**Exhibit 3.1**

 

**AMENDED AND RESTATEDCERTIFICATE OF INCORPORATION OFCOMSTOCK HOMEBUILDING COMPANIES, INC.**

 

 

Comstock HomebuildingCompanies, Inc., a corporation organized and existing under the GeneralCorporation Law of the State of Delaware, hereby certifies as follows:

 

1.                                       Thecorporation was incorporated on May 24, 2004, under the name ComstockCompanies, Inc., pursuant to the General Corporation Law of the State ofDelaware.  The Certificate ofIncorporation was amended on June 30, 2004.

 

2.                                       Pursuantto Sections 242 and 245 of the General Corporation Law of the State ofDelaware, this Amended and Restated Certificate of Incorporation restates andintegrates and further amends the provisions of the Certificate ofIncorporation of the corporation.

 

3.                                       Thetext of the Certificate of Incorporation is hereby amended and restated in itsentirety as follows:

 

**“ARTICLEI**

**NAME**

 

The name of the Corporation is Comstock HomebuildingCompanies, Inc. (the “Corporation”).

 

**ARTICLEII**

**REGISTEREDOFFICE AND AGENT**

 

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

 

**ARTICLEIII**

**PURPOSE**

 

The purpose of the Corporation is to engage in anylawful act or activity for which corporations may be organized under theGeneral Corporation Law of the State of Delaware (the “DGCL”).

 

**ARTICLEIV**

**CAPITALSTOCK**

 

The total number of shares of all classes of capitalstock which the Corporation shall have authority to issue is One HundredMillion (100,000,000) shares, of which:

 

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Seventy Seven Million Two Hundred Sixty Six Thousandand Five Hundred (77,266,500) shares, par value $0.01 per share, shall beshares of Class A common stock (the “Class A Common Stock”);

 

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

 

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

 

(A)                              CommonStock.  Except as (i) otherwiserequired by law or (ii) expressly provided in this Amended and RestatedCertificate of Incorporation (as amended from time to time), each share ofCommon Stock shall have the same powers, rights and privileges and shall rankequally, share ratably and be identical in all respects as to all matters.

 

(1)                                  Dividends.  Subject to the rights of the holders ofPreferred Stock, and to the other provisions of this Amended and RestatedCertificate of Incorporation (as amended from time to time), holders of CommonStock shall be entitled to receive equally, on a per share basis, suchdividends and other distributions in cash, securities or other property of theCorporation as may be declared thereon by the Board of Directors from time totime out of assets or funds of the Corporation legally available therefor; provided,however, that any dividends payable in shares of Common Stock (orpayable in rights to subscribe for or purchase shares of Common Stock orsecurities or indebtedness convertible into or exchangeable for shares ofCommon Stock) shall be declared and paid at the same rate on each class ofCommon Stock and only in shares of Class A Common Stock (or rights to subscribefor or to purchase shares of Class A Common Stock or securities or indebtednessconvertible into or exchangeable for shares of Class A Common Stock) to holdersof Class A Common Stock and in shares of Class B Common Stock (or rights tosubscribe for or to purchase shares of Class B Common Stock or securities orindebtedness convertible into or exchangeable for shares of Class B Common Stock)to holders of Class B Common Stock.

 

(2)                                  VotingRights.  Except as otherwise providedin this Amended and Restated Certificate of Incorporation, the holders of ClassA Common Stock and Class B Common Stock shall vote together as a single classwith respect to all matters submitted to a vote of holders of shares of CommonStock, subject to any voting rights which may be granted to holders of anyPreferred Stock.  The holders of sharesof Common Stock shall have the following voting rights:

 

(a)                                  Eachshare of Class A Common Stock shall entitle the holder thereof to one (1) votein person or by proxy on all matters submitted to a vote of the stockholders ofthe Corporation; and

 

(b)                                 Eachshare of Class B Common Stock shall entitle the holder thereof to fifteen (15)votes in person or by proxy on all matters submitted to a vote of the

 

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stockholders of the Corporation, except with respect to any GoingPrivate Transaction (as hereinafter defined), which shall be governed byParagraph (A)(10) of this Article IV.

 

(3)                                  LiquidationRights.  In the event of anyliquidation, dissolution or winding up of the affairs of the Corporation,whether voluntary or involuntary, after payment or provision for payment of theCorporation’s debts and amounts payable upon shares of Preferred Stock entitledto a preference, if any, over holders of Common Stock upon such dissolution,liquidation or winding up, the remaining net assets of the Corporation shall bedistributed among holders of shares of Common Stock equally on a per sharebasis.  A merger or consolidation of theCorporation with or into any other corporation or other entity, or a sale orconveyance of all or any part of the assets of the Corporation (which shall notin fact result in the liquidation of the Corporation and the distribution ofassets to its stockholders) shall not be deemed to be a voluntary orinvoluntary liquidation or dissolution or winding up of the Corporation withinthe meaning of this Paragraph (A)(3).

 

(4)                                  VoluntaryConversion of Class B Common Stock.

