise provide.

        (G)     Bylaws.     The Board of Directors is expressly authorized to adopt, amend or repeal the bylaws of the Corporation. Any bylaws made by the directors under the powers conferred hereby may be amended or repealed by the directors or by the stockholders. Notwithstanding the foregoing and anything contained in this Amended and Restated Certificate of Incorporation to the contrary, the bylaws of the Corporation shall not be amended or repealed by the stockholders, and no provision inconsistent therewith shall be adopted by the stockholders, without the affirmative vote of the holders of 66 2 / 3 % of the voting power of all shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class.

        (H)     Classification of Directors.     At each annual meeting of stockholders, directors of the Corporation shall be elected to hold office until the expiration of the term for which they are elected, and until their successors have been duly elected and qualified; except that if any such election shall be not so held, such election shall take place at a stockholders' meeting called and held in accordance with the DGCL. The directors of the Corporation shall be divided into three classes as nearly equal in size as is practicable, hereby designated Class I, Class II and Class III. The term of office of the initial Class I directors shall expire at the next succeeding annual meeting of stockholders, the term of office of the initial Class II directors shall expire at the second succeeding annual meeting of stockholders and the term of office of the initial Class III directors shall expire at the third succeeding annual meeting of the stockholders. For the purposes hereof, the initial Class I, Class II and Class III directors shall be those directors elected by the stockholders of the Corporation in connection with the adoption of this Amended and Restated Certificate of Incorporation. At each annual meeting after the first annual meeting of stockholders, directors to replace those of a Class whose terms expire at such annual

9



meeting shall be elected to hold office until the third succeeding annual meeting and until their respective successors shall have been duly elected and qualified. If the number of directors is hereafter changed, any newly created directorships or decrease in directorships shall be so apportioned among the classes as to make all classes as nearly equal in number as practicable.


ARTICLE VI
LIMITATION OF 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 as a director; provided, however , that the foregoing shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. If the DGCL is hereafter amended to permit further elimination or limitation of the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL as so amended. Any repeal or modification of this Article VI by the stockholders of the Corporation or otherwise shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.


ARTICLE VII
INDEMNIFICATION

        Each person who was or is made a party or is threatened to be made a party to or is involved (including, without limitation, as a witness) in any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation or of a partnership, limited liability company, joint venture, trust or other entity, including service with respect to an employee benefit plan (hereinafter an "Indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while so serving, shall be indemnified and held harmless by the Corporation to the full extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), or by other applicable law as then in effect, against all costs, expenses, liabilities and losses (including attorneys' fees and related costs, judgments, fines, excise taxes or penalties under the Employee Retirement Income Security Act of 1974, as amended from time to time ("ERISA"), penalties and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by such Indemnitee in connection therewith, and such indemnification shall continue as to a person who has ceased to be a director, officer, partner, member or trustee and shall inure to the benefit of his or her heirs, executors and administrators. Each person who is or was serving as a director or officer of a subsidiary of the Corporation shall be deemed to be serving, or have served, at the request of the Corporation.

        (A)     Procedure.     Any indemnification (but not advancement of expenses) under this Article VII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he has met the applicable standard of conduct set forth in the DGCL, as the same exists or hereafter may be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment). Such determination shall be made with respect to a person who is a director or officer at the time of such determination (a) by a majority vote of the

10



directors who were not parties to such proceeding (the "Disinterested Directors"), even though less than a quorum, (b) by a committee of Disinterested Directors designated by a majority vote of Disinterested Directors, even though less than a quorum, (c) if there are no such Disinterested Directors, or if such Disinterested Directors so direct, by independent legal counsel in a written opinion, or (d) by the stockholders.

        (B)     Advances for Expenses.     Expenses (including attorneys' fees, costs and charges) incurred by a director or officer of the Corporation in defending a proceeding shall be paid by the Corporation in advance of the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay all amounts so advanced in the event that it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Corporation as authorized in this Article VII. The majority of the Disinterested Directors may, in the manner set forth above, and upon approval of such director or officer of the Corporation, authorize the Corporation's counsel to represent such person, in any proceeding, whether or not the Corporation is a party to such proceeding.

        (C)     Procedure for Indemnification.     Any indemnification or advance of expenses (including attorney's fees, costs and charges) under this Article VII shall be made promptly, and in any event within 60 days upon the written request of the director or officer (and, in the case of advance of expenses, receipt of a written undertaking by or on behalf of Indemnitee to repay such amount if it shall ultimately be determined that Indemnitee is not entitled to be indemnified therefor pursuant to the terms of this Article VII). The right to indemnification or advances as granted by this Article VII shall be enforceable by the director or officer in any court of competent jurisdiction, if the Corporation denies such request, in whole or in part, or if no disposition thereof is made within 60 days. Such person's costs and expenses incurred in connection with successfully establishing his/her right to indemnification, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of expenses (including attorney's fees, costs and charges) under this Article VII where the required undertaking, if any, has been received by the Corporation) that the claimant has not met the standard of conduct set forth in the DGCL, as the same exists or hereafter may be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, its independent legal counsel and its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he/she has met the applicable standard of conduct set forth in the DGCL, as the same exists or hereafter may be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), nor the fact that there has been an actual determination by the Corporation (including its Board of Directors, its independent legal counsel and its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

        (D)     Other Rights; Continuation of Right to Indemnification.     The indemnification and advancement of expenses provided by this Article VII shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any law (common or statutory), bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding office or while employed by or acting as agent for the Corporation, and shall continue as to a person who has ceased to be a director or officer, and shall inure to the benefit of the estate, heirs, executors and administers of such person. All rights to indemnification under this Article VII shall be deemed to be a

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contract between the Corporation and each director or officer of the Corporation who serves or served in such capacity at any time while this Article VII is in effect. Any repeal or modification of this Article VII or any repeal or modification of relevant provisions of the DGCL or any other applicable laws shall not in any way diminish any rights to indemnification of such director or officer or the obligations of the Corporation arising hereunder with respect to any proceeding arising out of, or relating to, any actions, transactions or facts occurring prior to the final adoption of such modification or repeal. For the purposes of this Article VII, references to "the Corporation" include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation, so that any person who, following such consolidation or merger, is a director or officer of such a constituent corporation or is serving at the request of such constituent corporation as a director or officer of another corporation, partnership, joint venture, trust or other entity shall stand in the same position under the provisions of this Article VII, with respect to the resulting or surviving corporation during the period following such consolidation or merger, as he would if he/she had served the resulting or surviving corporation in the same capacity.

        (E)     Insurance.     The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other entity, against any liability asserted against him and incurred by him or on his behalf in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article VII; provided, however , that such insurance is available on acceptable terms, which determination shall be made by a vote of a majority of the Board of Directors.

        (F)     Savings Clause.     If this Article VII or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each person entitled to indemnification under the first paragraph of this Article VII as to all costs, expenses, liabilities and losses (including attorneys' fees and related costs, judgments, fines, ERISA excise taxes and penalties, penalties and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by such person and for which indemnification is available to such person pursuant to this Article VII to the full extent permitted by any applicable portion of this Article VII that shall not have been invalidated and to the full extent permitted by applicable law.


ARTICLE VIII
ACTION BY WRITTEN CONSENT/SPECIAL MEETINGS OF STOCKHOLDERS

        For so long as either any class of the Corporation's Common Stock is registered under Section 12 of the Exchange Act, or the Corporation is required to file periodic reports with the Securities and Exchange Commission pursuant to Section 15(d) of the Exchange Act with respect to any class of the Corporation's Common Stock: (i) the stockholders of the Corporation may not take any action by written consent in lieu of a meeting, and must take any actions at a duly called annual or special meeting of stockholders and the power of stockholders to consent in writing without a meeting is specifically denied and (ii) special meetings of stockholders of the Corporation may be called only by either the Board of Directors pursuant to a resolution adopted by the affirmative vote of the majority of the total number of directors then in office or by the chief executive officer of the Corporation.


ARTICLE IX
AMENDMENT

        The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. Notwithstanding any other provision of this Amended and Restated Certificate of Incorporation or the

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Amended and Restated Bylaws of the Corporation, and notwithstanding the fact that a lesser percentage or separate class vote may be specified by law, this Amended and Restated Certificate of Incorporation, the Amended and Restated Bylaws of the Corporation or otherwise, but in addition to any affirmative vote of the holders of any particular class or series of the capital stock required by law, this Amended and Restated Certificate of Incorporation, the Amended and Restated Bylaws of the Corporation or otherwise, (i) the affirmative vote of the holders of at least 66 2 / 3 % of the voting power of all shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to adopt any provision inconsistent with, to amend or repeal any provision of, or to adopt a bylaw inconsistent with, Articles V, VI, VII, VIII or IX of this Amended and Restated Certificate of Incorporation, and (ii) the rights of the Class B Common Stock may not be amended, altered, changed or repealed without the approval of the holders of a majority of the outstanding shares of Class B Common Stock, voting as a separate class."

*    *    *

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        4.     The foregoing amendment and restatement of the Certificate of Incorporation has been duly approved by the Board of Directors of the corporation in accordance with the provisions of Sections 144, 242 and 245 of the General Corporation Law of the State of Delaware.

        5.     The foregoing amendment and restatement of the Certificate of Incorporation has been duly approved by the written consent of the stockholders in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware.

        IN WITNESS WHEREOF, the corporation has causes this Amended and Restated Certificate of Incorporation to be signed by its President on this    day of                        , 2004.

  COMSTOCK HOMEBUILDING COMPANIES, INC.

 

By

  

  Name: Gregory Benson
  Title: President

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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF COMSTOCK HOMEBUILDING COMPANIES, INC.
"ARTICLE I NAME
ARTICLE II REGISTERED OFFICE AND AGENT
ARTICLE III PURPOSE
ARTICLE IV CAPITAL STOCK
ARTICLE V BOARD OF DIRECTORS
ARTICLE VI LIMITATION OF LIABILITY
ARTICLE VII INDEMNIFICATION
ARTICLE VIII ACTION BY WRITTEN CONSENT/SPECIAL MEETINGS OF STOCKHOLDERS
ARTICLE IX AMENDMENT

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Exhibit 3.4

AMENDED AND RESTATED
BYLAWS OF
COMSTOCK HOMEBUILDING COMPANIES, INC.

ARTICLE I
Offices

        SECTION 1.     Registered Office.     The registered office of the Corporation in the State of Delaware shall be located at 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle. The name of the Corporation's registered agent at such address shall be Corporation Service Company. The registered office and/or registered agent of the Corporation may be changed from time to time by action of the Board of Directors.

        SECTION 2.     Other Offices.     The Corporation may have an office or offices other than said registered office at such place or places, either within or without the State of Delaware, as the Board of Directors shall from time to time determine or the business of the Corporation may require.


ARTICLE II
Meetings of Stockholders

        SECTION 1.     Place of Meetings.     All meetings of the stockholders for the election of directors or for any other purpose shall be held at any such place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors and stated in the notice of meeting or in a duly executed waiver thereof.

        SECTION 2.     Annual Meeting.     An annual meeting of stockholders shall be held each year and stated in a notice of meeting or in a duly executed waiver thereof. The date, time and place of such meeting shall be determined by the Chief Executive Officer of the Corporation; provided that if the Chief Executive Officer does not act, the Board of Directors shall determine the date, time, and place of such meeting. At such annual meeting, the stockholders shall elect directors to replace those directors whose terms expire at such annual meeting and transact such other business as may properly be brought before the meeting.

        SECTION 3.     Special Meetings.     Special meetings of stockholders may be called for any purpose in the manner provided in the Amended and Restated Certificate of Incorporation of the Corporation (as may be further amended or restated from time to time, the "Certificate of Incorporation") and may be held at such time and place, within or without the State of Delaware, as shall be stated in a notice of meeting or in a duly executed waiver of notice thereof.

        SECTION 4.     Notice of Meetings.     Except as otherwise expressly required by statute, written notice of each annual and special meeting of stockholders stating the date, place and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each stockholder of record entitled to vote thereat not less than ten (10) nor more than sixty (60) days before the date of the meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Notice shall be given personally or by mail and, if by mail, shall be sent in a postage prepaid envelope, addressed to the stockholder at his address as it appears on the records of the Corporation. Notice by mail shall be deemed given at the time when the same shall be deposited in the United States mail, postage prepaid. Notice of any meeting shall not be required to be given to any person who attends such meeting, except when such person attends the meeting in person or by proxy for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, or who, either before or after the meeting, shall submit a signed written waiver of notice, in person or by proxy. Neither the business to be transacted at, nor the purpose of, an annual or special meeting of stockholders need be specified in any written waiver of notice.



        SECTION 5.     List of Stockholders.     The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before each meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, showing the address of and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

        SECTION 6.     Quorum; Adjournments.     The holders of a majority of the voting power of the issued and outstanding stock of the Corporation entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of stockholders, except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented by proxy at any meeting of stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented by proxy. At such adjourned meeting at which a quorum shall be present or represented by proxy, any business may be transacted which might have been transacted at the meeting as originally called. If the adjournment is for more than thirty (30) days, or, if after adjournment a new record date is set, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

        SECTION 7.     Organization.     At each meeting of stockholders, the Chairman of the Board, if one shall have been elected, or, in his absence or if one shall not have been elected, the Chief Executive Officer shall act as chairman of the meeting. The Secretary or, in his absence or inability to act, the person whom the chairman of the meeting shall appoint secretary of the meeting shall act as secretary of the meeting and keep the minutes thereof.

        SECTION 8.     Order of Business.     The order of business at all meetings of the stockholders shall be as determined by the chairman of the meeting.

        SECTION 9.     Voting.     Except as otherwise provided by the Certificate of Incorporation (including pursuant to any duly authorized certificate of designation) or the General Corporation Law of the State of Delaware, each stockholder of the Corporation shall be entitled at each meeting of stockholders to one (1) vote for each share of capital stock of the Corporation standing in his name on the record of stockholders of the Corporation:

Each stockholder entitled to vote at any meeting of stockholders may authorize another person or persons to act for him by a proxy which is in writing or transmitted as permitted by law, including, without limitation, electronically, via telegram, internet, interactive voice response system, or other means of electronic transmission executed or authorized by such stockholder or his attorney-in-fact, but no proxy shall be voted after (3) three years from its date, unless the proxy provides for a longer period. Any such proxy shall be delivered to the secretary of the meeting at or prior to the time

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designated in the order of business for so delivering such proxies. Any proxy transmitted electronically shall set forth information from which it can be determined by the secretary of the meeting that such electronic transmission was authorized by the stockholder. When a quorum is present at any meeting, the vote of the holders of a majority of the voting power of the issued and outstanding stock of the Corporation entitled to vote thereon, present and voting, in person or represented by proxy, shall decide any question brought before such meeting, unless the question is one upon which by express provision of statute or of the Certificate of Incorporation or of these Bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question. Unless required by statute, or determined by the chairman of the meeting to be advisable, the vote on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy, if there be such proxy, and shall state the number of shares voted and the number of votes to which each share is entitled.

        SECTION 10.     Inspectors.     The Board of Directors may, in advance of any meeting of stockholders, appoint one or more inspectors to act at such meeting or any adjournment thereof. If any of the inspectors so appointed shall fail to appear or act, the chairman of the meeting shall, or if inspectors shall not have been appointed, the chairman of the meeting may, appoint one or more inspectors. Each inspector, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability. The inspectors shall determine the number of shares of capital stock of the Corporation outstanding and the voting power of each, the number of shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the results, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the chairman of the meeting, the inspectors shall make a report in writing of any challenge, request or matter determined by them and shall execute a certificate of any fact found by them. No director or candidate for the office of director shall act as an inspector of an election of directors. Inspectors need not be stockholders.

        SECTION 11.     Advance Notice Provisions for Election of Directors.     Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation. Nominations of persons for election to the Board of Directors may be made at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose of electing directors as provided under Section 3 of this Article II, (a) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (b) by any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 11 and on the record date for the determination of stockholders entitled to vote at such meeting and (ii) who complies with the notice procedures set forth in this Section 11.

        In addition to any other applicable requirements, for a nomination to be made by a stockholder such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.

        To be timely, a stockholder's notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation (a) in the case of an annual meeting, not less than ninety (90) days nor more than one hundred twenty (120) days prior to the date of the anniversary of the previous year's annual meeting; provided, however , that in the event the annual meeting is scheduled to be held on a date more than thirty (30) days prior to or delayed by more than sixty (60) days after such anniversary date, notice by the stockholder in order to be timely must be so received not earlier than one hundred twenty (120) days prior to such annual meeting, and not later than the later of the close of business ninety (90) days prior to such annual meeting or the tenth (10th) day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure of the

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date of the annual meeting was made and (b) in the case of a special meeting of stockholders called for the purpose of electing directors, not later than the close of business on the tenth (10th) day following the day on which notice of the date of the special meeting was mailed or public disclosure of the date of the special meeting was made, whichever first occurs.

        To be in proper written form, a stockholder's notice to the Secretary must set forth (a) as to each person whom the stockholder proposes to nominate for election as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by the person and (iv) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder; and (b) as to the stockholder giving the notice (i) the name and record address of such stockholder, (ii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such stockholder, (iii) a description of all arrangements or understandings between such stockholder and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such stockholder, (iv) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice and (v) any other information relating to such stockholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.

        No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 11. If the chairman of the meeting determines that a nomination was not made in accordance with the foregoing procedures, the chairman shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded.

        SECTION 12.     Advance Notice Provisions for Business to be Transacted at Annual Meeting.     No business may be transacted at an annual meeting of stockholders, other than business that is either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof), (b) otherwise properly brought before the annual meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (c) otherwise properly brought before the annual meeting by any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 12 and on the record date for the determination of stockholders entitled to vote at such annual meeting and (ii) who complies with the notice procedures set forth in this Section 12.

        In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.

        To be timely, a stockholder's notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the date of the anniversary of the previous year's annual meeting; provided, however , that in the event the annual meeting is scheduled to be held on a date more than thirty (30) days prior to or delayed by more than sixty (60) days after such anniversary date, notice by the stockholder in order to be timely must be so received not earlier than one hundred twenty (120) days prior to such annual meeting, and not later than the later of the close of business ninety

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(90) days prior to such annual meeting or the tenth (10th) day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure of the date of the annual meeting was made.

