Exhibit 10.18


 


COMSTOCK HOMEBUILDING COMPANIES,
INC.


 


RESTRICTED STOCK AGREEMENT


 


FOR


 


[Insert
name of Recipient]


 


This RESTRICTED STOCK AGREEMENT (the “Agreement”) is made and entered into
effective as of                                               .
200    , by and between COMSTOCK HOMEBUILDING COMPANIES,
INC. a Delaware corporation (the “Company”),
and                                         
(the “Recipient”).


 


RECITALS


 


The Committee has
determined that it is in the best interests of the Company to recognize the
Recipient’s performance and to provide incentive to the Recipient to remain
with the Company and its Related Entities by making this grant of Restricted
Stock in accordance with the terms of this Agreement; and


 


The Restricted Stock is
granted pursuant to the Company’s 2004 Long-Term Incentive Compensation Plan
(the “Plan”) which is incorporated
herein for all purposes.  The Recipient
hereby acknowledges receipt of a copy of the Plan.  Unless otherwise provided herein, terms used
herein that are defined in the Plan and not defined herein shall have the
meanings attributable thereto in the Plan.


 


NOW,
THEREFORE, for and in consideration of the mutual premises,
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:


 


1.                                       Award
of Restricted Stock.  The Committee
hereby grants, as of                                   
(the “Date of Grant”), to the
Recipient,                   
shares of Class A Common Stock, par value $.01 per share, of the Company
(collectively the “Restricted Stock”),
which shares are and shall be subject to the terms, provisions and restrictions
set forth in this Agreement and in the Plan. 
As a condition to entering into this Agreement, and as a condition to
the issuance of any shares of Restricted Stock (or any other securities of the
Company), the Recipient agrees to be bound by all of the terms and conditions herein
and in the Plan.


 


2.                                       Vesting
of Restricted Stock.


 


(a)                                  Except
as otherwise provided in this Section 2 and in Section 4 hereof, the shares of
Restricted Stock shall become vested in the following amounts, at the following
times and upon the following conditions, provided that the Continuous Service
of the Recipient continues through and on the applicable Vesting Date:


 





















 




	
  Number of Shares of Restricted Stock

  	
   

  	
  Vesting Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  






 


There shall be no proportionate or partial vesting of
shares of Restricted Stock in or during the months, days or periods prior to
each Vesting Date, and all vesting of shares of Restricted Stock shall occur
only on the applicable Vesting Date. 
Upon the termination or cessation of Recipient’s Continuous Service, for
any reason whatsoever, any portion of the Restricted Stock which is not yet
then vested, and which does not then become vested pursuant to this Section 2,
shall automatically and without notice terminate, be forfeited and be and
become null and void.


 


(b)                                 Notwithstanding
any other term or provision of this Agreement, in the event of any merger,
consolidation or other reorganization in which the Company does not survive, or
in the event of any Change in Control, as defined in Section 9(b) of the Plan,
the Restricted Stock may be dealt with in accordance with any of the following
approaches, as determined by the agreement effectuating the transaction or, if
and to the extent not so determined, as determined by the Committee: (a) the
continuation of the grant of the Restricted Stock by the Company, if the
Company is a surviving corporation, subject to the terms and conditions set
forth herein, (b) the assumption or substitution for, as those terms are
defined in Section 9(b)(iv) of the Plan, the Restricted Stock by the surviving
corporation or its parent or subsidiary, (c) full vesting of the Restricted
Stock, or (d) settlement of the value of the Restricted Stock in cash or cash
equivalents or other property followed by cancellation of the Restricted Stock.


 


(c)                                  Notwithstanding
the foregoing, if, within twelve months after a Change in Control of the
Company, the Recipient’s Continuous Service is terminated (i) by the Company or
a Related Entity without Cause, (ii) by the Recipient for Good Reason, or (iii)
by reason of the Optionee’s death or Disability, then, the shares of Restricted
Stock subject to this Agreement shall become immediately vested as of the date
of the termination of the Optionee’s Continuous Service.


 


(d)                                 For
purposes of this Agreement, the following terms shall have the meanings
indicated:


 


(i)                                     “Non-Vested Shares” means any portion of the
Restricted Stock subject to this Agreement that has not become vested pursuant
to this Section 2.


 


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(ii)                                  “Vested Shares” means any portion of the
Restricted Stock subject to this Agreement that is and has become vested
pursuant to this Section 2.