 

(a)                                  Theholder of each share of Class B Common Stock shall have the right at any time,or from time to time, at such holder’s option, to convert such share into onefully paid and nonassessable share of Class A Common Stock on and subject tothe terms and conditions hereinafter set forth.

 

(b)                                 Inorder to exercise the conversion privilege, the holder of any shares of Class BCommon Stock to be converted shall present and surrender the certificate or certificatesrepresenting such shares during usual business hours at any office or agency ofthe Corporation maintained for the transfer of Class B Common Stock and shalldeliver a written notice of the election of the holder to convert the sharesrepresented by such certificate or any portion thereof specified in suchnotice. Such notice shall also state the name or names (with address) in whichthe certificate or certificates for shares of Class A Common Stock issuable onsuch conversion shall be registered. If required by the Corporation, anycertificate for shares surrendered for conversion shall be accompanied byinstruments of transfer, in form satisfactory to the Corporation, duly executedby the holder of such shares or his duly authorized representative. Eachconversion of shares of Class B Common Stock shall be deemed to have beeneffected on the date (the “Conversion Date”) on which the certificate orcertificates representing such shares shall have been surrendered and suchnotice and any required instruments of transfer shall have been received asaforesaid, and the person or persons in whose name or names any certificate orcertificates for shares of Class A Common Stock shall be issuable on suchconversion shall be, for the purpose of receiving dividends and for all othercorporate purposes whatsoever, deemed to have become the holder or holders ofrecord of the shares of Class A Common Stock represented thereby on theConversion Date.

 

(c)                                  Aspromptly as practicable after the presentation and surrender for conversion, asherein provided, of any certificate for shares of Class B Common Stock, theCorporation shall issue and deliver at such office or agency, to or upon thewritten order of the holder thereof, certificates for the number of shares of ClassA Common Stock issuable upon such conversion. Subject to the provisions of Paragraph (A)(5) of this Article IV, incase any

 

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certificate for shares of Class B Common Stock shall be surrendered forconversion of only a part of the shares represented thereby, the Corporationshall deliver at such office or agency, to or upon the written order of theholder thereof, a certificate or certificates for the number of shares of ClassB Common Stock represented by such surrendered certificate that are not beingconverted.

 

(5)                                  AutomaticConversion of Class B Common Stock Upon Certain Events.

 

(a)                                  Asused in this Paragraph A(5), the following terms have the following meanings:

 

(i)                                     “InitialHolder” shall mean each of Christopher Clemente and Gregory V. Benson,individually.

 

(ii)                                  “IPODate” shall mean the closing date of any initial public offering of the Class ACommon Stock in a firm commitment underwritten offering that is registered withthe U.S. Securities and Exchange Commission.

 

(iii)                               “PermittedTransferee” shall mean:

 

(AA)                    Inthe case of a holder of record of the Class B Common Stock (the “Class BHolder”) who is a natural person and the beneficial owner of the shares ofClass B Common Stock to be transferred, Permitted Transferees shall includeonly the following:

 

(I)                                    thespouse of such Class B Holder, any lineal descendant of a grandparent of suchClass B Holder, or any spouse of such lineal descendent (herein collectivelyreferred to as such Class B Holder’s “Family Members”);

 

(II)                                thetrustee or trustees of a trust (including a voting trust) for the sole benefitof such Class B Holder and/or one or more of such Class B Holder’s PermittedTransferees, except that such trust may also grant a general or special powerof appointment to one or more of such Class B Holder’s Family Members and maypermit trust assets to be used to pay taxes, legacies, and other obligations ofthe Trust or the estates of one or more of such Class B Holder’s Family Memberspayable by reason of the death of any of such Family Members; provided, however,if at any time such trust ceases to meet the requirements of this subparagraph(II), all shares of Class B Common Stock then held by such trustee or trusteesshall immediately and automatically, without further act or deed on the part ofthe Corporation or any person, be converted into Class A Common Stock on ashare-for-share basis, and stock certificates formerly representing such sharesof Class B Common Stock shall thereupon and thereafter be deemed to represent alike number of shares of Class A Common Stock;

 

(III)                            acorporation or similar entity wholly owned by such Class B Holder and/or suchClass B Holder’s Permitted Transferees or a partnership or similar entity inwhich all of the general partners are, and all of the general partnershipinterests are owned by, such Class B Holder and/or such Class B Holder’sPermitted Transferees; provided that if by reason of any change in theownership of such stock or general partners or

 

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general partnership interests, such corporation or partnership would nolonger qualify as a Permitted Transferee of such Class B Holder, all shares ofClass B Common Stock then held by such corporation or partnership shallimmediately and automatically, without further act or deed on the part of thecorporation or any other person, be converted into shares of Class A CommonStock on a share-for-share basis, and stock certificates formerly representingsuch shares of Class B Common Stock shall thereupon and thereafter be deemed torepresent a like number of shares of Class A Common Stock;

 