        To be in proper written form, a stockholder's notice to the Secretary must set forth as to each matter such stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of such stockholder, (iii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such stockholder, (iv) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal of such business by such stockholder and any material interest of such stockholder in such business and (v) a representation that such stockholder intends to appear in person or by proxy at the annual meting to bring such business before the meeting.

        No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 12; provided, however , that, once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 12 shall be deemed to preclude discussion by any stockholder of any such business. If the chairman of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the chairman shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.

        SECTION 13.     Action by Written Consent.     For so long as either any class of the Corporation's capital stock is registered under Section 12 of the Exchange Act, or the Corporation is required to file periodic reports with the Securities and Exchange Commission pursuant to Section 15(d) of the Exchange Act with respect to any class of the Corporation's capital stock: (i) the stockholders of the corporation may not take any action by written consent in lieu of a meeting, and must take any actions at a duly called annual or special meeting of stockholders and the power of stockholders to consent in writing without a meeting is specifically denied.

        SECTION 14.     Fixing the Record Date.     In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the day next preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however , that the Board of Directors may fix a new record date for the adjourned meeting.


ARTICLE III
Board of Directors

        SECTION 1.     General Powers.     The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors may exercise all such authority and powers of the Corporation and do all such lawful acts and things as are not by statute or the Certificate of Incorporation directed or required to be exercised or done by the stockholders.

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        SECTION 2.     Number, Election and Term.     Subject to any rights of the holders of any class or series of Preferred Stock to elect additional directors under specified circumstances, the number of directors which shall constitute the Board of Directors shall be fixed from time to time by resolution adopted by the affirmative vote of a majority of the total number of directors then in office. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors; provided, however, whenever the holders of any class or series of Preferred Stock of the Corporation are entitled to elect one or more directors pursuant to the provisions of the Certificate of Incorporation (including pursuant to any duly authorized certificate of designation), such directors shall be elected by a plurality of the votes of such class or series of Preferred Stock present in person or represented by proxy at the meeting and entitled to vote in the election of such directors. The directors shall be elected and shall hold office in the manner provided in the Certificate of Incorporation.

        SECTION 3.     Place of Meetings.     Meetings of the Board of Directors shall be held at such place or places, within or without the State of Delaware, as the Board of Directors may from time to time determine or as shall be specified in the notice of any such meeting.

        SECTION 4.     Annual Meetings.     The Board of Directors shall meet for the purpose of organization, the election of officers and the transaction of other business, as soon as practicable after each annual meeting of stockholders, on the same day and at the same place where such annual meeting shall be held. In the event such annual meeting is not so held, the annual meeting of the Board of Directors may be held at such other time or place (within or without the State of Delaware) as shall be specified in a notice thereof given as hereinafter provided in Section 7 of this Article III.

        SECTION 5.     Regular Meetings.     Regular meetings of the Board of Directors shall he held at such time and place as the Board of Directors may fix. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held, then the meeting which would otherwise be held on that day shall be held at the same hour on the next succeeding business day.

        SECTION 6.     Special Meetings.     Special meetings of the Board of Directors may be called by the Chairman of the Board, if one shall have been elected, or by two or more directors of the Corporation or by the Chief Executive Officer.

        SECTION 7.     Notice of Meetings.     Notice of regular meetings of the Board of Directors need not be given except as otherwise required by law or these Bylaws. Notice of each special meeting of the Board of Directors, and of each regular and annual meeting of the Board of Directors for which notice shall be required, shall be given by the Secretary as hereinafter provided in this Section 7, in which notice shall be stated the time and place of the meeting. Except as otherwise required by these Bylaws, such notice need not state the purposes of such meeting. Notice of any special meeting, and of any regular or annual meeting for which notice is required, shall be given to each director at least (a) twenty-four (24) hours before the meeting if by telephone or by being personally delivered or sent by telex, telecopy, or similar means or (b) five (5) days before the meeting if delivered by mail to the director's residence or usual place of business. Such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage prepaid, or when transmitted if sent by telex, telecopy, or similar means. Neither the business to be transacted at, nor the purpose of, any special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. Any director may waive notice of any meeting by a writing signed by the director entitled to the notice and filed with the minutes or corporate records.

        SECTION 8.     Waiver of Notice and Presumption of Assent.     Any member of the Board of Directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken

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unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.

        SECTION 9.     Quorum and Manner of Acting.     A majority of the entire Board of Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, and, except as otherwise expressly required by statute or the Certificate of Incorporation or these Bylaws, the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. In the absence of a quorum at any meeting of the Board of Directors, a majority of the directors present thereat may adjourn such meeting to another time and place. Notice of the time and place of any such adjourned meeting shall be given to all of the directors unless such time and place were announced at the meeting at which the adjournment was taken, in which case such notice shall only be given to the directors who were not present thereat. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called. The directors shall act only as a Board and the individual directors shall have no power as such.

        SECTION 10.     Organization.     At each meeting of the Board of Directors, the Chairman of the Board, if one shall have been elected, or, in the absence of the Chairman of the Board or if one shall not have been elected, the Chief Executive Officer (or, in his absence, another director chosen by a majority of the directors present) shall act as chairman of the meeting and preside thereat. The Secretary or, in his absence, any person appointed by the chairman, shall act as secretary of the meeting and keep the minutes thereof.

        SECTION 11.     Resignations; Newly Created Directorships; Vacancies; and Removals.     Any director of the Corporation may resign at any time by giving notice in writing or by electronic transmission of his resignation to the Corporation. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon its receipt. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Newly created directorships resulting from any increase in the number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification, removal or any other cause shall be filled in the manner provided in the Certificate of Incorporation. Any director may be removed in the manner provided in the Certificate of Incorporation.

        SECTION 12.     Compensation.     The Board of Directors shall have authority to fix the compensation, including fees and reimbursement of expenses, of directors for services to the Corporation in any capacity.

        SECTION 13.     Committees.     The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate one or more committees, including an executive committee, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Except to the extent restricted by statute or the Certificate of Incorporation, each such committee, to the extent provided in the resolution creating it, shall have and may exercise all the powers and authority of the Board of Directors and may authorize the seal of the Corporation to be affixed to all papers which require it. Each such committee shall serve at the pleasure of the Board of Directors and have such name as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors.

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        SECTION 14.     Committee Rules.     Each committee of the Board of Directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the Board of Directors designating such committee. Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum. In the event that a member and that member's alternate, if alternates are designated by the Board of Directors as provided in Section 13 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member.

        SECTION 15.     Action by Written Consent.     Unless restricted by the Certificate of Incorporation, any action required or permitted to be taken by the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings are filed with the minutes of the proceedings of the Board of Directors or such committee, as the case may be. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

        SECTION 16.     Telephonic and Other Meetings.     Unless restricted by the Certificate of Incorporation, any one or more members of the Board of Directors or any committee thereof may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other. Participation by such means shall constitute presence in person at a meeting.


ARTICLE IV
Officers

        SECTION 1.     Number and Qualifications.     The officers of the Corporation shall be elected by the Board of Directors and shall include the Chief Executive Officer, the President and Chief Operating Officer, the Chief Financial Officer, and the Secretary. The Corporation may also have, at the discretion of the Board of Directors, such other officers as are desired, including a Chairman of the Board, one or more Vice Presidents, one or more Assistant Treasurers, one or more Assistant Secretaries, and such other officers as may be necessary or desirable for the business of the Corporation. In the event there are two or more Vice Presidents, then one or more may be designated as Executive Vice President, Senior Vice President, or other similar or dissimilar title. As the time of the election of officers, the directors may by resolution determine the order of their rank. Any number of offices may be held by the same person, and no officer except the Chairman of the Board, if any, need be a director. In its discretion, the Board of Directors may choose not to fill any office for any period as it may deem advisable, except that the offices of Chief Executive Officer and Secretary shall be filled as expeditiously as possible.

        SECTION 2.     Election and Term of Office.     The officers of the Corporation shall be elected annually by the Board of Directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. The Chairman of the Board, if any, and Chief Executive Officer shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of stockholders or as soon thereafter as is convenient. Vacancies may be filled or new offices created and filled at any meeting of the Board of Directors. Each officer shall hold office until his successor shall have been duly elected and shall have qualified, or until his death, or until he shall have resigned or have been removed, as hereinafter provided in these Bylaws.

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        SECTION 3.     Resignations.     Any officer of the Corporation may resign at any time by giving written notice of his resignation to the Corporation. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon receipt. Unless otherwise specified therein, the acceptance of any such resignation shall not be necessary to make it effective.

        SECTION 4.     Removal.     Any officer of the Corporation may be removed, either with or without cause, at any time, by the Board of Directors at any meeting thereof.

        SECTION 5.     Vacancies.     Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the Board of Directors for the unexpired portion of the term by the Board of Directors then in office.

        SECTION 6.     Compensation.     The compensation of the officers of the Corporation for their services as such officers shall be fixed from time to time by the Board of Directors. An officer of the Corporation shall not be prevented from receiving compensation by reason of the fact that he is also a director of the Corporation.

        SECTION 7.     Chairman of the Board.     The Chairman of the Board, if such an officer be elected, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board of Directors or prescribed by these Bylaws. If there is no Chief Executive Officer, the Chairman of the Board shall in addition be the Chief Executive Officer of the Corporation and shall have the powers and duties prescribed in Section 8 of this Article IV.

        SECTION 8.     Chief Executive Officer.     The Chief Executive Officer shall be the chief executive officer of the Corporation and shall have the powers and perform the duties incident to that position. He shall, in the absence of the Chairman of the Board, or if a Chairman of the Board shall not have been elected, preside at each meeting of the Board of Directors or the stockholders. He shall be an ex-officio member of all committees. Subject to the powers of the Board of Directors, he shall be in the general and active charge of the entire business and affairs of the Corporation, including authority over its officers, agents and employees, and shall have such other duties as may from time to time be assigned to him by the Board of Directors. The Chief Executive Officer shall see that all orders and resolutions of the Board of Directors are carried into effect, and execute bonds, mortgages and other contracts requiring a seal under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation.

        SECTION 9.     President and Chief Operating Officer.     The President and Chief Operating Officer shall be the chief operating officer of the Corporation. He shall perform all duties incident to the office of President, and be responsible for the general direction of the operations of the business, reporting to the Chief Executive Officer, and shall have such other duties as may from time to time be assigned to him by the Board of Directors or as may be provided in these Bylaws. At the written request of the Chief Executive Officer, or in his absence or in the event of his inability to act, the President shall perform the duties of the Chief Executive Officer, and, when so acting, shall have the powers of and be subject to the restrictions placed upon the Chief Executive Officer in respect of the performance of such duties.

        SECTION 10.     Vice President.     Each Vice President shall perform all such duties as from time to time may be assigned to him by the Board of Directors. At the written request of the President, or in the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors, or if not ranked, the Vice President designated by the Board of Directors, shall perform the duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions placed upon the President in respect of the performance of such duties.

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        SECTION 11.     Chief Financial Officer.     The Chief Financial Officer shall:

The Chief Financial Officer may also be the Treasurer if so determined by the Board of Directors.

        SECTION 12.     Secretary.     The Secretary shall:

        SECTION 13.     The Assistant Treasurer.     The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors (or, if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of his inability to act or his failure to act (in violation of a duty to act or in contravention of direction to act by the Board of Directors), perform the duties and exercise the powers of the Treasurer and shall perform such other duties as from time to time may be assigned by the Board of Directors.

        SECTION 14.     The Assistant Secretary.     The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall, in the absence of the Secretary or in the event of his inability to act or his failure to act (in violation of a duty to act or in contravention of direction to act by the Board of Directors), perform the duties and exercise the powers of the Secretary and shall perform such other duties as from time to time may be assigned by the Board of Directors.

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        SECTION 15.     Other Officers, Assistant Officers and Agents.     Officers, assistant officers and agents, if any, other than those whose duties are provided for in these Bylaws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the Board of Directors.

        SECTION 16.     Officers' Bonds or Other Security.     If required by the Board of Directors, any officer of the Corporation shall give a bond or other security for the faithful performance of his duties, in such amount and with such surety as the Board of Directors may require.

        SECTION 17.     Absence or Disability of Officers.     In the case of the absence or disability of any officer of the Corporation and of any person hereby authorized to act in such officer's place during such officer's absence or disability, the Board of Directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.


ARTICLE V
Stock Certificates and Their Transfer

        SECTION 1.     Stock Certificates.     The Board of Directors may issue stock certificates, or may provide by resolution or resolutions that some or all of any or all classes or series of stock of the Corporation shall be uncertificated shares of stock. Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stock represented by a certificate and, upon request, every holder of uncertificated shares shall be entitled to have a certificate, signed by, or in the name of the Corporation by, the Chairman of the Board or, the Chief Executive Officer, the President or a Vice-President and by the Chief Financial Officer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by him or her in the Corporation. A certificate representing shares issued by the Corporation shall, if the Corporation is authorized to issue more than one class or series of stock, set forth upon the face or back of the certificate, or shall state that the Corporation will furnish to any stockholder upon request and without charge, a full statement of the designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. The Corporation shall furnish to any holder of uncertificated shares, upon request and without charge, a full statement of the designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Any request by a holder for a certificate shall be in writing and directed to the Secretary of the Corporation.

        SECTION 2.     Facsimile Signatures.     Any or all of the signatures on a certificate may be a facsimile, engraved or printed. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

        SECTION 3.     Lost Certificates.     The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his legal representative, to give the Corporation a bond in such sum as it may direct sufficient to indemnify it against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate

        SECTION 4.     Transfers of Stock.     Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to

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the person entitled thereto, cancel the old certificate and record the transaction upon its records; provided, however , that the Corporation shall be entitled to recognize and enforce any lawful restriction on transfer. Whenever any transfer of stock shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of transfer if, when the certificates are presented to the Corporation for transfer, both the transferor and the transferee request the Corporation to do so.

        SECTION 5.     Transfer Agents and Registrars.     The Board of Directors may appoint, or authorize any officer or officers to appoint, one or more transfer agents and one or more registrars.

        SECTION 6.     Regulations.     The Board of Directors may make such additional rules and regulations, not inconsistent with these Bylaws, as it may deem expedient concerning the issue, transfer and registration of certificates for shares of stock of the Corporation.

        SECTION 7.     Registered Stockholders.     The Corporation shall be entitled to recognize the exclusive right of a person registered on its records as the owner of shares of stock to receive dividends and to vote as such owner, shall be entitled to hold liable for calls and assessments a person registered on its records as the owner of shares of stock, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares of stock on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.


ARTICLE VI
General Provisions

        SECTION 1.     Dividends.     Subject to the provisions of statutes and the Certificate of Incorporation, dividends upon the shares of capital stock of the Corporation may be declared by the Board of Directors at any regular or special meeting. Dividends may be paid in cash, in property or in shares of stock of the Corporation, unless otherwise provided by statute or the Certificate of Incorporation.

        SECTION 2.     Reserves.     Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors may, from time to time, in its absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation or for such other purpose as the Board of Directors may think conducive to the interests of the Corporation. The Board of Directors may modify or abolish any such reserves in the manner in which it was created.

        SECTION 3.     Seal.     The seal of the Corporation shall be in such form as shall be approved by the Board of Directors, which form may be changed by resolution of the Board of Directors.

        SECTION 4.     Fiscal Year.     The fiscal year of the Corporation shall end on December 31 of each fiscal year and may thereafter be changed by resolution of the Board of Directors.

        SECTION 5.     Checks, Notes, Drafts, Etc.     All checks, notes, drafts or other orders for the payment of money of the Corporation shall be signed, endorsed or accepted in the name of the Corporation by such officer, officers, person or persons as from time to time may be designated by the Board of Directors or by an officer or officers authorized by the Board of Directors to make such designation.

        SECTION 6.     Execution of Contracts, Deeds, Etc.     The Board of Directors may authorize any officer or officers, agent or agents, in the name and on behalf of the Corporation to enter into or execute and deliver any and all deeds, bonds, mortgages, contracts and other obligations or instruments, and such authority may be general or confined to specific instances.

        SECTION 7.     Loans.     The Corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer (other than a named executive officer, as defined by the Securities and Exchange Commission) or other employee of the Corporation or of its subsidiary, including any officer

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or employee who is a director of the Corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the Corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of Directors shall approve, including, without limitation, a pledge of shares of stock of the Corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the Corporation at common law or under any statute.

        SECTION 8.     Voting of Stock in Other Corporations.     Unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board, or the Chief Executive Officer, from time to time, may (or may appoint one or more attorneys or agents to) cast the votes which the Corporation may be entitled to cast as a shareholder or otherwise in any other corporation, any of whose shares or securities may be held by the Corporation, at meetings of the holders of the shares or other securities of such other corporation. In the event one or more attorneys or agents are appointed, the Chairman of the Board, or the Chief Executive Officer may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent. The Chairman of the Board, or the Chief Executive Officer may, or may instruct the attorneys or agents appointed to, execute or cause to be executed in the name and on behalf of the Corporation and under its seal or otherwise, such written proxies, consents, waivers or other instruments as may be necessary or proper in the circumstances.

        SECTION 9.     Inspection of Books and Records.     Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the Corporation's stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person's interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right of inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the Corporation at its registered office in the State of Delaware or at its principal place of business.

        SECTION 10.     Inconsistency Provisions.     In the event that any provision of these Bylaws is or becomes inconsistent with any provision of the Certificate of Incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these Bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.


ARTICLE VII
Amendments

        These Bylaws may be amended or repealed or new Bylaws adopted only in accordance with Article V of the Certificate of Incorporation.

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AMENDED AND RESTATED BYLAWS OF COMSTOCK HOMEBUILDING COMPANIES, INC.
ARTICLE I Offices
ARTICLE II Meetings of Stockholders
ARTICLE III Board of Directors
ARTICLE IV Officers
ARTICLE V Stock Certificates and Their Transfer
ARTICLE VI General Provisions
ARTICLE VII Amendments

Exhibit 5.1

[GREENBERG TRAURIG]

December 6, 2004

Comstock Homebuilding Companies, Inc.
11465 Sunset Hills Road
Suite 510
Reston, Virginia 20190

Ladies and Gentlemen:

        Comstock Homebuilding Companies, Inc., a Delaware corporation (the " Company "), has filed with the Securities and Exchange Commission a Registration Statement on Form S-1, as amended (Registration No. 333-118193) (the " Registration Statement "), under the Securities Act of 1933, as amended (the " Act "). The Registration Statement relates to the sale by the Company of up to an aggregate of 4,140,000 shares of the Company's Class A common stock, $0.01 par value per share (the " Common Stock "), including (i) 3,600,000 shares of Common Stock (the " Firm Shares ") to be sold by the Company to the underwriters for whom BB&T Capital Markets, a division of Scott and Stringfellow, Inc., is acting as representative (the " Underwriters "); and (ii) up to 540,000 shares of Common Stock that the Underwriters will have an option to purchase solely for the purpose of covering over-allotments (the " Option Shares ," and together with the Firm Shares, the " Shares "). We have acted as counsel to the Company in connection with the preparation and filing of the Registration Statement.