 


3.                                       Delivery
of Restricted Stock.


 


(a)                                  One
or more stock certificates evidencing the Restricted Stock shall be issued in
the name of the Recipient but shall be held and retained by the Records
Administrator of the Company until the date (the “Applicable Date”) on which the shares (or a portion thereof)
subject to this Restricted Stock award become Vested Shares pursuant to Section
2 hereof, subject to the provisions of Section 4 hereof.  All such stock certificates shall bear the
following legends, along with such other legends that the Board or the
Committee shall deem necessary and appropriate or which are otherwise required
or indicated pursuant to any applicable stockholders agreement:


 


THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO SUBSTANTIAL VESTING AND OTHER RESTRICTIONS AS SET FORTH IN THE RESTRICTED
STOCK AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THE SHARES, A
COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER.  SUCH RESTRICTIONS ARE BINDING ON TRANSFEREES
OF THESE SHARES, AND INCLUDE VESTING CONDITIONS WHICH MAY RESULT IN THE
COMPLETE FORFEITURE OF THE SHARES.


 


(b)                                 The
Recipient shall deposit with the Company stock powers or other instruments of
transfer or assignment, duly endorsed in blank with signature(s) guaranteed,
corresponding to each certificate representing shares of Restricted Stock until
such shares become Vested Shares.  If the
Recipient shall fail to provide the Company with any such stock power or other
instrument of transfer or assignment, the Recipient hereby irrevocably appoints
the Secretary of the Company as his attorney-in-fact, with full power of
appointment and substitution, to execute and deliver any such power or other
instrument which may be necessary to effectuate the transfer of the Restricted
Stock (or assignment of distributions thereon) on the books and records of the
Company.


 


(c)                                  On or after each Applicable Date, upon
written request to the Company by the Recipient, the Company shall promptly
cause a new certificate or certificates to be issued for and with respect to
all shares that become Vested Shares on that Applicable Date, which
certificate(s) shall be delivered to the Recipient within fifteen (15) business
days of the date of receipt by the Company of the Recipient’s written
request.  The new certificate or
certificates shall continue to bear those legends and endorsements that the
Company shall deem necessary or appropriate (including those relating to
restrictions on transferability and/or obligations and restrictions under the
applicable securities laws).


 


4.                                       Termination
of Continuous Service.    Except as otherwise provided
in Section 2, if the Recipient’s Continuous Service with the Company is
terminated, any Non-Vested Shares shall be forfeited immediately upon such
termination of Continuous Service and revert back to


 


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the Company without any payment to the Recipient.  The Committee shall have the power and
authority to enforce on behalf of the Company any rights of the Company under
this Agreement in the event of the Recipient’s forfeiture of Non-Vested Shares
pursuant to this Section 4.


 


5.                                       Rights
with Respect to Restricted Stock.


 


(a)                                  Except
as otherwise provided in this Agreement, the Recipient shall have, with respect
to all of the shares of Restricted Stock, whether Vested Shares or Non-Vested
Shares, all of the rights of a holder of shares of common stock of the Company,
including without limitation (i) the right to vote such Restricted Stock, (ii)
the right to receive dividends, if any, as may be declared on the Restricted
Stock from time to time, and (iii) the rights available to all holders of
shares of common stock of the Company upon any merger, consolidation,
reorganization, liquidation or dissolution, stock split-up, stock
dividend or recapitalization undertaken by the Company; provided, however,
that all of such rights shall be subject to the terms, provisions, conditions
and restrictions set forth in this Agreement (including without limitation
conditions under which all such rights shall be forfeited).   Any
Shares issued to the Recipient as a dividend with respect to shares of Restricted
Stock shall have the same status and bear the same legend as the shares of
Restricted Stock and shall be held by the Company, if the shares of Restricted
Stock that such dividend is attributed to is being so held, unless otherwise
determined by the Committee.  In
addition, notwithstanding any provision to the contrary herein, any cash
dividends declared with respect to shares of Restricted Stock subject to this
Agreement shall be held in escrow by the Committee until such time as the
shares of Restricted Stock that such cash dividends are attributed to shall
become Vested Shares, and in the event that such shares of Restricted Stock are
subsequently forfeited, the cash dividends attributable to such portion shall
be forfeited as well.