(IV)                            anorganization established by the Class B Holder and/or such Class B Holder’sPermitted Transferees, contributions to which are deductible for federalincome, estate, or gift tax purposes (a “Charitable Organization”) and amajority of whose governing board at all times consists of the Class B Holderand/or one or more of the Permitted Transferees of such Class B Holder, or anysuccessor to such Charitable Organization meeting such definition; providedthat if by reason of any change in the composition of the governing board ofsuch Charitable Organization, such Charitable Organization shall no longerqualify as a Permitted Transferee of such Class B Holder, all shares of Class BCommon Stock then held by such Charitable Organization shall immediately andautomatically, without further act or deed on the part of the Corporation orany other person, be converted into shares of Class A Common Stock on ashare-for-share basis, and stock certificates formerly representing such sharesof Class B Common Stock shall thereupon and thereafter be deemed to representthe like number of shares of Class A Common Stock; and

 

(V)                                theexecutor, administrator, or personal representative of the estate of a deceasedClass B Holder or guardian or conservator of a Class B Holder adjudged disabledor incompetent by a court of competent jurisdiction, acting in his capacity assuch.

 

(BB)                        Inthe case of a Class B Holder who is the executor or administrator of the estateof a deceased Class B Holder or guardian or conservator of the estate of adisabled or incompetent Class B Holder, Permitted Transferees shall includeonly a Permitted Transferee of such deceased, disabled, or incompetent Class BHolder.

 

(CC)                        Inthe case of a Class B Holder holding the shares of Class B Common Stock astrustee pursuant to a trust, Permitted Transferees shall include only thefollowing:

 

(I)                                    theperson who contributed such shares to such trust and any Permitted Transfereeof such person, determined in accordance with Paragraph (A)(5)(a)(iii)(AA) ofthis Article IV; and

 

(II)                                anysuccessor trustee of such trust who is described in the immediately precedingsubparagraph (CC)(I).

 

(DD)                      Inthe case of a Class B Holder that is a partnership or similar entity, PermittedTransferees shall include only:

 

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(I)                                    anypartner of such partnership who was also a partner of such partnership on theIPO Date;

 

(II)                                anyperson transferring shares of Class B Common Stock to such partnership afterthe IPO Date (to the extent of the number of shares of Class B Common Stocktransferred by the transferor to such partnership); and

 

(III)                            anyPermitted Transferee of such person referred to in the immediately precedingsubparagraphs (DD)(I) or (DD)(II) (not in excess of the number of shares thatsuch person is entitled to receive pursuant to this subparagraph (DD)).

 

(EE)                          Inthe case of a Class B Holder that is a corporation or similar entity, PermittedTransferees shall include only:

 

(I)                                    anystockholder of such corporation on the IPO Date who receives shares of Class BCommon Stock pro rata to his stock ownership in such corporation through adividend or a distribution on or upon redemption of the shares of suchcorporation;

 

(II)                                anyperson transferring shares of Class B Common Stock to such corporation afterthe IPO Date (to the extent of the number of shares of Class B Common Stocktransferred by the transferor to such corporation); and

 

(III)                            anyPermitted Transferee of such stockholder or person referred to in theimmediately preceding subparagraphs (EE)(I) or (EE)(II) (not in excess of thenumber of shares that such stockholder or person is entitled to receivepursuant to this subparagraph (EE).

 

(FF)                          Anemployee benefit plan sponsored by the Corporation or any of its affiliates.

 

(GG)                        AnyInitial Holder.

 

For purposes of this Paragraph (A)(5)(a)(iii), (1) therelationship of any person that is derived by or through legal adoption shallbe considered a natural one; (2) each joint owner of shares of Class B CommonStock shall be considered a Class B Holder of such shares; (3) a minor for whomshares of Class B stock are held pursuant to a Uniform Gifts to Minors Act orsimilar law shall be considered a Class B Holder of such shares; and (4) unlessotherwise specified, the term “person” means both natural person and legalentities.

 

(iv)                              “Transfer”shall mean any sale, assignment, transfer, gift, hypothecation or otherdisposition, whether voluntary or involuntary, of Class B Common Stock.

 

(b)                                 Norecord or beneficial owner of shares of Class B Common Stock may Transfer, andthe Corporation shall not register the Transfer of, such shares of Class B

 

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Common Stock, whether by sale, assignment, gift, bequest, appointment,or otherwise, except to a Permitted Transferee.

 

(c)                                  Anypurported Transfer of shares of Class B Common Stock not permitted hereundershall result in the conversion of the transferee’s shares of Class B CommonStock into shares of Class A Common Stock, effective on the date on whichcertificates representing such shares are presented for transfer on the stocktransfer record books of the Corporation; provided, however, thatif the Corporation should determine that such shares were not so presented fortransfer within 20 days after the date of such sale, transfer, assignment, orother disposition, the transfer date shall be the actual date of such sale,transfer, assignment, or other disposition as determined in good faith by theBoard of Directors or its appointed agent. The Corporation may, as a conditionto the transfer or the registration of transfer of shares of Class B Common Stockto a purported Permitted Transferee, require the furnishing of such affidavitsor other proof as it deems necessary to establish that such transferee is aPermitted Transferee. If no indication to the contrary is supplied at the timeshares of Class B Common Stock are presented for transfer, the transfer shallbe presumed by the Corporation to be a transfer to a person other than thePermitted Transferee.