        In connection with the preparation of the Registration Statement and this opinion letter, we have examined, considered and relied upon the following documents (collectively, the " Documents "):

        (i)    the Company's amended and restated certificate of incorporation, to be filed with the Secretary of State of the State of Delaware immediately prior to the closing of this offering (the " Restated Charter ");

        (ii)   the Company's amended and restated bylaws;

        (iii)  resolutions of the board of directors of the Company;

        (iv)  the Registration Statement and schedules and exhibits thereto; and

        (v)   such other documents and matters of law as we have considered necessary or appropriate for the expression of the opinions contained herein.

        In rendering the opinions set forth below, we have assumed without investigation the genuineness of all signatures and the authenticity of all Documents submitted to us as originals, the conformity to authentic original documents of all Documents submitted to us as copies, and the veracity of the Documents. As to questions of fact material to the opinions hereinafter expressed, we have relied upon the representations and warranties of the Company made in the Documents.

        Based upon the foregoing examination, and subject to the qualifications set forth below, we are of the opinion that, following the filing with the Secretary of State of the State of Delaware of the Restated Charter, the Shares will be duly authorized and, when issued, delivered and paid for in accordance with the terms of the Underwriting Agreement filed as Exhibit 1.1 to the Registration Statement, will be validly issued, fully paid and non-assessable.

        The opinions expressed above are limited to the General Corporation Law of the State of Delaware which includes the statutory provisions thereof as well as all applicable provisions of the Constitution of the State of Delaware and reported judicial decisions interpreting these laws. Our opinion is rendered only with respect to laws, and the rules, regulations and orders thereunder, which are currently in effect.



        We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the caption "Legal Matters" in the prospectus comprising a part of the Registration Statement. In giving this consent, we do not thereby admit that we are included within the category of persons whose consent is required by Section 7 of the Act and the rules and regulations promulgated thereunder.

    Very truly yours,

 

 

/s/  
GREENBERG TRAURIG, LLP       
GREENBERG TRAURIG, LLP



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Exhibit 10.3

AGREEMENT OF SUBLEASE

         THIS AGREEMENT OF SUBLEASE (this "Sublease") is made as of the 1st day of October, 2004 by and between COMSTOCK ASSET MANAGEMENT, L.C. ("Sublandlord"), and COMSTOCK HOMES, INC., a Virginia Limited Liability Company ("Subtenant").


WITNESSETH

        WHEREAS, Sublandlord has certain rights of possession and use of real estate and improvements for which Subtenant desires to utilize a portion of such real estate and improvements; and

        WHEREAS, Subtenant and Sublandlord desire to enter into this Sublease for a portion of the same premises.

        NOW, THEREFORE, in consideration of the mutual covenants herein and for other valuable consideration, the sufficiency and receipt of which is hereby acknowledged by the parties, Sublandlord and Subtenant mutually agree, and intend to be legally bound as follows:

1.
Premises.     Sublandlord leases to Subtenant all of Sublandlord's right, title and interest in that certain premise to be known as Suite 405 ("Sublease Premises"), attached as Exhibit A , which has been measured as approximately Twenty Thousand Six Hundred and Nine (20,609) rentable square feet. The Sublease Premises, is located on the fourth (4th) and fifth (5th) floors of the building known as 11465 Sunset Hills Road, Reston, Virginia 20190 (the "Building"). The Sublease Premises has been measured by the Sublandlord's architect, Architecture Design Associates, Inc.

2.
Sublease Term.

A.
The "Sublease Term" shall commence (the "Commencement Date") on October 1st, 2004 or when the Sublandlord has secured the consent of the prime Landlord.

B.
The Sublease Term shall expire upon the end of the Sixtieth (60 th ) month of the Sublease Term following the Commencement Date (i.e. September 30, 2009). Subtenant is hereby given the option to renew this Sublease for two (2) periods of three (3) years, or one (1) period of either; three (3) years, five (5) years, or seven (7) years ("Option Periods"), provided that the Lease Renewal Option has been exercised by the Sublandlord and there has been no Event of Default under any of the terms of this sublease either at the time of the giving of any such notice or at the time of commencement of any renewal. Subtenant shall give notice in writing to the Sublandlord of its exercise of such option at least six (6) months prior to the termination of the Initial Term. The Base Rent for each Option Period shall be based on the same terms, covenants and conditions as are contained in this Sublease except that the Basic Rent for the first year of the renewal period shall be at the then current market rate (for comparable buildings in the general vicinity of the Building), as agreed to by the parties hereto. In the event the parties can not agree to the current market rate as set forth above then the Sublandlord and Subtenant shall each select a licensed commercial real estate broker doing business in Northern Virginia (the "Selected Brokers"), whereupon the Selected Brokers shall select a third similarly qualified broker, who shall each then provide to the parties their expert opinion as to the then current market rate and the average of the three opinions shall be the current market rate for the purposes of this paragraph. In establishing the Basic Rent for the renewal term, the parties or the brokers who determine the Basic Rent shall consider and take into account subtenant's continuing obligation to pay Additional Charges as defined in the Lease. Notwithstanding the foregoing, in no event shall the Basic Rent for the first year of any Option Period be less then the current rate at the end of the most recent Sublease year.

C.
Space shall be available for occupancy as of the Commencement Date. "Available for Occupancy" means that Subtenant may make use of the Sublease Premises for normal office

3.
Base Rent.     Subtenant shall pay to Sublandlord rent equal to the product of Twenty-Three and 50/100ths Dollars ($23.50) ("Rental Rate") times the number of rentable square feet in the Sublease Premises (20,609) and shall be paid in equal monthly installments on the first (1 st ) of each month. If the Commencement Date is not the 1 st of the month, then for the initial partial month of the sublease, Subtenant shall pay to Sublandlord a prorated amount of the Monthly Base Rent.
Fourth Floor—Suite 400—4,895 SF
Lease Year
  Annual Rent
  Monthly Rent
  Rent/S.F.
Lease Year 1   $ 115,032.50   $ 9,586.04   $ 23.50
Lease Year 2   $ 119,633.80   $ 9,969.48   $ 24.44
Lease Year 3   $ 124,419.15   $ 10,368.26   $ 25.42
Lease Year 4   $ 129,395.92   $ 10,782.99   $ 26.43
Lease Year 5   $ 134,571.75   $ 11,214.31   $ 27.49
Fifth Floor—Suite 510—15,714 SF
Lease Year
  Annual Rent
  Monthly Rent
  Rent/S.F.
Lease Year 1   $ 369,279.00   $ 30,773.25   $ 23.50
Lease Year 2   $ 384,050.16   $ 32,004.18   $ 24.44
Lease Year 3   $ 399,412.17   $ 33,284.35   $ 25.42
Lease Year 4   $ 415,388.65   $ 34,615.72   $ 26.43
Lease Year 5   $ 432,004.20   $ 36,000.35   $ 27.49
4.
Late Payments.     Should Monthly Installments of the Base Rent not be made on or before the 5 th day of a calendar month, the payment shall be considered overdue and Sublandlord may begin charging Subtenant an interest rate per annum equal to the sum of (i) the prime rate of interest established and publicly announced by The Chase Manhattan Bank, N.A., New York, plus (ii) four percent (4%), until such payment is made. In no event shall the default rate of interest be less then twelve percent (12%) nor more then eighteen percent (18%).

4.
Escalation.     The Base Rent shall increase by four percent (4%) per annum commencing on the first anniversary of the Sublease Term.

5.
Subordination.     This Sublease is in all respects subject and subordinated to the Lease between Landlord and Sublandlord, a copy of which is attached hereto and is incorporated as Exhibit B .

6.
Assignment.     No assignment of the Sublease nor further sublease of any portion of the Sublease Premises shall be made without the prior written consent of Sublandlord and approval of Landlord.

7.
Operating Expenses.     A pro-rata portion of any passthroughs from the prime landlord of the Sublease Premises in excess of the Base Year identified in the Lease shall result in a direct passthrough to the Subtenant.

8.
Parking.     Sublandlord shall provide Subtenant with the non-exclusive use of 3.5 parking spaces for each 1,000 square feet of leased space free of charge. Subtenant shall be provided reserved parking spaces (including covered parking spaces) as detailed on the Reserved Parking Plan attached hereto as EXHIBIT D .

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9.
Condition, Acceptance and Use of Sublease Premises

A.
Upon the Commencement Date, Subtenant shall accept the Subleased Premises in their existing condition and state of repair. Sublandlord and Subtenant both acknowledge that a portion of the Leased Premises currently contains certain Office Furniture and/or Equipment ( Exhibit C ) which is the property of Landlord. The Landlord agrees that, without payment of additional rent, the Subtenant shall have the right to use such Office Furniture and/or Equipment during the Lease Term. At the expiration of the Lease Term, the Office Furniture and/or Equipment shall be delivered to the Landlord in condition substantially the same as its condition as of the effective date hereof, with the exception of normal wear and tear. Subtenant acknowledges that no representations, statements or warranties, express or implied, have been made by or on behalf of the Sublandlord in respect to their condition, of the use or occupation that may be made thereof, and that Sublandlord shall in no event whatsoever be liable for any latent defects in the Subleased Premises or in the equipment therein. Sublandlord shall enforce the provisions of the Lease with regard to Landlord's obligations to provide services to the Subleased Premises and common areas.

B.
Acceptance of the Subleased Premises by Subtenant shall be construed as recognition that the Subleased Properties are in a good state of repair and in sanitary condition. Sublandlord shall not be liable for any losses or damages incurred by Subtenant due to failure of operation of the heating, cooling, or other utility equipment or due to the necessity of repair of the same.

C.
The Subleased Premises shall be used or occupied by Subtenant solely for executive and general office uses as permitted in Section 6 of the Lease and shall not be used for any other purpose. Subtenant shall not use or occupy the Subleased Premises for any unlawful purpose nor place any excessive or unreasonable demands upon the building.

D.
Subtenant shall surrender the Subleased Premises at the expiration of the term hereof, or any renewal thereof, or upon other termination hereunder, in the same condition as when Subtenant took possession, reasonable wear and tear excepted.

E.
Except as specifically provided herein, Sublandlord shall have no responsibility whatsoever with respect to the Subleased Premises, the condition thereof or Subtenant's property situated therein, except for loss, injury or damage caused by Sublandlord's gross negligence or willful misconduct. Sublandlord shall not be liable for the failure by Landlord to keep and perform, according to the terms of the Lease, Landlord's duties, covenants, agreements, obligations, restrictions, conditions and provisions, nor for any delay or interruption in Landlord's keeping and performing the same. Sublandlord hereby assigns to Subtenant, for so long as this Sublease shall be in force and effect, any and all rights of Sublandlord under the Lease with respect to the Subleased Premises and causes of action which Sublandlord may have against Landlord with respect to the Subleased Premises because of any default by Landlord under the Lease, excluding, however, any right of self-help or rent abatement. Sublandlord agrees to cooperate with and join Subtenant in any claims or suits brought by Subtenant against Landlord under the Lease, provided that such participation shall be without cost or expense to Sublandlord. Subtenant has inspected the Subleased Premises and its contents to its satisfaction and, except as specifically set forth herein, agrees to accept the Subleased Premises and its contents in its "as-is, where-is" condition without any obligations on Sublandlord to repair or modify the same.

10.
Default Under Superior Leases.

A.
Subtenant agrees to assume and perform, according to the terms of the Lease, all of the duties, covenants, agreements and obligations of Sublandlord under the Lease, as and when required by the Lease, with respect to the Sublease Premises, except Sublandlord's duty to

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4


12.
Insurance.     During the Sublease Term, Subtenant shall maintain insurance in force with a company licensed to do business in Virginia, with policy limits of at least Two Million Dollars ($2,000,000.00) general liability and One Million Dollars ($1,000,000.00) property damage. Sublandlord shall be named as an additional insured thereunder and Subtenant shall provide Sublandlord with a certificate of such insurance prior to the Commencement Date. Subtenant and Sublandlord each hereby waive any and all rights of recovery against the other, or against the officers, employees, agents, and representatives of the other, for loss of or damage to such waiving party or its property of the property of other under its control to the extent that such loss or damage is insured against under any insurance policy in force at the time of such loss or damage and such loss or damage has been paid by the insurance company. The insuring party shall, upon obtaining the policies of insurance required hereunder, give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this Sublease.

13.
Notices.     Every notice, approval, consent or other communication authorized or required by this Sublease ("Notice") shall not be effective unless same shall be in writing and sent postage prepaid by the United States registered or certified mail, return receipt requested, or delivered by hand, and a written receipt acknowledging such postal or hand delivery obtained for each designated recipient (or proof of refusal), directed to the other party at the following addresses (indicating the date and to whom delivered), or such other address as either party may designate by Notice given from time to time in accordance with this Paragraph:

    If to Subtenant:   COMSTOCK HOMES, INC.
11465 Sunset Hills Road
Suite 510
Reston, Virginia 20190
ATTENTION: Gregory Benson

 

 

If to Sublandlord:

 

COMSTOCK ASSET MANAGEMENT, L.C.
11465 Sunset Hills Road
Suite 510
Reston, VA 20190
Attn: Christopher Clemente
15.
Security.     Upon full execution of the Sublease, Sublandlord shall deliver to Subtenant a reasonable number of suite entry keys for the Sublease Premises and a reasonable number of Building perimeter security access cards, at no cost to Subtenant.

16.
Identity.     Sublandlord shall obtain Landlord's consent, if necessary, for Subtenant's Building Directory strips.

17.
Landlord Approval.     In the event the Lease requires the prior written consent of the Landlord prior to an action by the Subtenant, then Sublandlord, on behalf of Subtenant, shall initiate action to gain consent from Landlord within ten (10) days of Subtenant's notice to Sublandlord concerning such proposed action. The preceding sentence notwithstanding, in the event the Lease specifies the time period in which Landlord must respond to such a request for consent, then such specified time period shall control.

18.
Quiet Enjoyment.     Subtenant shall have the peaceful and quiet use of the Sublease Premises, and all rights, servitude and privileges belonging or in anywise appertaining thereto or granted thereby, for the Term of this Sublease, without hindrance or interruption by Sublandlord. Sublandlord warrants that it has full right and authority to enter into this Lease for the full term hereof.

19.
Security Deposit.     Upon Sublease execution, Subtenant shall provide Sublandlord with a Security Deposit equal to one month's Base Rent.

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20.
Renewal Option.     In the event the Subtenent does not exercise its option to renew at the end of the Sublease Term, as provided in paragraph 2 (B) then in such event this Sublease shall continue on a month to month basis until either party gives the other ninety (90) days prior written notice of their intent to terminate this Sublease.

21.
Communications.     Subtenant agrees that all communications regarding their tenancy under this Sublease shall be directed or copied to the Sublandlord who will in the case of property management issues contact the Landlord.

22.
Entire Agreement.     This Sublease, together with the Exhibits attached hereto, contains and embodies the entire agreement of the Parties hereto, and no representations, inducements or agreements, oral or otherwise, between the parties not contained in this Sublease and the Exhibits, shall be of any force and effect. This Sublease may not be modified, changed or terminated in whole or in part in any manner other than by an agreement in writing duly signed by the Parties hereto.

IN WITNESS WHEREOF, this Agreement of Sublease has been executed by the parties as of the date first hereinabove written.

SUBLANDLORD:   SUBTENANT:

COMSTOCK ASSET MANAGEMENT, L.C.

 

COMSTOCK HOMES, INC.

By:

/s/ Christopher Clemente


 

By:

/s/ Gregory Benson

Name: Christopher Clemente   Name: Gregory Benson
Title: Managing Member   Title: President

Attachments:

Exhibit A—Floor Plan of Sublease Premises
Exhibit B—Lease
Exhibit C—Office Furniture and Equipment List
Exhibit D—Reserved Parking Plan

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LANDLORD'S CONSENT AND AGREEMENT

         Comstock Partners, L.C., as Landlord under the Lease, hereby consents to the foregoing Sublease between COMSTOCK ASSET MANAGEMENT, L.C. and COMSTOCK HOMES, INC. dated October 1, 2004 and the terms and conditions thereunder. Landlord's consent herein shall not modify or affect the Lease or relieve Sublandlord from any liability thereunder.

Comstock Partners, L.C.  

By:

/s/ Christopher Clemente


 
Name: Christopher Clemente  
Title: Managing Member  
Date: October 1, 2004  

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EXHIBIT A
Sublease Premises



Exhibit B
Lease



Exhibit C
Office Furniture and/or Equipment



Exhibit D
Reserved Parking Plan




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AGREEMENT OF SUBLEASE
WITNESSETH
EXHIBIT A Sublease Premises
Exhibit B Lease
Exhibit C Office Furniture and/or Equipment
Exhibit D Reserved Parking Plan

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Exhibit 10.5


PARTIAL ASSIGNMENT OF NOTE

        THIS PARTIAL ASSIGNMENT of NOTE ("Assignment") is made and entered into this    day of                        , 2003, by and between Comstock Capital Partners, L.C., a Virginia limited liability company ("Assignor"), The Kasprowicz Family, LLC, a Virginia limited liability company ("Assignee"), and Comstock Potomac Yard, L.C., a Virginia limited liability company ("Comstock Potomac Yard").


RECITALS:

        WHEREAS, Comstock Potomac Yard purchased certain property in Arlington County, Virginia to be developed into a condominium project commonly known as Potomac Yard-Land Bay F (the "Property"); and

        WHEREAS, Crescent Potomac Yard Development, LLC ("Crescent") made a deferred purchase money loan to Comstock Potomac Yard in the amount of $16,000,000.00 (the "Senior Loan"), evidenced by a deferred purchase money promissory note (the "Senior Note") and secured by a purchase money deed of trust (the "Senior Trust") in favor of Crescent; and

        WHEREAS, Assignor made a junior loan to Comstock Potomac Yard, subordinate to the Senior Loan, in the amount of $7,000,000.00 (the "Junior Loan"), evidenced by a deed of trust note (the "Junior Note") and secured by a deed of trust (the "Junior Trust") in favor of Assignor as lender (collectively, the "Junior Loan Documents") secured by the Property.

        WHEREAS, Assignor owns the entire Junior Loan and is entitled to receive 100% of the proceeds of payments made by Comstock Potomac Yard under the Junior Loan and desires to assign a portion of its rights, title and interest under the Junior Note and Junior Deed of Trust to Assignee (a "Partial Assignment"); and

        WHEREAS, Assignee, in exchange for Assignor's Partial Assignment of its rights, title and interest in the Junior Note and Junior Deed of Trust and right to receive the proceeds of payments under the Junior Loan as it relates to the Partial Assignment, has paid to Assignor the total amount of $1,000,000.00 (the "Assignment Fee");

        NOW, THEREFORE, for and in consideration of the mutual promises of the parties herein contained, the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to the following:

        1.     Assignor hereby assigns a 14.286% interest in the Junior Note and Junior Deed of Trust to Assignee. This assignment is without warranty or recourse, except as provided in this Assignment.

        2.     Comstock Potomac Yard and Assignor hereby represent and warrant to Assignee that there exists no defaults under the Junior Note or the Junior Deed of Trust. Assignor further represents and warrants to Assignee that (a) this Assignment has been duly authorized and approved by all necessary action on the part of Assignor; (ii) as of the date of this Assignment, Assignor is the sole owner of the Junior Note, except that Assignor is assigning a 85.714% interest in the Junior Note to Schar Holdings, Inc. simultaneously with the execution of this Assignment; (c) the Junior Note, including, without limitation, the interest in the Junior Note being assigned to Assignee under this Assignment, is free and clear of all liens, encumbrances, and pledges; and (d) Assignor has the absolute right, power and authority to make the assignment to Assignee provided for in this Assignment.

        3.     Comstock Potomac Yard hereby expressly and unconditionally consents to this assignment, agrees to be bound by the terms and conditions of the Junior Note and Junior Deed of Trust and agrees to pay the amounts due under the Junior Note directly to Assignee in strict accordance with the terms of the Junior Note and this Assignment.

        4.     Assignor hereby expressly and unconditionally consents to this assignment and agrees to be bound by the terms and conditions of the Junior Note and Junior Deed of Trust.



        5.     Assignee hereby expressly and unconditionally consents to and acknowledges the lien, operation and effect of the Senior Trust and Senior Loan documents and that the same are superior in all respects to the lien, operation and effect of the Junior Trust and Junior Loan documents.

        6.     This Partial Assignment may be signed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same document. A facsimile transmission of this Agreement bearing the signature of one or more parties hereto shall be deemed to be an original.

        7.     Assignor covenants that it will, at any time and from time to time upon written request by Assignee, promptly execute and deliver to Assignee, its nominees, successors and/or assigns, any new or confirmatory instruments and do and perform any other acts which Assignee, its successors and assigns, may reasonably request in order to fully assign and transfer to and vest in Assignee, its successors and assigns, and protect its and/or their right, title and interest in and enjoyment of the interest in the Junior Note and Junior Trust contemplated to be assigned by this Assignment.

        8.     The provisions of this Assignment shall be binding upon and inure to the benefit of Assignor, Assignee, and Comstock Potomac Yard and their respective successors and assigns.

[Signature page follows]

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        IN WITNESS WHEREOF, Assignor, Assignee and Comstock Potomac Yard have executed this Agreement under seal as of the date first written above.

ASSIGNOR:   COMSTOCK POTOMAC YARD:

COMSTOCK CAPITAL PARTNERS, L.C.

 

COMSTOCK POTOMAC YARD, L.C.
a Virginia limited liability company   a Virginia limited liability company

By:



 

By:

Comstock Holding Company, Inc. Manager
Name:        
Title:
Date:

12/15/2003
  By: /s/   CHRISTOPHER CLEMENTE       
Christopher Clemente
Chief Executive Officer
Date: 12/15/2003

ASSIGNEE:

 

 

 

THE KASPROWICZ FAMILY, LLC
a Virginia limited liability company

 

By:

/s/  
SCOTT KASPROWICZ       

 

 

 
Name:
Title:
Date:
12/15/2003      

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PARTIAL ASSIGNMENT OF NOTE
RECITALS

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Exhibit 10.6

PROMISSORY NOTE

$5,000,000.00   April 30, 2004
Fairfax County, Virginia

         COMSTOCK HOLDING COMPANY, INC., a Virginia corporation (the "Borrower"), for value received, hereby promises to pay to the order of KASPROWICZ FAMILY, LLC, (together with any subsequent holder of this Note, the "Lender") at 14800 Conference Center Drive, Suite 201, Chantilly, Virginia 20151 or at such other address as the Lender shall specify in writing to the Borrower, the principal sum of up to Five Million and no/100ths Dollars ($5,000,000.00), or so much thereof as may be advanced and remain outstanding from time to time, together with interest on any unpaid principal balance hereof at the rate hereinafter provided (the "Note"), it being agreed the Lender shall make an advance of Two Million Five Hundred Thousand Dollars ($2,500,000.00) as of the date hereof and Borrower shall have the option of receiving an additional Two Million Five Hundred Thousand Dollars ($2,500,000.00) advance of principal upon prior written notice made to Borrower within ninety (90) days from the date hereof (the "Notice") provided there is no Event of Default hereunder, it being further agreed that Borrower shall be deemed to have waived a subsequent advance if the Notice is not timely made (the "Loan"), payable as follows:


THIS NOTE CONTAINS A BALLOON FEATURE

        This Note shall bear interest at a rate of twelve percent (12%) per annum (the "Loan Interest Rate").

        Payments of interest on the outstanding principal amount shall be due and payable quarterly (3 calendar months) in arrears commencing three (3) calendar months following the date hereof, and continuing on the same date of each calendar quarter thereafter.

        Both principal and interest are payable in lawful money of the United States and in immediately available funds. Interest shall be charged and calculated on the basis of a 360-day year, and applied to the actual number of days elapsed.

        If not sooner paid, and except as hereinafter provided, the entire principal of this Note and all accrued and unpaid interest shall be due and payable on the date which is thirty six (36) calendar months from the date hereof (the "Maturity Date").

        If at any time prior to the Maturity Date, the Borrower, Comstock Homes, Inc., Comstock Service Corp., Inc. and various affiliates of such entities consolidate their operations and merge into one (1) operating entity (the "Consolidation"), the outstanding principal of this Note, all accrued and unpaid interest and the Premium, as that term is hereinafter defined, shall be immediately due and payable. For the purposes of this Note, the "Premium" shall be defined as follows:

        If the Consolidation does not take place on or before twenty four (24) calendar months after the date of this Note, the Lender, at its sole option and absolute discretion may, by written notice to the

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Borrower ("Demand Notice"), to be provided no later than ten (10) calendar days after the expiration of the twenty fourth (24th) calendar month after the date of this Note, require that the Borrower pay to the Lender, within fifteen (15) days of receipt of the Demand Notice, the entire outstanding principal of this Note, all accrued and unpaid interest and a premium equal to three percent (3%) of the total amount advanced under this Note.

        In the event the principal and interest or any other sum due hereunder is not paid when due, whether upon acceleration, at maturity or otherwise, the Lender may, in addition to any other remedy the Lender may exercise, charge a late penalty in an amount equal to five percent (5%) of the overdue payment of principal and/or interest. Further, in the event that the principal and interest or any other sum due hereunder is not paid when due, whether upon acceleration, at maturity or otherwise, the Lender may, in addition to any other remedy the Lender may exercise, raise the rate of interest accruing on the unpaid principal balance of this Note by three (3) percentage points above the interest rate otherwise applicable hereunder ("Default Rate").

        Payments or prepayments on this Note shall be applied first to any late charges due hereunder, then to pay, or to reimburse the Lender for any costs and expenses incurred by or on behalf of the Lender, then to any applicable prepayment premium or penalty, then to accrued interest, and the remainder to reduce the principal balance hereof.

        Except as set forth above, Borrower shall have no right to prepay all or any part of the outstanding balance of the Loan without Lender's express written consent, which consent Lender may withhold in its sole discretion. In the event that Borrower or any Guarantor enters into any non-bank financing transaction involving a principal amount borrowed or invested in a single transaction, or in the aggregate, in an amount between $2,000,000 to $5,000,000.00 with any other party prior to repayment of the Loan, Borrower shall promptly furnish written notice to Lender describing the terms of such financing transaction, and Borrower shall have the option, exercisable within thirty (30) days after receipt of such written notice, to convert the terms of this Note to the terms accepted by Borrower or any Guarantor in such other financing transaction.

        Any of the following events shall constitute an "Event of Default" under the terms of this Note and the other documents evidencing or securing the Loan to Borrower (the "Loan Documents"):

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        Upon the occurrence of an Event of Default, the entire unpaid balance of this Note together with any and all interest, costs and fees shall, at the option of the Lender, before immediately due and payable, without further notice or demand.

        The Borrower agrees to pay all expenses, including reasonable attorneys' fees, incurred by Lender in collecting this Note or in preserving or disposing of any collateral granted as security for the payment of this Note or in defending any claim arising out of the execution of this Note or the obligation which it evidences.

        The Borrower and each co-maker, endorser, surety, guarantor or other party obligated on this Note (each of the foregoing, including the Borrower, being hereinafter referred to as an "Obligor") waives presentment, demand, protest and notice of dishonor, to the fullest extent permitted by law; waives all exemptions, whether homestead or otherwise, as to the obligations evidenced by this Note; waives any rights which it may have to require the Lender to proceed against any other person; and agrees that without notice to any Obligor and without affecting any Obligor's liability, the Lender, at any time or times, may grant extensions of the time for payment or other indulgences to any Obligor or permit the renewal of this Note, or permit the substitution, exchange or release of any security for this Note and may add or release any Obligor primarily or secondarily liable.

        The Lender shall not be deemed to have waived any of the Lender's rights or remedies hereunder unless such waiver is express and in a writing signed by the Lender; and no delay or omission by the Lender in exercising, or failure by the Lender on any one or more occasions to exercise, any of the Lender's rights hereunder, or at law or in equity, including, without limitation, the Lender's right, after any Event of Default, to declare the entire indebtedness evidenced hereby immediately due and payable, shall be construed as a novation of this Note or shall operate as a waiver or prevent the subsequent exercise of any or all of such rights. Acceptance by the Lender of any portion or all of any sum payable hereunder whether before, on or after the due date of such payment, shall not be a waiver of the Lender's right either to require prompt payment when due of all other sums payable hereunder or to exercise any of the Lender's rights, powers and remedies hereunder, or any other document evidencing or securing the loan to Borrower (jointly with this Note, the "Loan Documents"). A waiver of any right in writing on one occasion shall not be construed as a waiver of the Lender's right to insist hereafter upon strict compliance with the terms hereof and no exercise of any right by the Lender shall constitute or be deemed to constitute an election of remedies by the Lender precluding the subsequent exercise by the Lender or any or all of the rights, powers and remedies available to it hereunder, under any other Loan Document or at law or in equity.

        Noting herein shall be deemed to be a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amounts of the debt secured by the other Loan Documents or to require that all collateral shall continue to secure all of the debt owing to Lender in accordance with this Note and the other Loan Documents.

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        Lender shall not have the right at any time or from time to time to sell this Note and the loan evidenced by this Note and the other Loan Documents or participation interests therein but may otherwise assign or transfer its interest to an entity directly owned and controlled by Lender or Scott Kasprowicz. Subject to the foregoing, this Note shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. This Note shall be governed by, and shall be construed according to, the laws of the Commonwealth of Virginia.

        The Note is subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance due under this Note at a rate which could subject the Lender to either civil or criminal liability as a result of being in excess of the maximum interest rate which Borrower is permitted by law to agree to pay. If, by the terms of this Note, Borrower is at any time required or obligated to pay interest at a rate in excess of such maximum permissible rate, the rate of interest shall be deemed to be immediately reduced to such maximum permissible rate and the interest payable shall be computed at such maximum permissible rate, and, to the extent required for compliance with any such law, all prior interest payments in excess of such maximum permissible rate shall be applied, and shall be deemed to have been payments in reduction of, the principal of this Note.

        Borrower hereby warrants, represents and covenants that no funds disbursed hereunder shall be used for personal, family or household purposes, and further that the Loan evidenced by this Note is being made for business or investment purposes only.

         BORROWER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH INCLUDING, BUT NOT LIMITED TO THOSE RELATING TO (A) ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN LENDER AND BORROWER; (B) USURY OR PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE TRADE PRACTICE, LACK OF GOOD FAITH OR FAIR DEALINGS, LACK OF COMMERCIAL REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO, INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATIONS, DURESS, COERCION, UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS INTERFERENCE WITH PRESENT OR PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST; OR (F) SLANDER, LIBEL OR DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER.

         THE BORROWER REPRESENTS AND WARRANTS THAT LEGAL COUNSEL OF ITS CHOICE HAS BEEN RETAINED (OR BORROWER, BEING AWARE OF THE RIGHT TO DO SO, CHOSE NOT TO SO RETAIN COUNSEL) TO REVIEW AND INTERPRET THIS NOTE AND ALL WAIVERS AND RELEASES CONTAINED HEREIN, SAID COUNSEL HAVING EXPLAINED AND ADVISED THE BORROWER AS TO THE NOTE'S CONTENTS AND MEANING. MOREOVER, BORROWER FURTHER REPRESENTS AND WARRANTS THAT BORROWER COMPLETELY UNDERSTANDS THIS NOTE HAVING SEEN AND READ ITS CONTENTS, AND IS EXECUTING THIS NOTE VOLUNTARILY AND WITH BORROWER'S FREE CONSENT AND DESIRE. MOREOVER, THE BORROWER HAS REVIEWED AND APPROVED THE ABOVE RELEASES AND WAIVERS, AND HAS BEEN ADVISED BY COUNSEL OF THE CHOICES AVAILABLE TO BORROWER AS TO THE

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MEANING AND EFFECT OF THE RELEASES AND WAIVERS AND HAS FREELY AND WITHOUT DURESS AGREED TO EXECUTE THIS NOTE.

        Any capitalized term used in this Note and note specifically defined herein shall have the meaning assigned to it in any other agreement entered into between the Borrower and the Lender of even date herewith, unless context requires a different meaning.

         IN WITNESS WHEREOF, the Borrower has caused this Note to be executed under seal as of the date first above written.


[SIGNATURES FOLLOW]

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    BORROWER:

 

 

COMSTOCK HOLDING COMPANY, INC.

A Virginia corporation

 

 

By:

 

/s/  
CHRISTOPHER CLEMENTE       
Name:
Title:

        The undersigned guarantors Comstock Homes, Inc. and Comstock Service Corp., Inc. (jointly and severally the "Guarantor") hereby agree to an "Absolute Guaranty" of payment, performance and completion of all terms and conditions set forth in this Note, pursuant to the terms and conditions of an Unconditional Guaranty Agreement of even date herewith.

    GUARANTOR:

 

 

COMSTOCK HOMES, INC.

A Virginia corporation

 

 

By:

 

/s/  
CHRISTOPHER CLEMENTE       
Name: Christopher Clemente
Title: CEO

 

 

COMSTOCK SERVICE CORP., INC.
A Virginia corporation

 

 

By:

 

/s/  
CHRISTOPHER CLEMENTE       
Name: Christopher Clemente
Title: CEO

6




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PROMISSORY NOTE
THIS NOTE CONTAINS A BALLOON FEATURE
[SIGNATURES FOLLOW]

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Exhibit 10.10

COMSTOCK HOMEBUILDING COMPANIES, INC.
INDEMNIFICATION AGREEMENT

        This INDEMNIFICATION AGREEMENT (this "Agreement") is entered into as of                        , 200    , by and between Comstock Homebuilding Companies, Inc., a Delaware corporation (the "Company"), and            ("Indemnitee"). Capitalized terms used and not otherwise defined in this Agreement have the meanings set forth in Section 10 hereof.

RECITALS

        A.    The Company and Indemnitee recognize the continued difficulty in obtaining liability insurance for the directors, officers, employees, agents and fiduciaries of the Company and its Subsidiaries, the significant periodic increases in the cost of such insurance and the general reductions in the coverage provided by such insurance.

        B.    The Company and Indemnitee further recognize the substantial increase in corporate litigation in general, subjecting directors, officers, employees, agents and fiduciaries to expensive litigation risks at the same time as the availability and coverage of liability insurance has been severely limited.

        C.    Indemnitee does not regard the current protection available as adequate under the present circumstances, and Indemnitee and other directors, officers, employees, agents and fiduciaries of the Company may not be willing to continue to serve in such capacities without additional protection.

        D.    The Company desires to attract and retain the services of highly qualified individuals, such as Indemnitee, to serve the Company and/or one or more of its Subsidiaries and, in order to induce Indemnitee to provide or to continue to provide services to the Company and/or one or more of its Subsidiaries, wishes to provide for the indemnification and advancing of expenses to Indemnitee to the maximum extent permitted by law.

        E.    In view of the considerations set forth above, the Company desires that Indemnitee be indemnified by the Company as set forth herein.

        NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:


        Indemnitee's obligation to reimburse the Company for any Expense Advance shall be unsecured and no interest shall be charged thereon. If there has not been a Change in Control, or if there has been a Change in Control which has been approved by a majority of the directors of the Company who were directors immediately prior to the Change in Control (the "Incumbent Directors"), the Reviewing Party shall be selected by the Board of Directors of the Company, and if there has been a Change in Control which has not been approved by a majority of the Incumbent Directors, the Reviewing Party shall be the Independent Legal Counsel. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.

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[SIGNATURE PAGE FOLLOWS]

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        IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.


 

 

 

COMSTOCK HOMEBUILDING COMPANIES, INC.