 

(d)                                 Sharesof Class B Common Stock shall not be registered in “street” or “nominee” names;provided, however, that certificates representing shares of ClassB Common Stock may be registered in the name of a nominee which is a PermittedTransferee.  The Corporation shall noteon the certificates representing the shares of Class B Common Stock that thereare restrictions on transfer and registration of transfer imposed by thisAmended and Restated Certificate of Incorporation.

 

(e)                                  Notwithstandinganything to the contrary set forth herein, (i) upon the death or permanentdisability (as determined in good faith by the Board of Directors) of either ofthe Initial Holders, all shares of Class B Common Stock then held by suchInitial Holder shall be converted automatically into shares of Class A CommonStock on a share-for-share basis, and stock certificates formerly representingsuch shares of Class B Common Stock shall thereupon and thereafter be deemed torepresent a like number of shares of Class A Common Stock; (ii) if eitherInitial Holder ceases to beneficially own (as such term is defined under Section13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)at least 5% of the then-outstanding shares of Common Stock, all shares of ClassB Common Stock then held by such Initial Holder shall be convertedautomatically into shares of Class A Common Stock on a share-for-share basis,and stock certificates formerly representing such shares of Class B CommonStock shall thereupon and thereafter be deemed to represent a like number ofshares of Class A Common Stock; and (iii) upon a Permitted Transferee ceasingto qualify as a Permitted Transferee (and subject to the operation of Paragraph(A)(5)(f) of this Article IV) all shares of Class B Common Stock held by itshall be converted automatically into shares of Class A Common Stock on a share-for-sharebasis, and stock certificates formerly representing such shares of Class BCommon Stock shall thereupon and thereafter be deemed to represent a likenumber of shares of Class A Common Stock.

 

(f)                                    Notwithstandingthe foregoing, in the event that any transferee of Class B Common Stock is notat the time of transfer or thereafter ceases to qualify as a Permitted

 

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Transferee, and within ten business days after the Corporation notifiessuch person that it has concluded that such person is not or has ceased toqualify as a Permitted Transferee and the bases for such conclusion, suchperson transfers the shares of Class B Common Stock to a Permitted Transferee,demonstrates that it is a Permitted Transferee or takes appropriate action sothat it qualifies as a Permitted Transferee, then notwithstanding anything elsein this Section 4.2, the shares of Class B Common Stock held by such personthat converted automatically into shares of Class A Common Stock as a result ofsuch person not being or ceasing to qualify as a Permitted Transferee shallconvert back to Class B Common Stock.

 

(g)                                 NoClass B Holder may pledge its Class B Common Stock to a third party for anyreason, including but not limited to a pledge of such Class B Common Stock ascollateral security for indebtedness or a similar obligation.

 

(6)                                  FurtherProvisions Regarding Conversions.

 

(a)                                  Anydividends declared and not paid on shares of Common Stock prior to theirconversion as provided above shall be paid, on the payment date, to the holderor holders entitled thereto on the record date for such dividend payment,notwithstanding such conversion; provided, however, that suchholder or holders shall not be entitled to receive the corresponding dividendsdeclared but not paid on the shares of Common Stock issuable upon suchconversion.

 

(b)                                 Inthe event of a reclassification or other similar transaction as a result ofwhich the shares of Class A Common Stock are converted into another security,then a holder of Class B Common Stock shall be entitled to receive uponconversion the amount of such security that such holder would have received ifsuch conversion had occurred immediately prior to the record date of suchreclassification or other similar transaction.

 

(c)                                  Sharesof the Class B Common Stock converted into Class A Common Stock shall beretired and shall resume the status of authorized but unissued shares of ClassB Common Stock.

 

(d)                                 Theissuance of certificates for shares of Class A Common Stock issuable upon theconversion of shares of Class B Common Stock by the registered holder thereofshall be made without charge to the converting holder for any tax imposed onthe Corporation in respect of the issue thereof. The Corporation shall not, however,be required to pay any tax that may be payable with respect to any transferinvolved in the issue and delivery of any certificate in a name other than thatof the registered holder of the shares being converted, and the Corporationshall not be required to issue or deliver any such certificate unless and untilthe person requesting the issue thereof shall have paid to the Corporation theamount of such tax or has established to the satisfaction of the Corporationthat such tax has been paid.

 

(7)                                  Reservationof Shares.  The Corporation shall atall times reserve and keep available out of its authorized but unissued sharesof Class A Common Stock, solely for the purpose of effecting the conversionsprovided for herein, such number of shares of Class A Common Stock as shallfrom time to time be sufficient to effect the conversions provided for

 

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herein and shall take all such corporate action as may be necessary toassure that such shares of Class A Common Stock shall be validly issued, fullypaid and non-assessable upon conversion of all of the outstanding shares ofClass B Common Stock; moreover, if at any time the number of authorized butunissued shares of Class A Common Stock shall not be sufficient to effect theconversions provided for herein, the Corporation shall take such corporateaction as may be necessary to increase its authorized but unissued shares ofClass A Common Stock to such number of shares as shall be sufficient for suchpurpose.