 

 

 

By:

  

      Name:   
      Title:   

AGREED TO AND ACCEPTED BY:

 

 

 

Signature:

  


 

 

 
Name:   
     
Address:   
     

9




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COMSTOCK HOMEBUILDING COMPANIES, INC. INDEMNIFICATION AGREEMENT

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Exhibit 10.11


PROMISSORY NOTE

$                                             , 2004

        1.     General .    For value received,                         , a Virginia corporation (the " Payor "), hereby promises to pay to the order of                        , an individual with the primary address of                        or his assigns (the " Payee "), the principal amount of $                        plus all accrued and unpaid interest as set forth herein. All payments hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender therein for the payment of public and private debts. Interest on the unpaid balance of the principal amount of this Promissory Note shall accrue from and after the date hereof at the rate of 3.0% per annum (compounded on a calendar quarter basis) (the " Rate "). The principal of, and interest on, this Promissory Note shall be payable by wire transfer of immediately available funds to the account of the Payee. All payments, including any prepayments pursuant to Section 2 hereof, shall be applied first to costs of collection, if any, then to accrued and unpaid interest, and thereafter to principal. The principal amount herein plus all accrued and unpaid interest thereon shall be paid by Payor to Payee on the one-year anniversary of this Promissory Note (the " Maturity Date ").

        2.     Prepayment .    Prepayment of principal and interest may be made at any time without penalty.

        3.     Defaults .    

            3.1     Definitions .    In each case of the happening of the following events (each of which is an " Event of Default "):

then, upon each and every such Event of Default and at any time thereafter during the continuance of such Event of Default, at the election of Payee, this Promissory Note shall immediately become due and payable, both as to principal and interest (including any deferred interest and any accrued and unpaid interest), without presentment, demand, or protest, all of which are hereby expressly waived,


anything contained herein to the contrary notwithstanding (except in the case of an Event of Default under paragraphs (b) or (c) of this Section 3.1 , in which event such indebtedness shall automatically become due and payable).

            3.2     Remedies on Default, Etc .    In case any one or more Events of Default shall occur and be continuing and acceleration of this Promissory Note shall have occurred, the Payee may, inter alia , proceed to protect and enforce its rights by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained in this Promissory Note, or for an injunction against a violation of any of the terms hereof or in and of the exercise of any power granted hereby or by law. No right conferred upon the Payee by this Promissory Note shall be exclusive of any other right referred to herein or now or hereafter available at law, in equity, by statute or otherwise.

        4.     Replacement of Note .    Upon receipt by the Payor of evidence satisfactory to it of the loss, theft, destruction, or mutilation of this Promissory Note and (in the case of loss, theft or destruction) of an indemnity reasonably satisfactory to it, and upon surrender and cancellation of this Promissory Note, if mutilated, the Payor will deliver a new promissory note of like tenor in lieu of this Promissory Note. Any note delivered in accordance with the provisions of this Section 4 shall be dated as of the date of this Promissory Note.

        5.     Extension of Maturity .    Should the principal of or interest on this Promissory Note become due and payable on other than a business day, such payment date shall be extended to the next succeeding business day, and, in the case of principal, interest shall be payable thereon at the Rate during such extension. For the purposes of the preceding sentence, a business day shall be any day that is not a Saturday, Sunday, or legal holiday in the Commonwealth of Virginia.

        6.     Attorneys' and Collection Fees .    Should the indebtedness evidenced by this Promissory Note or any part hereof be collected at law or in equity or in bankruptcy, receivership or other court proceedings, the Payor agrees to pay, in addition to principal and interest due and payable hereon, all costs of collection, including reasonable attorneys' fees and expenses, incurred by the Payee in collecting or enforcing this Promissory Note.

        7.     Waivers .    

            7.1     Waivers by Payor .    The Payor hereby waives presentment, demand for payment, notice of dishonor, notice of protest and all other notices or demands in connection with the delivery, acceptance, performance or default of this Promissory Note.

            7.2     Actions of Payee not a Waiver .    No delay by the Payee in exercising any power or right hereunder shall operate as a waiver of any power or right, nor shall any single or partial exercise of any power or right preclude other or further exercise thereof, or the exercise thereof, or the exercise of any other power or right hereunder or otherwise; and no waiver whatsoever or modification of the terms hereof shall be valid unless set forth in writing by the Payee and then only to the extent set forth therein.

        8.     Assignment .    This Promissory Note may not be assigned by Payor without the written consent of Payee; provided , however , that no such consent shall be required for an assignment of this Promissory Note by the Payor to [Comstock Holding Company, Inc., a Virginia corporation][Comstock Homebuilding Companies, Inc., a Delaware corporation] if such assignment is made in connection with a merger between the Payor and [Comstock Holding Company, Inc.][Comstock Homebuilding Companies, Inc.].

        9.     Amendments and Waivers .    No provision of this Promissory Note may be amended or waived without the express written consent of both the Payor and the Payee.

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        10.     Governing Law .    This Promissory Note is made and delivered in, and shall be governed by and construed in accordance with the laws of, the Commonwealth of Virginia (without giving effect to principles of conflicts of laws of the Commonwealth of Virginia or any other state). Each of Payor and Payee hereby irrevocably submits to the jurisdiction of any state or federal court sitting in the Commonwealth of Virginia for purposes of any controversy, claim or dispute arising out of or related to this Promissory Note and hereby waives any defense of an inconvenient forum and any right of jurisdiction on account of the place of residence or domicile.

        IN WITNESS WHEREOF, the Payor has duly executed this Promissory Note as of the date first written above.

    By:  
    Name:  
    Title:  

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Exhibit 10.12


COMSTOCK HOMEBUILDING COMPANIES, INC.

2004 LONG-TERM INCENTIVE COMPENSATION PLAN


COMSTOCK HOMEBUILDING COMPANIES, INC.

2004 LONG-TERM INCENTIVE COMPENSATION PLAN

1. Purpose   1
2. Definitions   1
3. Administration   6
  (a) Authority of the Committee   6
  (b) Manner of Exercise of Committee Authority   6
  (c) Limitation of Liability   7
4. Shares Subject to Plan   7
  (a) Limitation on Overall Number of Shares Available for Grant Under Plan   7
  (b) Application of Limitation to Grants of Award   7
  (c) Availability of Shares Not Delivered under Awards and Adjustments to Limits   7
5. Eligibility; Per-Person Award Limitations   8
6. Specific Terms of Awards   9
  (a) General   9
  (b) Options   9
  (c) Stock Appreciation Rights   10
  (d) Restricted Stock Awards   11
  (e) Deferred Stock Award   12
  (f) Bonus Stock and Awards in Lieu of Obligations   13
  (g) Dividend Equivalents   13
  (h) Performance Awards   13
  (i) Other Stock-Based Awards   13
7. Certain Provisions Applicable to Awards   14
  (a) Stand-Alone, Additional, Tandem, and Substitute Awards   14
  (b) Term of Awards   14
  (c) Form and Timing of Payment Under Awards; Deferrals   14
  (d) Exemptions from Section 16(b) Liability   15
8. Code Section 162(m) Provisions   15
  (a) Covered Employees   15
  (b) Performance Criteria   15
  (c) Performance Period; Timing for Establishing Performance Goals   16
  (d) Adjustments   16
  (e) Committee Certification   16
9. Change in Control   16
  (a) Effect of Change in Control   16
  (b) Definition of Change in Control   17
10. General Provisions   18
  (a) Compliance With Legal and Other Requirements   19
  (b) Limits on Transferability; Beneficiaries   19
  (c) Adjustments   19
  (d) Taxes   20
  (e) Changes to the Plan and Awards   21
  (f) Limitation on Rights Conferred Under Plan   21
  (g) Unfunded Status of Awards; Creation of Trusts   21
  (h) Nonexclusivity of the Plan   22
  (i) Payments in the Event of Forfeitures; Fractional Shares   22
  (j) Governing Law   22
  (k) Non-U.S. Laws   22
  (l) Plan Effective Date and Shareholder Approval; Termination of Plan   22

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COMSTOCK HOMEBUILDING COMPANIES, INC.
2004 LONG-TERM INCENTIVE COMPENSATION PLAN

        1.     Purpose.     The purpose of this 2004 LONG-TERM INCENTIVE COMPENSATION PLAN (the "Plan") is to assist Comstock Homebuilding Companies, Inc., a Delaware corporation and its Related Entities (as hereinafter defined) in attracting, motivating, retaining and rewarding high-quality executives and other employees, officers, directors, consultants and other persons who provide services to the Company or its Related Entities by enabling such persons to acquire or increase a proprietary interest in the Company in order to strengthen the mutuality of interests between such persons and the Company's shareholders, and providing such persons with long term performance incentives to expend their maximum efforts in the creation of shareholder value.

        2.     Definitions.     For purposes of the Plan, the following terms shall be defined as set forth below, in addition to such terms defined in Section 1 hereof.


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3


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        3.     Administration.     

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        4.     Shares Subject to Plan.     

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        5.     Eligibility; Per-Person Award Limitations.     Awards may be granted under the Plan only to Eligible Persons. Subject to adjustment as provided in Section 10(c), in any 12-month period during any part of which the Plan is in effect, no Participant may be granted (i) Options or Stock Appreciation Rights with respect to more than 150,000 Shares or (ii) Restricted Stock, Deferred Stock, Performance Shares and/or Other Stock-Based Awards with respect to more than 150,000 Shares. In addition, the maximum dollar value payable to any one Participant with respect to any 12-month Performance Period with respect to Performance Units is $250,000 multiplied by the number of full years in the Performance Period.

        6.     Specific Terms of Awards.     

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8


9


10


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        7.     Certain Provisions Applicable to Awards.     

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        8.     Code Section 162(m) Provisions.     

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        9.     Change in Control.     

14


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        10.     General Provisions.     

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Exhibit 10.13

COMSTOCK HOMEBUILDING COMPANIES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR
[insert name of optionee here]

Agreement

        1.     Grant of Option.     Comstock Homebuilding Companies, Inc. (the "Company") hereby grants, as of [    ] ("Date of Grant"), to [    ] (the "Optionee") an option (the "Option") to purchase up to [    ] shares of the Company's Class A Common Stock, $.01 par value per share (the "Shares"), at an exercise price per share equal to $[    ] (the "Exercise Price"). The Option shall be subject to the terms and conditions set forth herein. The Option was issued pursuant to the Company's 2004 Long-Term Incentive Compensation Plan (the "Plan"), which is incorporated herein for all purposes. The Option is a Non-Qualified Stock Option, and not an Incentive Stock Option. The Optionee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all of the terms and conditions hereof and thereof and all applicable laws and regulations.

        2.     Definitions.     Unless otherwise provided herein, terms used herein that are defined in the Plan and not defined herein shall have the meanings attributed thereto in the Plan.

        3.     Exercise Schedule.     Except as otherwise provided in Sections 6 or 9 of this Agreement, or in the Plan, the Option is exercisable in installments as provided below, which shall be cumulative. To the extent that the Option has become exercisable with respect to a percentage of Shares as provided below, the Option may thereafter be exercised by the Optionee, in whole or in part, at any time or from time to time prior to the expiration of the Option as provided herein. The following table indicates each date (the "Vesting Date") upon which the Optionee shall be entitled to exercise the Option with respect to the percentage of Shares granted as indicated beside the date, provided that the Continuous Service of the Optionee continues through and on the applicable Vesting Date:

Percentage of Shares

  Vesting Date

  

 

 

  

 

 

  

 

 

        Except as otherwise specifically provided herein, there shall be no proportionate or partial vesting in the periods prior to each Vesting Date, and all vesting shall occur only on the appropriate Vesting Date. Upon the termination of the Optionee's Continuous Service with the Company and its Related Entities, any unvested portion of the Option shall terminate and be null and void.

        4.     Method of Exercise.     The vested portion of this Option shall be exercisable in whole or in part in accordance with the exercise schedule set forth in Section 3 hereof by written notice which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as to the holder's investment intent with respect to such Shares as may be required by the Company pursuant to the provisions of the Plan. Such written notice shall be signed by the Optionee and shall be delivered in person or by certified mail to the Secretary of the Company. The written notice shall be accompanied by payment of the Exercise Price. This Option shall be deemed to be exercised after both (a) receipt by the Company of such written notice accompanied by the Exercise Price and (b) arrangements that are satisfactory to the Committee in its sole discretion have been made for Optionee's payment to the Company of the amount, if any, that is necessary to be withheld in accordance with applicable Federal or state withholding requirements. No Shares will be issued pursuant to the Option unless and until such issuance and such exercise shall comply with all relevant provisions of applicable law, including the requirements of any stock exchange upon which the Shares then may be traded.



        5.     Method of Payment.     Payment of the Exercise Price shall be by any of the following, or a combination thereof, at the election of the Optionee: (a) cash, (b) check, (c) with Shares that have been held by the Optionee for at least 6 months (or such other Shares as the Company determines will not cause the Company to recognize for financial accounting purposes a charge for compensation expense), (d) pursuant to a "cashless exercise" procedure, by delivery of a properly executed exercise notice together with such other documentation, and subject to such guidelines, as the Committee shall require to effect an exercise of the Option and delivery to the Company by a licensed broker acceptable to the Company of proceeds from the sale of Shares or a margin loan sufficient to pay the Exercise Price and any applicable income or employment taxes, or (e) such other consideration or in such other manner as may be determined by the Committee in its absolute discretion.

        6.     Termination of Option.     


        7.     Transferability.     Unless otherwise determined by the Committee, the Option granted hereby is not transferable otherwise than by will or under the applicable laws of descent and distribution, and during the lifetime of the Optionee the Option shall be exercisable only by the Optionee, or the Optionee's guardian or legal representative. In addition, the Option shall not be assigned, negotiated, pledged or hypothecated in any way (whether by operation of law or otherwise), and the Option shall not be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, negotiate, pledge or hypothecate the Option, or in the event of any levy upon the Option by reason of any execution, attachment or similar process contrary to the provisions hereof, the Option shall immediately become null and void. The terms of this Option shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee.

        8.     No Rights of Stockholders.     Neither the Optionee nor any personal representative (or beneficiary) shall be, or shall have any of the rights and privileges of, a stockholder of the Company with respect to any shares of Stock purchasable or issuable upon the exercise of the Option, in whole or in part, prior to the date of exercise of the Option.

        9.     Acceleration of Exercisability of Option.     

        10.     No Right to Continued Employment.     Neither the Option nor this Agreement shall confer upon the Optionee any right to continued employment or service with the Company.

        11.     Law Governing.     This Agreement shall be governed in accordance with and governed by the internal laws of the State of Delaware.

        12.     Interpretation/Provisions of Plan Control.     This Agreement is subject to all the terms, conditions and provisions of the Plan, including, without limitation, the amendment provisions thereof, and to such rules, regulations and interpretations relating to the Plan adopted by the Committee as may be in effect from time to time. If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and this Agreement shall be deemed to be modified accordingly. The Optionee accepts the Option subject to all the terms and provisions of the Plan and this Agreement. The undersigned Optionee hereby accepts as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Plan and this Agreement, unless shown to have been made in an arbitrary and capricious manner.

        13.     Notices.     Any notice under this Agreement shall be in writing and shall be deemed to have been duly given when delivered personally or when deposited in the United States mail, registered, postage prepaid, and addressed, in the case of the Company, to the Company's Secretary at [    ], or if the Company should move its principal office, to such principal office, and, in the case of the Optionee, to the Optionee's last permanent address as shown on the Company's records, subject to the right of either party to designate some other address at any time hereafter in a notice satisfying the requirements of this Section.

        14.     Tax Consequences.     Set forth below is a brief summary as of the date of this Option Agreement of some of the federal tax consequences of exercise of this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.



         IN WITNESS WHEREOF , the undersigned have executed this Agreement as of the [    ] day of [                    ], [    ].

    COMPANY:

 

 

COMSTOCK HOMEBUILDING COMPANIES, INC.,
a Delaware Corporation

 

 

By:

  

      [                    ]

        The Optionee acknowledges receipt of a copy of the Plan and represents that he or she has reviewed the provisions of the Plan and this Option Agreement in their entirety, is familiar with and understands their terms and provisions, and hereby accepts this Option subject to all of the terms and provisions of the Plan and the Option Agreement. The Optionee further represents that he or she has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement.


Dated:

  


 

OPTIONEE:

 

 

 

By:

  

        [                    ]



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Exhibit 10.14


COMSTOCK HOMEBUILDING COMPANIES, INC.



2004 EMPLOYEE STOCK PURCHASE PLAN



COMSTOCK HOMEBUILDING COMPANIES, INC.

2004 Employee Stock Purchase Plan

1.   Purpose   1
2.   Definitions   1
3.   Eligibility   3
      (a)   First Offering Date   3
      (b)   Subsequent Offering Dates   3
4.   Offering Periods   3
      (a)   In General   3
      (b)   Automatic Reset of Offering Period   3
      (c)   Changes by Committee   4
5.   Participation   3
      (a)   Entry Dates   4
      (b)   Special Rule for First Offering Date   4
6.   Plan Contributions   4
      (a)   Contribution by Payroll Deduction   4
      (b)   Payroll Deduction Election on Enrollment Agreement   4
      (c)   Commencement of Payroll Deduction   4
      (d)   Automatic Continuation of Payroll Deductions   5
      (e)   Change of Payroll Deduction Election   5
      (f)   Automatic Changes in Payroll Deduction   5
      (g)   Special Rule for Initial Offering Period   5
7.   Grant of Option   6
      (a)   Shares of Common Stock Subject to Option   6
      (b)   Exercise Price   6
      (c)   Fair Market Value   7
      (d)   Limitation on Option that may be Granted   7
      (e)   No Rights as Shareholder   7
8.   Exercise of Options 7    
      (a)   Automatic Exercise 7    
      (b)   Carryover of Excess Contributions   8
9.   Issuance of Shares   8
      (a)   Delivery of Shares   8
      (b)   Registration of Shares   8
      (c)   Compliance with Applicble Laws   8
      (d)   Withholding   8
10.   Participant Accounts   8
      (a)   Bookkeeping Accounts Maintained   8
      (b)   Participant Account Statements   8
      (c)   Withdrawal of Account Balance Following Exercise Date   9
11.   Designation of Beneficiary   9
      (a)   Designation   9
      (b)   Change of Designation   9
12.   Transferability   9
13.   Withdrawal; Termination of Employment   9
      (a)   Withdrawal   9
      (b)   Effect of Withdrawal on Subsequent Participation   10
      (c)   Termination of Employment   10
14.   Common Stock Available under the Plan   10
      (a)   Number of Shares   10
      (b)   Adjustments Upon Changes in Capitalization; Corporate Transactions   10
               

15.   Administration   11
      (a)   Committee   11
      (b)   Requirements of Exchange Act 11    
16.   Amendment, Suspension, and Termination of the Plan   11
      (a)   Amendment of the Plan   12
      (b)   Suspension of the Plan   12
      (c)   Termination of the Plan   12
17.   Notices   12
18.   Expenses of the Plan   12
19.   No Employment Rights   12
20.   Applicable Law   13
21.   Additional Restrictions of Rule 16b-3   13
22.   Effective Date   13


COMSTOCK HOMEBUILDING COMPANIES, INC.



2004 Employee Stock Purchase Plan

        1.     Purpose . The purpose of the Plan is to provide an incentive for present and future employees of the Company and any Designated Subsidiary to acquire a proprietary interest (or increase an existing proprietary interest) in the Company through the purchase of Common Stock. It is the Company's intention that the Plan qualify as an "employee stock purchase plan" under Section 423 of the Code. Accordingly, the provisions of the Plan shall be administered, interpreted and construed in a manner consistent with the requirements of that section of the Code.

        2.         Definitions .


        3.     Eligibility .

        4.     Offering Periods .

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        5.     Participation .

        6.     Plan Contributions .

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        7.     Grant of Option .

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        8.     Exercise of Options .

        9.     Issuance of Shares .

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        10.     Participant Accounts .

        11.     Designation of Beneficiary .

        12.     Transferability . Neither Plan Contributions credited to a Participant's account nor any rights to exercise any option or receive shares of Common Stock under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will or the laws of descent and distribution, or as provided in Section 11). Any attempted assignment, transfer, pledge or other distribution shall be without effect, except that the Company may treat such act as an election to withdraw in accordance with Section 13(a).

        13.     Withdrawal; Termination of Employment .

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        14.     Common Stock Available under the Plan .

        (b)     Adjustments Upon Changes in Capitalization; Corporate Transactions .

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        15. Administration .

        16.     Amendment, Suspension, and Termination of the Plan .

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        In the event that the Plan terminates under circumstances described in Section 16(c)(i) above, reserved shares remaining as of the termination date shall be sold to Participants on a pro rata basis, based on the relative value of their cash account balances in the Plan as of the termination date.

        17.     Notices . All notices or other communications by a Participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.

        18.     Expenses of the Plan . All costs and expenses incurred in administering the Plan shall be paid by the Company, except that any stamp duties or transfer taxes applicable to participation in the Plan may be charged to the account of such Participant by the Company.

        19.     No Employment Rights . The Plan does not, directly or indirectly, create any right for the benefit of any employee or class of employees to purchase any shares under the Plan, or create in any employee or class of employees any right with respect to continuation of employment by the Company or any Subsidiary, and it shall not be deemed to interfere in any way with the right of the Company or any Subsidiary to terminate, or otherwise modify, an employee's employment at any time.

        20.     Applicable Law . The internal laws of the State of Delaware shall govern all matters relating to this Plan except to the extent (if any) superseded by the laws of the United States.

        21.     Additional Restrictions of Rule 16b-3 . The terms and conditions of options granted hereunder to, and the purchase of shares by, persons subject to Section 16 of the Exchange Act shall comply with the applicable provisions of Rule 16b-3. This Plan shall be deemed to contain, and such options shall contain, and the shares issued upon exercise thereof shall be subject to, such additional conditions and

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restrictions as may be required by Rule 16b-3 to qualify for the maximum exemption from Section 16 of the Exchange Act with respect to Plan transactions.

        22.     Effective Date . Subject to adoption of the Plan by the Board and approval of the Plan by the shareholders of the Company, the Plan shall become effective on the First Offering Date. The Board shall submit the Plan to the shareholders of the Company for approval within twelve months after the date the Plan is adopted by the Board.

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2004 EMPLOYEE STOCK PURCHASE PLAN
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2004 Employee Stock Purchase Plan

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Exhibit 10.16


TAX INDEMNIFICATION AGREEMENT

        TAX INDEMNIFICATION AGREEMENT, dated as of            , 2004 (the "Agreement"), among Sunset Investment Corporation, a Virginia corporation (the "Company"), Comstock Homebuilding Companies, Inc., a Delaware corporation (the "Parent") and Christopher Clemente ("Stockholder").

        A. The Company has been an "S corporation" (as defined in section 1361 (a) (1) of the Code (as hereinafter defined)) for federal tax purposes since inception.

        B. The Company and the Stockholder plan to merge the Company with and into Comstock Holding Company, Inc. ("CHCI") prior to the closing of the Public Offering (as hereinafter defined).

        C. Immediately subsequent to the merger of the Company with and into CHCI, CHCI will be merged with and into Parent on the Termination Date (as hereinafter defined).

        D. Parent, the Company and the Stockholder desire to address certain matters among themselves in respect of the allocation of taxable income and liability for taxes.

        E. Parent, the Company and the Stockholder wish to provide for the termination of this Agreement such that it has no effect should the Public Offering not close.

        NOW, THEREFORE, in consideration of the foregoing premises and the covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:


ARTICLE I

DEFINITIONS

         1.1.      DEFINITIONS.     

        The following terms as used herein have the following meanings:

        "Adjustment Amount" means the net increase in taxable income of one or more of the Stockholders, the Company, CHCI or Parent based on a Final Determination and that gives rise to a payment pursuant to Section 3.3 or 3.4 hereof.

        "Affected Stockholder" means a Stockholder whose tax returns are adjusted in a manner which gives rise to an obligation of the Company pursuant to Section 3.3 hereof.

        "Affiliated Companies" means CHCI, Comstock Homes, Inc. and Comstock Service Corp., Inc., each a Virginia corporation affiliated with the Company through common ownership by Parent.

        "Closing Date" means the date on which the Public Offering closes.

        "Code" means the Internal Revenue Code of 1986, as amended.

        "C Short Year" means that portion of Parent's year beginning on the Termination Date.

        "C Taxable Year" means any taxable year (or portion thereof) of Parent or CHCI during which the Parent or CHCI is a C corporation for federal income tax purposes, including the C Short Year.

        "Final Determination" means the final resolution of any income or franchise tax liability (excluding all related interest and penalties) for a taxable period. A Final Determination shall result from the first to occur of:


        "Public Offering" means the initial offering of shares of Common Stock, $0.01 par value per share, of Parent pursuant to the Registration Statement on Form S-1 originally filed by the Parent with the Securities and Exchange Commission on August 13, 2004.

        "S Short Year" means that portion of the Company's S Termination Year beginning on the first day of such taxable year and ending on the day immediately preceding the Termination Date.

        "S Taxable Year" means any taxable year (or portion thereof) of the Company during which the Company was an S corporation, including the S Short Year.

        "S Termination Year" means the taxable year of the Company that includes the Termination Date.

        "Taxing Authority" means the Internal Revenue Service or any comparable state or foreign taxing authority.

        "Tax Benefit" means any amount by which the tax liability (including all related interest or penalties) of a Stockholder, Parent or CHCI, as applicable, in any taxable year is actually reduced by reason of claiming, on a tax return for such year, a loss, deduction or credit for tax purposes arising from the Company being determined to have been a C corporation or an Adjustment Amount in respect of which a payment was made pursuant to Section 3.3 or 3.4 after taking into account all other losses, deductions, credits or other tax attributes available to such Stockholder, Parent or the Company, as applicable.

        "Tax Detriment" means any amount by which the tax liability (including all related interest or penalties) of a Stockholder, Parent or CHCI, as applicable, in any taxable year is actually increased by reason of an Adjustment Amount, on a tax return for such year, in respect of which a payment was made pursuant to Section 3.3 or 3.4 after taking into account all other items of income, gain, loss, deductions or other tax attributes of such Stockholder, Parent or CHCI, as applicable.

        "Termination Date" means the date of the merger between the Company and CHCI.

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ARTICLE II

TERMINATION OF S CORPORATION STATUS AND ALLOCATION OF INCOME

         2.1.      TERMINATION OF S CORPORATION STATUS.     

        The Company and the Stockholder shall take the steps reasonably necessary to cause the Company to merge into CHCI at least one day prior to the Closing Date.

         2.2.      ALLOCATION ELECTION.     

        Parent will elect to file a consolidated federal income tax return with CHCI for the taxable year beginning on the Termination Date in accordance with Treas. Reg. Section 1.1502-75(a) and the Company shall consent to such election as required by Treas. Reg. Section 1.1502-75(b).


ARTICLE III

OBLIGATIONS

         3.1.      LIABILITY FOR TAXES INCURRED BY STOCKHOLDER DURING THE S SHORT YEAR.     

        Each Stockholder shall (a) duly include, in his or its own federal and state income tax returns, all items of income, gain, loss, deduction or credit attributable to the S Short Year in a manner consistent with the Form 1120S and the schedules thereto (and the corresponding state income or franchise tax forms and schedules) to be filed by the Company with respect to such period, (b) file such returns no later than the due date (including extensions, if any) for filing such returns, and (c) pay any and all taxes required to be paid for such Stockholder's taxable year that includes the S Short Year.

         3.2.      LIABILITY FOR TAXES INCURRED BY THE COMPANY DURING THE S SHORT YEAR AND THE C SHORT YEAR.     

        Parent shall (a) be responsible for and effect the filing of all federal and state income or franchise tax returns for the Company with respect to the S Short Year, and for CHCI with respect to the C Short Tax Year (b) accurately prepare and timely file such returns, and (c) pay any and all taxes required to be paid by CHCI for the C Short Tax Year.

         3.3.      COMPANY'S INDEMNIFICATION OF STOCKHOLDER FOR TAX LIABILITIES.     

        In the event of an adjustment to one or more tax returns of the Company for an S Taxable Year based on a Final Determination that results in a net increase in taxable income of a Stockholder and a corresponding adjustment to one or more tax returns of Parent or CHCI, as applicable, for a C Taxable Year that results in a Tax Benefit to Parent, Parent shall pay to any Affected Stockholder an amount equal to the Affected Stockholder's Tax Detriment (including all related interests and penalties); provided, however, the total amount due under this Section 3.3 shall not exceed the Tax Benefit received by Parent that is attributable to the relevant adjustment. Any amount payable under this Section 3.3 shall be paid to the Affected Stockholders in the year in which any Tax Benefit is realized. Upon notification from the Affected Stockholder that a payment is due by such Affected Stockholder to a Taxing Authority, Parent, as applicable, shall determine any Tax Benefit and pay the amount due hereunder to the Affected Stockholder within thirty (30) business days of such determination; provided, however, that if the Tax Benefit results in the creation of a net operating loss carryover, Parent shall make the payment hereunder to the Affected Stockholder thirty (30) business days after the utilization by Parent, in whole or in part, of such net operating loss carryover.

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         3.4.      STOCKHOLDER'S INDEMNIFICATION OF THE COMPANY FOR TAX LIABILITIES.     

         (a)    Adjustments to the Company's Taxable Income . In the event of an adjustment of one or more tax returns of Parent or CHCI, as the case may be, for a C Taxable Year based on a Final Determination which results in a net increase in taxable income of Parent or CHCI, as applicable, for a C Taxable Year and a corresponding adjustment to one or more tax returns of the Company for an S Taxable Year which results in a Tax Benefit to the Company or the Stockholder for the S Taxable Year, Stockholder agrees to contribute to the capital of Parent his pro rata share (based upon the relative amount of Company stock held by Stockholder during the relevant time period) of an amount equal to the Tax Detriment (including all related interest and penalties); provided, however, the total amount due from Stockholder under this Section 3.4(a) shall not exceed such Stockholder's Tax Benefit that is attributable to the relevant adjustment. The amount payable under this Section 3.4(a) shall be paid to Parent in the year in which the Tax Benefit is realized.

         (b)    Adjustments Attributable to the Company's S Status . If, based on a Final Determination, the Company is deemed to have been a C corporation for federal, state or local income or franchise tax purposes during any period in which it reported (or intends to report) its taxable income as an S corporation, Stockholder, subject to the limitations contained in Section 3.4(c), shall contribute to the capital of Parent his pro rata share (based upon the relative amount of Company stock held by such Stockholder during the relevant time period) of an amount equal to the taxes, interest and penalties incurred by the Company as a result of the Company being determined to have been a C corporation.

         (c)    Limit on Indemnification Amount . The payments required to be made by Stockholder to the Parent pursuant to Section 3.4(b) shall not exceed the sum of (i) Stockholder's net Tax Benefit resulting from the Company being determined to have been a C corporation and (ii) with respect to the Company and/or any of the Affiliated Companies, $750,000 in the aggregate.

         (d)    Time of Indemnification Payment . The Stockholder shall contribute to the capital of Parent any amounts calculated in accordance with Section 3.4(a) within 30 business days after the receipt of the refund from the appropriate Taxing Authority attributable to such adjustment. To the extent that any amounts payable pursuant to Section 3.4(c)(ii) exceed $250,000, the Stockholder may contribute these amounts to the capital of Parent in annual installments of $250,000 (or the remaining balance due, if less) until paid in full.

         3.5      GROSS UP FOR ADDITIONAL TAX.     

        In all events and to the extent not otherwise reimbursed, the Parent hereby agrees that if any payment pursuant to this Article III is deemed to be taxable income to Stockholder, the amount of such payment to the Stockholder shall be increased by an amount necessary to equal the Stockholder's additional Tax Detriment resulting from the receipt of a payment pursuant to this Article III related to such amount (including, without limitation, any taxes on such additional amounts) so that the net payment, after reduction for any Tax Detriment associated with its receipt, is equal to the amount of the Tax Detriment in respect of which such payment pursuant to this Article III is made; provided, however, that such additional amount shall not exceed the sum of (i) the Tax Benefit to the Parent from such payment under this Section 3.5 and (ii) the excess of any Tax Benefit of the Parent from the Adjustment Amount over the amount of the payments under Section 3.3.


ARTICLE IV

CONTESTS/COOPERATION

         4.1.      CONTESTS.     

        Whenever the Stockholder or Parent becomes aware of an issue that they or it believe could result in a Final Determination which could give rise to a payment or indemnification obligation under

4



Article III, the Stockholder or Parent (as the case may be) shall promptly give notice of the issue to the other parties hereto. The Stockholder and his representatives, at their expense, shall be entitled to participate in all conferences and meetings with or proceedings before the Internal Revenue Service or any other Taxing Authority with respect to the issue. The parties shall consult and cooperate with each other in the negotiation and settlement or litigation of any adjustment that may give rise to any payment or indemnification obligation under Article III. All decisions with respect to such negotiation and settlement or litigation shall be made by the parties after full, good faith consultation or pursuant to the dispute resolution provisions of Section 4.2.

         4.2.      DISPUTE RESOLUTION.     

        (a)   If the parties hereto are, after negotiation in good faith, unable to agree upon the appropriate application of the provisions of this Agreement, the controversy shall be settled by a "Big 4" (or equivalent) accounting firm, other than the independent public accountants for Parent or any of its affiliates, chosen by the Parent and both of Christopher Clemente and Gregory Benson (the "Accounting Firm"). The decision of the Accounting Firm with respect thereto shall be final, and Parent or the Stockholder, as applicable, shall pay any amounts due under this Agreement pursuant to such decision in accordance with the requirements of Sections 3.3 and 3.4 hereof. The applicable expenses of the Accounting Firm shall be borne equally by the Parent and the Stockholder unless the Accounting Firm specifies otherwise.

        (b)   In the event that the Stockholder or Parent receives notice, whether verbally or in writing, of any federal, state, local or foreign tax examination, claim, settlement, proposed adjustment or related matter that may affect in any way the liability of a Stockholder under this Agreement, such Stockholder or Parent, as applicable, shall within ten days notify the other parties hereto in writing thereof; provided, however, that any failure to give such notice shall not reduce a party's right to indemnification under this Agreement except to the extent of actual damage incurred by the other parties as a result of such failure. The party or parties who would be required to indemnify (the "Indemnifying Party") the other party or parties (the "Indemnified Party") shall be entitled in their reasonable discretion and at their sole expense to handle, control and compromise or settle the defense of any matter that may give rise to a liability under this Agreement; provided, however, that such Indemnifying Party from time to time provides assurances reasonably satisfactory to the Indemnified Party that (i) the Indemnifying Party is financially capable of pursuing such defense to its conclusion, and (ii) such defense is actually being pursued in a reasonable manner.

         4.3.      COOPERATION.     

        The parties shall make available to each other, as reasonably requested, and to any Taxing Authority all information, records or documents relating to any liability for taxes covered by this Agreement and shall preserve such information, records and documents until the expiration of any applicable statute of limitations or extensions thereof. The party requesting such information shall reimburse the other party for all reasonable out-of-pocket costs incurred in producing such information.

         4.4.      COSTS.     

        Except to the extent otherwise provided herein, each party shall bear his own costs in connection with this Agreement.

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ARTICLE V

MISCELLANEOUS

         5.1.      COUNTERPARTS AND FACSIMILES.     

        This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, but all of which counterparts collectively shall constitute a single instrument representing the agreement among the parties hereto. Transmission of facsimile copies of an executed counterpart of a signature page of this Agreement will have the same effect as delivery of the manually executed counterpart of this Agreement.

         5.2.      CONSTRUCTION OF TERMS.     

        Nothing herein expressed or implied is intended, or shall be construed, to confer upon or give any person, firm or corporation, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement.

         5.3.      GOVERNING LAW.     

        This Agreement and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the law of the Commonwealth of Virginia.

         5.4.      AMENDMENT AND MODIFICATION.     

        This Agreement may be amended, modified or supplemented only by a writing executed by all the parties hereto.

         5.5.      ASSIGNMENT.     

        Except by operation of law or in connection with the sale of all or substantially all the assets of a party, this Agreement shall not be assignable, in whole or in part, directly or indirectly, by the Stockholder without the written consent of the Company and Parent or by the Company or Parent without the written consent of both of Christopher Clemente and Gregory Benson. Any attempt to assign any rights or obligations arising under this Agreement without such consent shall be void. The provisions of this Agreement shall be binding upon and inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.

         5.6.      INTERPRETATION.     

        The title, article and section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties, and shall not in any way affect the meaning or interpretation of this Agreement.

         5.7.      SEVERABILITY.     

        In the event that any one or more of the provisions of this Agreement shall be held to be illegal, invalid or unenforceable in any respect, the same shall not in any respect affect the validity, legality or enforceability of the remainder of this Agreement, and the parties shall use their best efforts to replace such illegal, invalid or unenforceable provision with an enforceable provision approximating, to the extent possible, the original intent of the parties.