 

(8)                                  Adjustmentsfor Stock Splits and Stock Dividends. The Corporation shall treat theshares of Common Stock identically in respect of any subdivisions orcombinations (for example, if the Corporation effects a two-for-one stock splitwith respect to the Class A Common Stock, it shall at the same time effect atwo-for-one stock split with respect to the Class B Common Stock).

 

(9)                                  Mergers,Consolidation, Etc.  In the eventthat the Corporation shall enter into any consolidation, merger, combination orother transaction in which shares of Common Stock are exchanged for or changedinto other stock or securities, cash and/or any other property, then, and insuch event, the shares of each class of Common Stock shall be exchanged for orchanged into (i) the same amount of stock, securities, cash and/or any otherproperty, as the case may be, into which or for which each share of any otherclass of Common Stock is exchanged or changed; provided, however,that if shares of Common Stock are exchanged for or changed into shares ofcapital stock, such shares so exchanged for or changed into may differ to theextent and only to the extent that the Class A Common Stock and the Class BCommon Stock differ as provided herein; or (ii) if holders of each class ofCommon Stock are to receive different distributions of stock, securities, cashand/or any other property, either (1) holders of Class A Common Stock shallreceive an amount of stock, securities, cash and/or property per share having avalue, as determined by an independent investment banking firm of nationalreputation selected by the Board of Directors, greater than or equal to thevalue per share into which or for which each share of Class B Common Stock isexchanged or changed, or (2) holders of Class A Common Stock and holders ofClass B Common Stock shall receive such stock, securities, cash and/or propertyper share as shall be provided for pursuant to a transaction approved by theholders of a majority of Class A Common Stock and by the holders of a majorityClass B Common Stock, each voting separately as a class.

 

(10)                            GoingPrivate Transaction.  Notwithstandinganything to the contrary contained in this Amended and Restated Certificate ofIncorporation, with respect to any Going Private Transaction (as defined below),the holders of shares of Class A Common Stock and Class B Common Stock shallvote together as a single class, with each share of Class A Common Stock andeach share of Class B Common Stock entitling the holder thereof to one (1)vote.  For purposes of this Paragraph(A)(10), the term “Going Private Transaction” shall mean any transactionbetween the Corporation and (i) an Initial Holder, (ii) any Affiliate (asdefined below) of an Initial Holder, or (iii) any group including an InitialHolder or Affiliates of an Initial Holder where the participation of suchperson or persons in such group would cause the transaction to be deemed a“Rule 13e-3 Transaction,” as such term is defined in Rule 13e-3(a)(3), asamended from time to time, promulgated under the Exchange Act; provided,however, that the term “affiliate” as used in Rule 13e-3(a)(3)(i) shallbe deemed to include an Affiliate, as

 

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defined herein.  For purposeshereof, an “Affiliate” of a person shall mean (i) any individual or entity whoor that, directly or indirectly, controls, is controlled by, or is under commoncontrol with such person, and (ii) the spouse, a child or grandchild (by blood,adoption or marriage) of such person, or any trust for the benefit of one ormore of the foregoing.

 

(B)                                PreferredStock.  The Board of Directors isauthorized, subject to limitations prescribed by law, to provide by resolutionor resolutions for the issuance of shares of Preferred Stock in one or moreseries, to establish the number of shares to be included in each such series,and to fix the voting powers (if any), designations, powers, preferences, andrelative, participating, optional or other rights, if any, of the shares ofeach such series, and any qualifications, limitations or restrictionsthereof.  Irrespective of the provisionsof Section 242(b)(2) of the DGCL, the number of authorized shares of PreferredStock may be increased or decreased (but not below the number of shares thereofthen outstanding) by the affirmative vote of the holders of a majority invoting power of the stock of the Corporation entitled to vote, without theseparate vote of the holders of the Preferred Stock as a class.

 

**ARTICLE VBOARD OF DIRECTORS**

 

(A)                              Management.  The business and affairs of the Corporationshall be managed by or under the direction of the Board of Directors.  The Board of Directors may exercise all suchauthority and powers of the Corporation and do all such lawful acts and thingsas are not by statute or this Amended and Restated Certificate of Incorporationdirected or required to be exercised or done by the stockholders.

 

(B)                                Numberof Directors.  The number ofdirectors of the Corporation shall be fixed from time to time in the mannerprovided in the Amended and Restated Bylaws.

 

(C)                                Newly-CreatedDirectorships and Vacancies.  Subjectto the rights of the holders of any series of Preferred Stock then outstanding,newly created directorships resulting from any increase in the number ofdirectors or any vacancies in the Board of Directors resulting from death,resignation, retirement, disqualification, removal from office or any othercause may be filled by the Board of Directors, provided that a quorum is thenin office and present, or by a majority of the directors then in office, ifless than a quorum is then in office, or by the sole remaining director.  Directors elected to fill a newly createddirectorship or other vacancies shall hold office until such director’s successorhas been duly elected and qualified or until his or her earlier death,resignation or removal as hereinafter provided.