         5.8.      ENTIRE AGREEMENT.     

        This Agreement embodies the entire agreement and understanding of the parties hereto in respect to the subject matter contained herein. There are no representations, promises, warranties, covenants or undertakings other than those expressly set forth herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.

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         5.9.      FURTHER ASSURANCES.     

        Subject to the provisions of this Agreement, the parties shall acknowledge such other instruments and documents and take all other actions that may be reasonably required in order to effectuate the purposes of this Agreement.

         5.10.      WAIVERS, ETC.     

        No failure or delay on the part of any party in exercising any power or right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power preclude any other or further exercise thereof or the exercise of any other right or power. No waiver of any provision of this Agreement nor consent to any departure by the parties therefrom shall in any event be effective unless it shall be in writing, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given.

         5.11.      SET-OFF.     

        All payments to be made by Stockholder or by the Company or Parent under this Agreement shall be made without set-off, counterclaim or withholding, all of which are expressly waived.

         5.12.      CHANGE OF LAW.     

        If, due to any change in applicable law or regulations or the interpretation thereof by any court or other governing body having jurisdiction subsequent to the date of this Agreement, performance of any provision of this Agreement shall be impracticable or impossible, the parties shall use their best efforts to find an alternative means to achieve the same or substantially the same results as are contemplated by such provision.

         5.13.      NOTICES.     

        All notices under this Agreement shall be validly given if in writing and delivered personally or sent by registered mail, postage prepaid at the respective addresses set forth below

        If to CHCI or Parent, at:

        If to Stockholder, at:

or at such other address as any party may, from time to time, designate in a written notice given in a like manner. Notice given by mail shall be deemed delivered five calendar days after the date mailed.

         5.14.      TERMINATION OF AGREEMENT.     

        This Agreement shall terminate and be void, as if it never had been executed, if the Closing Date does not occur on or before March 31, 2005.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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        IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

    SUNSET INVESTMENT CORP

 

 

By


      Name:
Title:

 

 

COMSTOCK HOMEBUILDING COMPANIES, INC.

 

 

By


      Name:
Title:

 

 

STOCKHOLDER:

 

 


CHRISTOPHER CLEMENTE

8




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TAX INDEMNIFICATION AGREEMENT
ARTICLE I DEFINITIONS
ARTICLE II TERMINATION OF S CORPORATION STATUS AND ALLOCATION OF INCOME
ARTICLE III OBLIGATIONS
ARTICLE IV CONTESTS/COOPERATION
ARTICLE V MISCELLANEOUS

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Exhibit 10.17


EMPLOYMENT AGREEMENT

        This EMPLOYMENT AGREEMENT ("Agreement") is effective this            day of                        , 2004, between Comstock Homebuilding Companies, Inc. (the "Employer") and Christopher Clemente (the "Executive").

WITNESSETH

        WHEREAS, the Board of Directors of the Employer (the "Board") wishes to employ the Executive on the terms and conditions in this Agreement and in accordance with the policies established by the Employer for senior executive level employees; and

        WHEREAS, the Executive desires to accept such employment;

        NOW THEREFORE, in consideration of the promises and the mutual agreements herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:

1.     DEFINITIONS

        Those words and terms that have special meanings for purposes of this Agreement are specially defined through the use of parenthetical quotations and upper-lower case lettering. In addition, the following words and terms shall have the meanings set forth below for the purposes of this Agreement:


2


provided however , that any actions taken by the Employer to accommodate a disability of the Executive or pursuant to the Family and Medical Leave Act shall not be a "good reason" for purposes of this Agreement; and provided further that the continued employment of the Executive shall not constitute consent to, or a waiver of rights with respect to, any circumstance constituting Good Reason.

2.     EMPLOYMENT

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3.     COMPENSATION AND BENEFITS

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4.     SUPPORT AND EXPENSES

5.     TERMINATION

5


6


6.     CONFIDENTIALITY & NON-COMPETITION AGREEMENT

        The parties hereto have entered into a Confidentiality & Non-Competition Agreement dated                        , 2004, which may be amended by the parties from time to time without regard to this Agreement. The Confidentiality & Non-Competition Agreement contains provisions that are intended by the parties to survive and do survive termination or expiration of this Agreement.

7.     EXECUTIVE'S REPRESENTATIONS AND WARRANTIES

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8.     GENERAL PROVISIONS


    To the Employer:   Comstock Homebuilding Companies, Inc.
Employer Headquarters Address at time of Notice
        Attention: General Counsel

 

 

To the Executive:

 

Christopher Clemente
Home Address as shown in the records of the Employer at time of Notice

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the date and year first written above.

The Employer:   COMSTOCK HOMEBUILDING COMPANIES, INC.

 

 

By:

 

 
       
Bruce J. Labovitz
Chief Financial Officer

 

 

 

 

 

The Executive:

 

 

 

 
   
Christopher Clemente

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Schedule 2.2

Employer-Permitted Activities

        In connection with the Employment Agreement, effective                        , 2004, between the Employer and the Executive, the following shall be deemed specifically permitted and approved business activities within the purview of Section 2.2(ii) of the Employment Agreement:

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EMPLOYMENT AGREEMENT
Schedule 2.2 Employer-Permitted Activities

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Exhibit 10.18


EMPLOYMENT AGREEMENT

        This EMPLOYMENT AGREEMENT ("Agreement") is effective this            day of                        , 2004, between Comstock Homebuilding Companies, Inc. (the "Employer") and Gregory V. Benson (the "Executive").

WITNESSETH

        WHEREAS, the Board of Directors of the Employer (the "Board") wishes to employ the Executive on the terms and conditions in this Agreement and in accordance with the policies established by the Employer for senior executive level employees; and

        WHEREAS, the Executive desires to accept such employment;

        NOW THEREFORE, in consideration of the promises and the mutual agreements herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:

1.     DEFINITIONS

        Those words and terms that have special meanings for purposes of this Agreement are specially defined through the use of parenthetical quotations and upper-lower case lettering. In addition, the following words and terms shall have the meanings set forth below for the purposes of this Agreement:


2


provided however , that any actions taken by the Employer to accommodate a disability of the Executive or pursuant to the Family and Medical Leave Act shall not be a "good reason" for purposes of this Agreement; and provided further that the continued employment of the Executive shall not constitute consent to, or a waiver of rights with respect to, any circumstance constituting Good Reason.

2.     EMPLOYMENT

3


3.     COMPENSATION AND BENEFITS

4


4.     SUPPORT AND EXPENSES

5.     TERMINATION

5


6


6.     CONFIDENTIALITY & NON-COMPETITION AGREEMENT

        The parties hereto have entered into a Confidentiality & Non-Competition Agreement dated                        , 2004, which may be amended by the parties from time to time without regard to this Agreement. The Confidentiality & Non-Competition Agreement contains provisions that are intended by the parties to survive and do survive termination or expiration of this Agreement.

7.     EXECUTIVE'S REPRESENTATIONS AND WARRANTIES

7


8.     GENERAL PROVISIONS


    To the Employer:   Comstock Homebuilding Companies, Inc.
Employer Headquarters Address at time of Notice
        Attention: General Counsel

 

 

To the Executive:

 

Gregory V. Benson
Home Address as shown in the records of the Employer at time of Notice

8


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the date and year first written above.

The Employer:   COMSTOCK HOMEBUILDING COMPANIES, INC.

 

 

By:

 

 
       
Bruce J. Labovitz
Chief Financial Officer

 

 

 

 

 

The Executive:

 

 

 

 
   
Gregory V. Benson

9



Schedule 2.2

Employer-Permitted Activities

        In connection with the Employment Agreement, effective                        , 2004, between the Employer and the Executive, the following shall be deemed specifically permitted and approved business activities within the purview of Section 2.2(ii) of the Employment Agreement:

10




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EMPLOYMENT AGREEMENT
Schedule 2.2 Employer-Permitted Activities

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Exhibit 10.19

EMPLOYMENT AGREEMENT

        This EMPLOYMENT AGREEMENT ("Agreement") is effective this            day of                        , 2004, between Comstock Homebuilding Companies, Inc. (the "Employer") and Bruce J. Labovitz (the "Executive").

WITNESSETH

        WHEREAS, the Board of Directors of the Employer (the "Board") wishes to employ the Executive on the terms and conditions in this Agreement and in accordance with the policies established by the Employer for senior executive level employees; and

        WHEREAS, the Executive desires to accept such employment;

        NOW THEREFORE, in consideration of the promises and the mutual agreements herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:

         1.    DEFINITIONS     

        Those words and terms that have special meanings for purposes of this Agreement are specially defined through the use of parenthetical quotations and upper-lower case lettering. In addition, the following words and terms shall have the meanings set forth below for the purposes of this Agreement:


provided however , that any actions taken by the Employer to accommodate a disability of the Executive or pursuant to the Family and Medical Leave Act shall not be a "good reason" for purposes of this

2


Agreement; and provided further that the continued employment of the Executive shall not constitute consent to, or a waiver of rights with respect to, any circumstance constituting Good Reason.

         2.    EMPLOYMENT     

         2.1.    Position and Term.     The Employer hereby employs the Executive as Chief Financial Officer, reporting directly to the Chief Executive Officer, and the Executive hereby accepts said employment and agrees to render such services to the Employer, on the terms and conditions set forth in this Agreement. Unless extended as provided in this Section 2.1, or terminated in accordance with Section 5, this Agreement shall terminate three (3) years after the date first above-written; provided, however, that, while this Agreement is in effect, beginning one year following the date first above-written and continuing on each one year anniversary of the Agreement (the "Annual Renewal Date"), this Agreement shall be automatically extended for an additional one (1) year, unless the parties have re-negotiated the Agreement or one of the parties gives written notice of non-renewal in accordance with Section 8.2 hereof to the other party at least thirty (30) days prior to an Annual Renewal Date, in which event this Agreement shall continue in effect for the remaining term of the Agreement. Reference herein to the "Term" of this Agreement shall refer both to the initial term and any successive term, as the context requires. The parties expressly agree that designation of a term and renewal provisions in this Agreement does not in any way limit the right of the parties to terminate this Agreement at any time as hereinafter provided.

         3.    COMPENSATION AND BENEFITS     

3


         4.    SUPPORT AND EXPENSES     

4


         5.    TERMINATION     

5


6


         6.    CONFIDENTIALITY & NON-COMPETITION AGREEMENT     

        The parties hereto have entered into a Confidentiality & Non-Competition Agreement dated                        , 2004, which may be amended by the parties from time to time without regard to this Agreement. The Confidentiality & Non-Competition Agreement contains provisions that are intended by the parties to survive and do survive termination or expiration of this Agreement.

         7.    EXECUTIVE'S REPRESENTATIONS AND WARRANTIES     

         8.    GENERAL PROVISIONS     

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To the Employer:   Comstock Homebuilding Companies, Inc.
Employer Headquarters Address at time of Notice

 

 

Attention: General Counsel

To the Executive:

 

Bruce J. Labovitz
Home Address as shown in the records of the Employer at time of Notice

8


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the date and year first written above.


The Employer:

COMSTOCK HOMEBUILDING COMPANIES, INC.

 

By:

  

Christopher Clemente
Chief Executive Officer

The Executive:

  

Bruce J. Labovitz

9




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EMPLOYMENT AGREEMENT

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Exhibit 10.20


CONFIDENTIALITY AND NON-COMPETITION AGREEMENT

        This Agreement is between Christopher Clemente (hereafter "You") and Comstock Homebuilding Companies, Inc., its affiliates, successors, assigns, parents and subsidiaries (hereafter "the Company"), effective this    day of                        , 2004. You are entering into this Agreement based on the provision of consideration to You from the Company, including the grant of equity in the Company to You in connection with the Company's initial public offering (the "IPO Grant"), Your employment and continued employment with the Company, and such other benefits that You acknowledge to be sufficient consideration for this Agreement.

1.    NATURE OF AGREEMENT. You and the Company intend this Agreement to be an Agreement concerning confidentiality and non-competition/non-solicitation. This Agreement does not limit in any way the right of either You or the Company to terminate the employment relationship at any time. This Agreement contains obligations that survive termination of the employment relationship between You and the Company. You agree that neither the provisions set forth in this Agreement nor any other written or oral communications between the Company and You about the subject matter of this Agreement as of the date of this Agreement has created or is intended to create a contract of employment or a promise to provide any benefits. If You and the Company enter into or have entered into an Employment Agreement, this Agreement is to be read and applied consistently with that Agreement.

2.    DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:


3.    RETURN OF COMPANY PROPERTY. You agree that upon termination of Your employment with the Company for any reason, You will promptly deliver to the Company all property and materials in any form belonging to the Company, or relating to its business, including the property listed on Schedule A to this Agreement. Notwithstanding the foregoing, this provision shall be effective only with respect to Company property and obtained by you after the effective date of this Agreement.

4.    RESTRICTIONS.

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5.    REASONABLENESS OF RESTRICTIONS AND SEVERABILITY.

6.    INJUNCTIVE RELIEF AND REMEDIES.

4



7.    PUBLICATION OF THIS AGREEMENT TO SUBSEQUENT EMPLOYERS OR BUSINESS ASSOCIATES OF EMPLOYEE.

8.    MISCELLANEOUS.

5


By signing this Agreement You represent that You have read and understand this Agreement, You have had an opportunity to consult legal counsel concerning this Agreement and that You sign it voluntarily.


Comstock Homebuilding Companies, Inc.

 

Employee

 

 

 

 

 

By:

 

 

 

 

 

 


Bruce Labovitz
Chief Financial Officer

 


Christopher Clemente

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SCHEDULE A

COMPANY PROPERTY

        For purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Christopher Clemente dated                         , 2004, effective                        , 2004, Company Property shall include but not be limited to items that are important to the ongoing operations of the Company:

        Notwithstanding the foregoing, the Company Property shall not include (i) any items or materials that You obtained prior to the effective date of this Agreement and (ii) any list or information that also relates to the Permitted Activities .

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SCHEDULE B

CONFIDENTIAL INFORMATION

        For purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Christopher Clemente dated                         , 2004, effective                        , 2004, Confidential Information shall include but not be limited to the following information where it is not generally known to the public or in the home construction industry (including information conceived, discovered or developed by Employee while in the employ of the Company):

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CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
SCHEDULE A COMPANY PROPERTY
SCHEDULE B CONFIDENTIAL INFORMATION

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Exhibit 10.21

CONFIDENTIALITY AND NON-COMPETITION AGREEMENT

        This Agreement is between Gregory V. Benson (hereafter "You") and Comstock Homebuilding Companies, Inc., its affiliates, successors, assigns, parents and subsidiaries (hereafter "the Company"), effective this    day of                        , 2004. You are entering into this Agreement based on the provision of consideration to You from the Company, including the grant of equity in the Company to You in connection with the Company's initial public offering (the "IPO Grant"), Your employment and continued employment with the Company, and such other benefits that You acknowledge to be sufficient consideration for this Agreement.

1.    NATURE OF AGREEMENT. You and the Company intend this Agreement to be an Agreement concerning confidentiality and non-competition/non-solicitation. This Agreement does not limit in any way the right of either You or the Company to terminate the employment relationship at any time. This Agreement contains obligations that survive termination of the employment relationship between You and the Company. You agree that neither the provisions set forth in this Agreement nor any other written or oral communications between the Company and You about the subject matter of this Agreement as of the date of this Agreement has created or is intended to create a contract of employment or a promise to provide any benefits. If You and the Company enter into or have entered into an Employment Agreement, this Agreement is to be read and applied consistently with that Agreement.

2.    DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:


3.    RETURN OF COMPANY PROPERTY. You agree that upon termination of Your employment with the Company for any reason, You will promptly deliver to the Company all property and materials in any form belonging to the Company, or relating to its business, including the property listed on Schedule A to this Agreement. Notwithstanding the foregoing, this provision shall be effective only with respect to Company property and obtained by you after the effective date of this Agreement.

4.    RESTRICTIONS.


 

4.2.1

You will not disclose
Confidential Information to any person or entity without first obtaining the Company's consent, and will take reasonable precautions to prevent inadvertent disclosure of such Confidential Information . You agree to make reasonable efforts to ensure that persons working in any capacity for the Company, including without limitation employees, officers, directors, vendors, sub-contractors, attorneys, and agents, subsidiary or parent entities (and the employees, officers, directors, vendors, contractors, attorneys, and agents, thereof) are permitted access to Confidential Information on a strictly "need to know" basis. This prohibition against Your disclosure of Confidential Information includes, but is not limited to, disclosing the fact that any similarity exists between Confidential Information and information independently developed by another person or entity. You understand that the existence of such a similarity does not excuse You from honoring Your obligations under this Agreement.
     

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4.2.2

Except with respect to Your actions in connection with
Permitted Activities , You will not use any Confidential Information for Your personal benefit or for the benefit of any person or entity other than the Company. You will not use, copy or transfer Confidential Information other than as necessary in carrying out Your duties on behalf of the Company or in connection with Permitted Activities , without first obtaining the Company's written consent, and will take reasonable precautions to prevent inadvertent use, copying or transfer of Confidential Information . This prohibition against Your use, copying, or transfer of Confidential Information includes, but is not limited to, selling, licensing or otherwise exploiting, directly or indirectly, any products or services (including software in any form) which embody or are derived from Confidential Information , or exercising judgment in performing analysis based upon knowledge of Confidential Information . Without in any way limiting the generality of this subsection, You agree not to directly or indirectly circumvent or compete with the Company with regard to any Confidential Information .

 

4.2.3

You will not make any written use of or reference to the Company's name or trademarks (or any name under which the Company does business) for any marketing, public relations, advertising, display or other business purpose unrelated to the express business purposes and interests of the Company or make any use of the Company's facilities for any activity unrelated to the express business purposes and interests of the Company, without the prior written consent of the Company, which consent may be withheld or granted in the Company's sole and absolute discretion.

 

4.2.4

Notwithstanding the foregoing, it is understood that certain companies and entities that are active in real estate development activities (other than those relating to for-sale residential homebuilding) and that are owned and controlled by You are authorized to use the name Comstock, and it is agreed that the Company benefits from such dual use of the name "Comstock." Further, it is agreed that it is in the best interest of the Company for You to share Confidential Information with Comstock Partners, and its affiliated entities.

 

4.2.5

In the event that You receive a subpoena or order of a court, or other body having jurisdiction over a matter, in which You are compelled to produce any information relevant to the Company, whether confidential or not, You will immediately provide the Company with written notice of this subpoena or order so that the Company may timely move to quash if appropriate, at no cost to You. If the Company fails to take such action, this Section 4.2.5 shall be null and void and of no effect as it relates to the specific matter covered by the subject subpoena or court order.

 

4.2.6.

If a court decides that Section 4.2 or any of its restrictions is unenforceable for lack of reasonable temporal limitation and the Agreement or restriction(s) cannot otherwise be enforced, You and the Company agree that twenty-four (24) months shall be the temporal limitation relevant to the contested restriction; provided, however, that this Section 4.2.5 shall not apply to trade secrets protected without temporal limitation under applicable law.

 

4.3.1.

You will not solicit or provide
Conflicting Services except on behalf of or at the direction of the Company.
     

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4.3.2.

You will not solicit, perform or offer to perform any
Conflicting Services for a Business Partner .

 

4.3.3.

You will not request, induce, or attempt to induce any
Business Partner to terminate its relationship with the Company;

 

4.3.4

You will not attempt to hire, employ or associate in business with any person employed by the Company or who has left the employment of the Company within the preceding six (6) months and You will not make, extend or facilitate offers or promises of any potential employment or business association with such person, even if You did not initiate the discussion or seek out the contact.

5.    REASONABLENESS OF RESTRICTIONS AND SEVERABILITY.

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6.    INJUNCTIVE RELIEF AND REMEDIES.

7.    PUBLICATION OF THIS AGREEMENT TO SUBSEQUENT EMPLOYERS OR BUSINESS ASSOCIATES OF EMPLOYEE.

8.    MISCELLANEOUS.

5


By signing this Agreement You represent that You have read and understand this Agreement, You have had an opportunity to consult legal counsel concerning this Agreement and that You sign it voluntarily.


Comstock Homebuilding Companies, Inc.

 

Employee

 

 

 

 

 

By:

 

 

 

 
   
Bruce Labovitz
Chief Financial Officer
 
Gregory V. Benson

6



SCHEDULE A

COMPANY PROPERTY

        For purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Gregory V. Benson dated                         , 2004, effective                        , 2004, Company Property shall include but not be limited to items that are important to the ongoing operations of the Company:

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SCHEDULE B

CONFIDENTIAL INFORMATION

        For purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Gregory V. Benson dated                         , 2004, effective                        , 2004, Confidential Information shall include but not be limited to the following information where it is not generally known to the public or in the home construction industry (including information conceived, discovered or developed by Employee while in the employ of the Company):

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SCHEDULE A COMPANY PROPERTY
SCHEDULE B CONFIDENTIAL INFORMATION

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Exhibit 10.22

CONFIDENTIALITY AND NON-COMPETITION AGREEMENT

        This Agreement is between Bruce J. Labovitz (hereafter "You") and Comstock Homebuilding Companies, Inc., its affiliates, successors, assigns, parents and subsidiaries (hereafter "the Company"), effective this    day of                        , 2004. You are entering into this Agreement based on consideration to You from the Company, including the grant of equity in the Company to You, Your employment and continued employment with the Company, and such other benefits that You acknowledge to be sufficient consideration for this Agreement.

         1.    NATURE OF AGREEMENT.     You and the Company intend this Agreement to be an Agreement concerning confidentiality and non-competition/non-solicitation. This Agreement does not limit in any way the right of either You or the Company to terminate the employment relationship at any time. This Agreement contains obligations that survive termination of the employment relationship between You and the Company. You agree that neither the provisions set forth in this Agreement nor any other written or oral communications between the Company and You about the subject matter of this Agreement as of the date of this Agreement has created or is intended to create a contract of employment or a promise to provide any benefits. If You and the Company enter into or have entered into an Employment Agreement, this Agreement is to be read and applied consistently with that Agreement.

         2.    DEFINITIONS.     As used in this Agreement, the following terms shall have the following meanings:

         3.    RETURN OF COMPANY PROPERTY.     You agree that at any time requested by the Company and/or at termination of Your employment with the Company for any reason, You will



promptly deliver to the Company all property and materials in any form belonging to or relating to the Company, its business and the business of any Business Partner , including but not limited to, the property listed on Schedule A to this Agreement. You agree not to download or keep copies of company property in any hard or soft format. You agree that You have no ownership or interest in any Company property.

         4.    RESTRICTIONS.     

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         5.    REASONABLENESS OF RESTRICTIONS AND SEVERABILITY.     

3



         6.    INJUNCTIVE RELIEF AND REMEDIES.     

         7.    PUBLICATION OF THIS AGREEMENT TO SUBSEQUENT EMPLOYERS OR BUSINESS ASSOCIATES OF EMPLOYEE.     

         8.    MISCELLANEOUS.     

4


By signing this Agreement You represent that You have read and understand this Agreement, You have had an opportunity to consult legal counsel concerning this Agreement and that You sign it voluntarily.


Comstock Homebuilding Companies, Inc.

 

Employee

By:

 

 

 
 
 
  [NAME & TITLE]   Bruce J. Labovitz

5


SCHEDULE A

COMPANY PROPERTY

        For purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Bruce J. Labovitz dated                         , 2004, effective                        , 2004, Company Property shall include but not be limited to:



SCHEDULE B

CONFIDENTIAL INFORMATION

        For purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Bruce J. Labovitz dated                         , 2004, effective                        , 2004, Confidential Information shall include but not be limited to the following information where it is not generally known to the public or in the home construction industry (including information conceived, discovered or developed by Employee):




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Exhibit 10.23


PERPETUAL TRADEMARK LICENSE

         WHEREAS , Christopher Clemente, an individual resident of the Commonwealth of Virginia (hereinafter "Licensor"), is the owner of the Mark "COMSTOCK" (the "Mark") used in and associated with the offering of construction services, namely, planning, laying out and custom construction of residential and commercial real estate, which has been continuously used in this manner since at least as early as December 31, 1991 and owns a federal application for registration for the Mark for the aforesaid goods and services, U.S. Trademark Application Serial No. 78/416,396 which registration is presently pending at the U.S. Patent and Trademark Office; and

         WHEREAS, Comstock Homebuilding Companies, Inc., a Delaware corporation with a principal place of business located at 11465 Sunset Hills Road, Suite 510, Reston, Virginia 20190 (hereinafter "Licensee"), desires and Licensor is willing to grant Licensee a license to use the Mark for the following goods and services: Residential real estate development, marketing and construction services including the sale of single family, townhome and condominium products ("Goods and Services").

         WHEREAS, Licensor has for over a decade allowed Licensee to make use of the Mark and has allowed Licensee to develop goodwill in connection with such use and the parties desire to formalize all such rights and relationship;

         NOW, THEREFORE, the parties agree as follows:

        Licensor hereby grants Licensee the non-exclusive right to use the Mark on and in connection with the offering and sale of the Goods and Services, in all designs, logos, marketing materials or other documents or materials owned or used by Licensee. Licensor further grants Licensee the right to make applications and registrations and otherwise formally claim and hold rights in and to the Mark, provided such rights are not inconsistent with this Agreement, and, at Licensee's sole expense, to prosecute and defend the rights of Licensee and those of Licensor (to the extent Licensee may have a direct or indirect interest therein) with respect to the Mark, including the right to institute proceedings in the name and on behalf of Licensor as may be necessary in connection with such prosecution or defense. Licensee is expressly authorized to pursue formal recognition of all of its rights both under this License and in connection with any new trademark rights it establishes and all such applications or claims do not need to reference this License. Licensor expressly acknowledges that Licensee is presently pursuing, exclusively in its own name and title, certain trademark rights related to the Mark. Licensor acknowledges that Licensee has applied for and received U.S. Trademark Application Serial Nos. 78/428,535 and 78/466,986 which applications are presently pending at the U.S. Patent and Trademark Office ("PTO") and Licensor fully consents to this and all similar applications for trademark rights which Licensee may deem to pursue. In the event that Licensee's applications are rejected by the PTO in light of Licensor's pending application, both parties agree to execute a Co-Existence Agreement for submission to the PTO, whereby each party shall acknowledge and agree that its rights and uses in and to all pending applications and/or trademarks may co-exist with the other party's pending applications and/or trademarks without causing consumer confusion.

        Licensee shall use the Mark in connection with its offering of the Goods and Services manufactured, offered and sold by or for Licensee. Licensee hereby grants Licensor the right to inspect Licensee's use of the Mark for quality-control purposes and the parties agree that the standards which will be inspected and maintained in connection with all uses of the Mark are the levels of production quality, customer service and business professionalism established and maintained by Comstock Homes, Inc. (itself a licensed user of the Mark and an affiliate of Licensee) measured as of the date of entry into this License, which use and quality is consistent with the goodwill established and market identity represented by the Mark as originally established by Licensor. Both parties to this license agree to maintain appropriate standards of quality and to generally ensure that all uses of the Mark are of this appropriate quality and character. Further, both parties agree not to take any action which will damage, diminish or otherwise impair the goodwill associated with the Mark.



        Absent Licensee's prior written approval, Licensor agrees not to use, or license or authorize others to use, the Mark in connection with any good or service in direct or indirect competition with the Licensee's Goods and Services, except in connection with the activities of Comstock Partners, LC, permitted under the terms of the Employment Agreement dated December     , 2004 between Licensee and Licensor and the Confidentiality and Non-Competition Agreement dated December    , 2004 between Licensee and Licensor.

        In consideration for this license, Licensee agrees to pay to Licensor a one-time license fee of $1.00 and no ongoing royalty or other payments shall be owed, it being the intent of the parties that Licensee be able to independently use and promote the Mark with no further financial obligations of any kind to Licensor. Licensor further understands that Licensee has in the past made and will continue to make substantial investments in promoting the Mark which investments will or may create new trademark rights relating to the Mark for services and goods offered by and uniquely associated with Licensee and Licensor consents to all such use and creation of new trademark rights. To the fullest extent authorized by law, Licensor authorizes Licensee to claim and exclusively own all new and non-existing trademark rights which Licensee creates by virtue of its use of the Mark and Licensee shall exclusively own all any and all goodwill which arises from, inures to or is associated uses of the Mark by Licensee.

        Licensee recognizes and acknowledges that the Mark and all rights therein and all goodwill originally pertaining thereto belong exclusively to Licensor, that as provided in the foregoing section, Licensee shall enjoy the legal rights arising from its use of the Mark which uses shall inure to the benefit of Licensee, and that Licensor retains the right to use the Mark for other goods or services different than the Goods and Services.

        Licensor warrants that it is the owner of rights in the Mark and that to Licensee's knowledge the rights licensed herein do not violate any other party's rights or interests. Licensee agrees that Licensor shall have no liability, and Licensee shall indemnify, defend, and hold Licensor harmless against any and all damages, liabilities, attorneys' fees or costs incurred by Licensor in defending against any third-party claims or threats of claims under trademark or unfair competition or deceptive trade practices acts arising from Licensee's use of the Mark. Licensor may, at its own expense, appear through counsel of its own choosing.

        The term of this License shall be perpetual and may not be terminated unless one of the following events occurs: Licensee ceases to do business or either party fails to meet any of the material terms of this Agreement, provided that such party shall have thirty days after the receipt of written notice of such failure from the other party in which to correct any such failure.

        Notwithstanding the foregoing, upon the occurrence of any of the following events, Licensor hereby agrees to immediately assign, in writing, all right, title and interest in and to the Mark, including any goodwill associated therewith, to Licensee: (i) Licensor ceases, agrees to cease or is required by operation of law to cease, using the Mark in commerce; (ii) Licensor abandons or agrees to abandon the Mark; (iii) Licensor fails to maintain adequate quality control over the Mark, including any goodwill associated therewith; (iv) Licensor attempts or agrees to transfer the Mark to any third party not under the control of Licensor (for purposes of this Paragraph, "control" shall refer to the legal, beneficial or equitable ownership, directly or indirectly, of fifty percent (50%) or more of the capital stock (or other ownership interest if not a corporation) of such third party); (v) the death of Licensor; or (vi) Licensor materially breaches a term or condition of this License Agreement. Upon the occurrence of any of the foregoing events, Licensor agrees to cooperate as reasonably requested by Licensee with respect to any necessary filings, prosecutions, and maintenance, such cooperation to include: (i) executing without additional compensation (but at Licensee's sole expense) all papers and other instruments deemed appropriate by Licensee for such filings, prosecutions, and maintenance; (ii) providing specimens of use of the Mark as necessary or desirable for such filings, prosecutions and maintenance; and (iii) taking all other actions reasonably requested by Licensee, in each case to perfect, maintain, protect and enforce Licensee's sole, complete and exclusive rights in, and ownership of, the Mark. In furtherance of the foregoing, and applicable only upon the occurrence of one of the foregoing events recited in this paragraph, Licensor hereby irrevocably appoints Licensee as Licensor's



attorney-in-fact, with full authorization to take such actions on behalf of Licensor, including the execution of any documents associated therewith, as set forth in this paragraph. Licensee will reimburse Licensor for any reasonable out-of-pocket costs actually incurred in performing Licensor's obligations under this paragraph. Licensee may assign, transfer, or sublicense this Agreement without the prior written consent of Licensor.

        Licensee may assign, transfer, or sublicense this Agreement without the prior written consent of Licensor. Should Licensor assign, transfer or sublicense the Mark as authorized by this Agreement, any and all rights offered by Licensor to any such assignee or licensee shall be fully subject to all terms and rights established by this Perpetual Trademark License.

        This License contains the entire agreement between the parties relating to the subject matter hereof, and all prior proposals, discussions or writings are superseded hereby. The terms of this License shall be binding upon and shall inure to the benefit of the parties and their successors, heirs and assigns.

        This License shall be effective as of the last date of its signing as indicated below and shall be governed, construed, and enforced in accordance with the laws of the Commonwealth of Virginia

  Agreed to by:      

 

 

 

CHRISTOPHER CLEMENTE

 

 

 

 

 

 

 

 



 

 

 
Dated:
  By:
      Name:
      Title:
      Dated:



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Exhibit 21.1


List of Subsidiaries

Name

  State of incorporation or organization
1.   Comstock Holding Company, Inc.   Virginia
2.   Comstock Homes, Inc.   Virginia
3.   Comstock Service Corp., Inc.   Virginia
4.   Sunset Investment Corp., Inc.   Virginia
5.   Comstock Ashland III, L.C.   Virginia
6.   Comstock Acquisitions, L.C.   Virginia
7.   Comstock Barrington Park, L.C.   Virginia
8.   Comstock Belmont Bay 5, L.C.   Virginia
9.   Comstock Belmont Bay 89, L.C.   Virginia
10.   Comstock Blooms Mill II, L.C.   Virginia
11.   Comstock Brandy Station, L.C.   Virginia
12.   Comstock Capital Partners, L.C.   Virginia
13.   Comstock Cascades, L.C.   Virginia
14.   Comstock Communities, L.C.   Virginia
15.   Comstock Culpepper, L.C.   Virginia
16.   Comstock Delta Lake, LLC   North Carolina
17.   Comstock Delta Ridge II, L.L.C.   Virginia
18.   Comstock Emerald Farm, L.C.   Virginia
19.   Comstock Fairfax I, L.C.   Virginia
20.   Comstock Flynn's Crossing, L.C.   Virginia
21.   Comstock Hamlets of Blue Ridge, L.C.   Virginia
22.   Comstock Haverhill, L.C.   Virginia
23.   Comstock Homes of North Carolina, L.L.C.   North Carolina
24.   Comstock Homes of Raleigh, L.L.C.   North Carolina
25.   Comstock Investors II, L.P.   Virginia
26.   Comstock Investors III, L.P.   Virginia
27.   Comstock Investors Limited Partnership   Virginia
28.   Comstock Investors V, L.C.   Virginia
29.   Comstock Investors VI, L.C.   Virginia
30.   Comstock Kelton II, L.C.   Virginia
31.   Comstock Landing, L.L.C.   Virginia
32.   Comstock Loudoun Station, L.C.   Virginia
33.   Comstock North Carolina, L.L.C.   North Carolina
34.   Comstock Operations, L.P.   Virginia
35.   Comstock Potomac Yard, L.C.   Virginia
36.   Comstock Riverbrooke, L.L.C.   Virginia
37.   Comstock Riverside, L.C.   Virginia
38.   Comstock Sherbrooke, L.C.   Virginia
39.   Comstock Summerland, L.C.   Virginia
40.   Comstock Ventures X, L.C.   Virginia
41.   Comstock Ventures XI, L.C.   Virginia
42.   Comstock Ventures XII, L.C.   Virginia
43.   Comstock Wakefield, L.L.C.   Virginia
44.   Comstock Wellington 17A, L.C.   Virginia
45.   Comstock Wellington III, L.L.C.   Virginia
46.   North Shore Investors, L.L.C.   Virginia
47.   North Shore Raleigh, L.L.C.   Virginia
48.   Settlement Title Services, L.L.C.   Virginia
49.   TCG Fund I, L.C.   Virginia
50.   TCG Debt Fund II, L.C.   Virginia



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Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

        We hereby consent to the use in this Amendment No. 5 to the Registration Statement on Form S-1 of our report dated August 9, 2004 relating to the financial statements of Comstock Homebuilding Companies, Inc., which appears in such Registration Statement. We also consent to the reference to us under the heading "Experts" in such Registration Statement.

/s/ PricewaterhouseCoopers LLP

McLean, Virginia
December 7, 2004


CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

        We hereby consent to the use in this Amendment No. 5 of Registration Statement on Form S-1 of our report dated August 9, 2004 relating to the financial statements of The Comstock Companies, which appears in such Registration Statement. We also consent to the reference to us under the heading "Experts" in such Registration Statement.

/s/ PricewaterhouseCoopers LLP

McLean, Virginia
December 7, 2004


CONSENT OF INDEPENDENT ACCOUNTANTS

        We hereby consent to the use in this Amendment No. 5 to the Registration Statement on Form S-1 of our report dated August 9, 2004 relating to the financial statements of Comstock Service Corp., Inc., which appears in such Registration Statement. We also consent to the reference to us under the heading "Experts" in such Registration Statement.

/s/ PricewaterhouseCoopers LLP

McLean, Virginia
December 7, 2004




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