 

(D)                               Removalof Directors.  Subject to the rightsof the holders of any series of Preferred Stock then outstanding, any directormay be removed from office at any time for cause, at a meeting called for thatpurpose, and only by the affirmative vote of the holders of at least 66-2/3% ofthe voting power of all shares of the Corporation entitled to vote generally inthe election of directors, voting together as a single class.

 

(E)                                 Rightsof Holders of Preferred Stock. Notwithstanding the foregoing provisions of this Article V, whenever theholders of one or more series of Preferred Stock issued by the

 

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Corporation shall have the right, voting separately or together byseries, to elect directors at an annual or special meeting of stockholders, theelection, term of office, filling of vacancies and other features of suchdirectorship shall be governed by the rights of such Preferred Stock as setforth in the certificate of designations governing such series.

 

(F)                                 WrittenBallot Not Required.  Elections ofdirectors need not be by written ballot unless the Amended and Restated Bylawsof the Corporation shall otherwise provide.

 

(G)                                Bylaws.  The Board of Directors is expresslyauthorized to adopt, amend or repeal the bylaws of the Corporation.  Any bylaws made by the directors under thepowers conferred hereby may be amended or repealed by the directors or by thestockholders.  Notwithstanding theforegoing and anything contained in this Amended and Restated Certificate ofIncorporation to the contrary, the bylaws of the Corporation shall not beamended or repealed by the stockholders, and no provision inconsistenttherewith shall be adopted by the stockholders, without the affirmative vote ofthe holders of 66-2/3% of the voting power of all shares of the Corporationentitled to vote generally in the election of directors, voting together as asingle class.

 

(H)                               Classificationof Directors.  At each annual meetingof stockholders, directors of the Corporation shall be elected to hold officeuntil the expiration of the term for which they are elected, and until theirsuccessors have been duly elected and qualified; except that if any suchelection shall be not so held, such election shall take place at astockholders’ meeting called and held in accordance with the DGCL.  The directors of the Corporation shall bedivided into three classes as nearly equal in size as is practicable, herebydesignated Class I, Class II and Class III.  The term of office of the initialClass I directors shall expire at the next succeeding annual meeting ofstockholders, the term of office of the initial Class II directors shallexpire at the second succeeding annual meeting of stockholders and the term ofoffice of the initial Class III directors shall expire at the thirdsucceeding annual meeting of the stockholders. For the purposes hereof, the initial Class I, Class II andClass III directors shall be those directors elected by the stockholdersof the Corporation in connection with the adoption of this Amended and RestatedCertificate of Incorporation.  At eachannual meeting after the first annual meeting of stockholders, directors toreplace those of a Class whose terms expire at such annual meeting shall beelected to hold office until the third succeeding annual meeting and untiltheir respective successors shall have been duly elected and qualified.  If the number of directors is hereafterchanged, any newly created directorships or decrease in directorships shall beso apportioned among the classes as to make all classes as nearly equal innumber as practicable.

 

**ARTICLEVI**

**LIMITATIONOF LIABILITY**

 

A director of the Corporation shall not be personallyliable to the Corporation or its stockholders for monetary damages for breachof fiduciary duty as a director; *provided,however*, that the foregoing shall not eliminate or limit theliability of a director (i) for any breach of the director’s duty of loyalty tothe Corporation or its stockholders, (ii) for acts or omissions not in goodfaith 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 thedirector derived an improper personal benefit. If the DGCL is hereafter amended to permit further elimination or

 

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limitation of the personal liability of directors, then the liabilityof a director of the Corporation shall be eliminated or limited to the fullestextent permitted by the DGCL as so amended. Any repeal or modification of this Article VI by the stockholders of theCorporation or otherwise shall not adversely affect any right or protection ofa director of the Corporation existing at the time of such repeal ormodification.

 

**ARTICLE VIIINDEMNIFICATION**

 

Each person who was or is made a party or isthreatened to be made a party to or is involved (including, without limitation,as a witness) in any actual or threatened action, suit or proceeding, whethercivil, criminal, administrative or investigative (hereinafter a “proceeding”),by reason of the fact that he is or was a director or officer of theCorporation or is or was serving at the request of the Corporation as adirector or officer of another corporation or of a partnership, limitedliability company, joint venture, trust or other entity, including service withrespect to an employee benefit plan (hereinafter an “Indemnitee”), whether thebasis of such proceeding is alleged action in an official capacity as adirector or officer or in any other capacity while so serving, shall beindemnified and held harmless by the Corporation to the full extent authorizedby the DGCL, as the same exists or may hereafter be amended (but, in the caseof any such amendment, only to the extent that such amendment permits theCorporation to provide broader indemnification rights than said law permittedthe Corporation to provide prior to such amendment), or by other applicable lawas then in effect, against all costs, expenses, liabilities and losses(including attorneys’ fees and related costs, judgments, fines, excise taxes orpenalties under the Employee Retirement Income Security Act of 1974, as amendedfrom time to time (“ERISA”), penalties and amounts paid or to be paid insettlement) actually and reasonably incurred or suffered by such Indemnitee inconnection therewith, and such indemnification shall continue as to a personwho has ceased to be a director, officer, partner, member or trustee and shallinure to the benefit of his or her heirs, executors and administrators.  Each person who is or was serving as adirector or officer of a subsidiary of the Corporation shall be deemed to beserving, or have served, at the request of the Corporation.

 

(A)                              Procedure.  Any indemnification (but not advancement ofexpenses) under this Article VII (unless ordered by a court) shall be made bythe Corporation only as authorized in the specific case upon a determinationthat indemnification of the director or officer is proper in the circumstancesbecause he has met the applicable standard of conduct set forth in the DGCL, asthe same exists or hereafter may be amended (but, in the case of any suchamendment, only to the extent that such amendment permits the Corporation toprovide broader indemnification rights than said law permitted the Corporationto provide prior to such amendment). Such determination shall be made with respect to a person who is adirector or officer at the time of such determination (a) by a majority vote ofthe directors who were not parties to such proceeding (the “DisinterestedDirectors”), even though less than a quorum, (b) by a committee ofDisinterested Directors designated by a majority vote of DisinterestedDirectors, even though less than a quorum, (c) if there are no suchDisinterested Directors, or if such Disinterested Directors so direct, byindependent legal counsel in a written opinion, or (d) by the stockholders.

 

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(B)                                Advancesfor Expenses.  Expenses (includingattorneys’ fees, costs and charges) incurred by a director or officer of theCorporation in defending a proceeding shall be paid by the Corporation inadvance of the final disposition of such proceeding upon receipt of anundertaking by or on behalf of the director or officer to repay all amounts soadvanced in the event that it shall ultimately be determined that such directoror officer is not entitled to be indemnified by the Corporation as authorizedin this Article VII.  The majority of theDisinterested Directors may, in the manner set forth above, and upon approvalof such director or officer of the Corporation, authorize the Corporation’scounsel to represent such person, in any proceeding, whether or not theCorporation is a party to such proceeding.

 

(C)                                Procedurefor Indemnification.  Anyindemnification or advance of expenses (including attorney’s fees, costs andcharges) under this Article VII shall be made promptly, and in any event within60 days upon the written request of the director or officer (and, in the caseof advance of expenses, receipt of a written undertaking by or on behalf ofIndemnitee to repay such amount if it shall ultimately be determined thatIndemnitee is not entitled to be indemnified therefor pursuant to the terms ofthis Article VII).  The right toindemnification or advances as granted by this Article VII shall be enforceableby the director or officer in any court of competent jurisdiction, if theCorporation denies such request, in whole or in part, or if no dispositionthereof is made within 60 days.  Suchperson’s costs and expenses incurred in connection with successfullyestablishing his/her right to indemnification, in whole or in part, in any suchaction 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 therequired undertaking, if any, has been received by the Corporation) that theclaimant has not met the standard of conduct set forth in the DGCL, as the sameexists or hereafter may be amended (but, in the case of any such amendment,only to the extent that such amendment permits the Corporation to providebroader indemnification rights than said law permitted the Corporation toprovide prior to such amendment), but the burden of proving such defense shallbe on the Corporation.  Neither thefailure of the Corporation (including its Board of Directors, its independentlegal counsel and its stockholders) to have made a determination prior to thecommencement of such action that indemnification of the claimant is proper inthe circumstances because he/she has met the applicable standard of conduct setforth in the DGCL, as the same exists or hereafter may be amended (but, in thecase of any such amendment, only to the extent that such amendment permits theCorporation to provide broader indemnification rights than said law permittedthe Corporation to provide prior to such amendment), nor the fact that therehas been an actual determination by the Corporation (including its Board ofDirectors, its independent legal counsel and its stockholders) that theclaimant has not met such applicable standard of conduct, shall be a defense tothe action or create a presumption that the claimant has not met the applicablestandard of conduct.

 

(D)                               OtherRights; Continuation of Right to Indemnification.  The indemnification and advancement ofexpenses provided by this Article VII shall not be deemed exclusive of anyother rights to which a person seeking indemnification or advancement ofexpenses may be entitled under any law (common or statutory), bylaw, agreement,vote of stockholders or disinterested directors or otherwise, both as to actionin his/her official capacity and as to action in another capacity while holdingoffice or while employed by or acting as agent for the Corporation, and

 

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shall continue as to a person who has ceased to be a director orofficer, and shall inure to the benefit of the estate, heirs, executors andadministers of such person.  All rightsto indemnification under this Article VII shall be deemed to be a contractbetween the Corporation and each director or officer of the Corporation whoserves or served in such capacity at any time while this Article VII is ineffect.  Any repeal or modification ofthis Article VII or any repeal or modification of relevant provisions of theDGCL or any other applicable laws shall not in any way diminish any rights toindemnification of such director or officer or the obligations of theCorporation arising hereunder with respect to any proceeding arising out of, orrelating to, any actions, transactions or facts occurring prior to the finaladoption 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 aswell as the resulting or surviving corporation, so that any person who,following such consolidation or merger, is a director or officer of such aconstituent corporation or is serving at the request of such constituentcorporation as a director or officer of another corporation, partnership, jointventure, trust or other entity shall stand in the same position under theprovisions of this Article VII, with respect to the resulting or survivingcorporation during the period following such consolidation or merger, as hewould if he/she had served the resulting or surviving corporation in the samecapacity.

 

(E)                                 Insurance.  The Corporation shall have power to purchaseand maintain insurance on behalf of any person who is or was or has agreed tobecome a director or officer of the Corporation, or is or was serving at therequest of the Corporation as a director or officer of another corporation,partnership, joint venture, trust or other entity, against any liabilityasserted 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 havethe power to indemnify him against such liability under the provisions of thisArticle VII; *provided, however*,that such insurance is available on acceptable terms, which determination shallbe made by a vote of a majority of the Board of Directors.

 

(F)                                 SavingsClause.  If this Article VII or anyportion hereof shall be invalidated on any ground by any court of competentjurisdiction, then the Corporation shall nevertheless indemnify each personentitled to indemnification under the first paragraph of this Article VII as toall costs, expenses, liabilities and losses (including attorneys’ fees andrelated costs, judgments, fines, ERISA excise taxes and penalties, penaltiesand amounts paid or to be paid in settlement) actually and reasonably incurredor suffered by such person and for which indemnification is available to suchperson pursuant to this Article VII to the full extent permitted by anyapplicable portion of this Article VII that shall not have been invalidated andto the full extent permitted by applicable law.

 

**ARTICLEVIII**

**ACTIONBY WRITTEN CONSENT/SPECIAL MEETINGS OF STOCKHOLDERS**

 

For so long as either any class of the Corporation’sCommon Stock is registered under Section 12 of the Exchange Act, or theCorporation is required to file periodic reports with the Securities andExchange Commission pursuant to Section 15(d) of the Exchange Act withrespect to any class of the Corporation’s Common Stock:  (i) the stockholders of the Corporation

 

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may not take any action by written consent in lieu of a meeting, andmust take any actions at a duly called annual or special meeting ofstockholders and the power of stockholders to consent in writing without ameeting is specifically denied and (ii) special meetings of stockholdersof the Corporation may be called only by either the Board of Directors pursuantto a resolution adopted by the affirmative vote of the majority of the totalnumber of directors then in office or by the chief executive officer of theCorporation.

 

**ARTICLEIX**

**AMENDMENT**

 

The Corporation reserves the right to amend, alter,change or repeal any provision contained in this Amended and RestatedCertificate of Incorporation, in the manner now or hereafter prescribed bystatute, and all rights conferred upon stockholders herein are granted subjectto this reservation.  Notwithstanding anyother provision of this Amended and Restated Certificate of Incorporation orthe Amended and Restated Bylaws of the Corporation, and notwithstanding thefact that a lesser percentage or separate class vote may be specified by law,this Amended and Restated Certificate of Incorporation, the Amended andRestated Bylaws of the Corporation or otherwise, but in addition to anyaffirmative vote of the holders of any particular class or series of thecapital stock required by law, this Amended and Restated Certificate ofIncorporation, 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 powerof all shares of the Corporation entitled to vote generally in the election ofdirectors, voting together as a single class, shall be required to adopt anyprovision inconsistent with, to amend or repeal any provision of, or to adopt abylaw inconsistent with, Articles V, VI, VII, VIII or IX of this Amended andRestated Certificate of Incorporation, and (ii) the rights of the Class BCommon Stock may not be amended, altered, changed or repealed without theapproval of the holders of a majority of the outstanding shares of Class BCommon Stock, voting as a separate class.”

 

*     *    *

 

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4.                                       Theforegoing amendment and restatement of the Certificate of Incorporation hasbeen duly approved by the Board of Directors of the corporation in accordancewith the provisions of Sections 144, 242 and 245 of the General Corporation Lawof the State of Delaware.

 

5.                                       Theforegoing amendment and restatement of the Certificate of Incorporation hasbeen duly approved by the written consent of the stockholders in accordancewith Sections 228, 242 and 245 of the General Corporation Law of the State ofDelaware.

 

IN WITNESS WHEREOF, the corporation has causes thisAmended and Restated Certificate of Incorporation to be signed by its Presidenton this 17th day of December, 2004.

 
|   | COMSTOCK HOMEBUILDING  COMPANIES, INC. |
|--------|----------------------------------------|
|   |                                   |
|   |                                   |
|   | By                                     | /s/ Gregory Benson |   |
|   | Name:                                  | Gregory Benson |
|   | Title:                                 | President |
|        |                                        |  |  |  |

 

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