 


(b)                                 If
at any time while this Agreement is in effect (or shares granted hereunder
shall be or remain unvested while Recipient’s Continuous Service continues and
has not yet terminated or ceased for any reason), there shall be any increase
or decrease in the number of issued and outstanding Shares of the Company
through the declaration of a stock dividend or through any recapitalization
resulting in a stock split-up, combination or exchange of such shares, then and
in that event, the Board or the Committee shall make any adjustments it deems
fair and appropriate, in view of such change, in the number of shares of
Restricted Stock then subject to this Agreement.  If any such adjustment shall result in a
fractional share, such fraction shall be disregarded.


 


(c)                                  Notwithstanding
any term or provision of this Agreement to the contrary, the existence of this
Agreement, or of any outstanding Restricted Stock awarded hereunder, shall not
affect in any manner the right, power or authority of the Company to make,
authorize or consummate: (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Company’s capital structure or its
business; (ii) any merger, consolidation or similar transaction by or of the
Company; (iii) any offer, issue or sale by the Company of any capital stock of
the Company, including any equity or debt securities, or preferred or
preference stock that would rank prior to or on parity with the Restricted
Stock and/or that would include, have or possess other rights, benefits and/or
preferences superior to those that the Restricted Stock includes, has


 


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or possesses, or any warrants, options or rights with respect to any of
the foregoing; (iv) the dissolution or liquidation of the Company; (v) any
sale, transfer or assignment of all or any part of the stock, assets or
business of the Company; or (vi) any other corporate transaction, act or
proceeding (whether of a similar character or otherwise).


 


6.                                       Transferability.   The shares of Restricted Stock are not
transferable until and unless they become Vested Shares in accordance with this
Agreement. The terms of this Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Recipient.  Any attempt to effect a Transfer of any
shares of Restricted Stock prior to the date on which the shares become Vested
Shares shall be void ab initio.  For
purposes of this Agreement, “Transfer”
shall mean any sale, transfer, encumbrance, gift, donation, assignment, pledge,
hypothecation, or other disposition, whether similar or dissimilar to those
previously enumerated, whether voluntary or involuntary, and including, but not
limited to, any disposition by operation of law, by court order, by judicial
process, or by foreclosure, levy or attachment.


 


7.                                       Tax
Matters; Section 83(b) Election.


 


(a)                                  If
the Recipient properly elects, within thirty (30) days of the Date of Grant, to
include in gross income for federal income tax purposes an amount equal to the
fair market value (as of the Date of Grant) of the Restricted Stock pursuant to
Section 83(b) of the Internal Revenue Code of 1986, as amended (the “Code”), the Recipient shall make
arrangements satisfactory to the Company to pay to the Company any federal,
state or local income taxes required to be withheld with respect to the
Restricted Stock.  If the Recipient shall
fail to make such tax payments as are required, the Company shall, to the
extent permitted by law, have the right to deduct from any payment of any kind
otherwise due to the Recipient any federal, state or local taxes of any kind
required by law to be withheld with respect to the Restricted Stock.


 


(b)                                 If
the Recipient does not properly make the election described in Subsection 7(a)
above, the Recipient shall, no later than the date or dates as of which the
restrictions referred to in this Agreement hereof shall lapse, pay to the
Company, or make arrangements satisfactory to the Committee for payment of, any
federal, state or local taxes of any kind required by law to be withheld with
respect to the Restricted Stock (including without limitation the vesting
thereof), and the Company shall, to the extent permitted by law, have the right
to deduct from any payment of any kind otherwise due to Recipient any federal, state,
or local taxes of any kind required by law to be withheld with respect to the
Restricted Stock.


 


(c)                                  Tax
consequences on the Recipient (including without limitation federal, state,
local and foreign income tax consequences) with respect to the Restricted Stock
(including without limitation the grant, vesting and/or forfeiture thereof) are
the sole responsibility of the Recipient. 
The Recipient shall consult with his or her own personal accountant(s)
and/or tax advisor(s) regarding these matters, the making of a Section 83(b)
election, and the Recipient’s filing, withholding and payment (or tax
liability) obligations.


 


8.                                       Amendment
& Modification.  This Agreement
may only be modified or amended in a writing signed by the parties hereto.  No promises, assurances, commitments,
agreements,


 


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undertakings or representations, whether oral, written, electronic or
otherwise, and whether express or implied, with respect to the subject matter
hereof, have been made by either party which are not set forth expressly in
this Agreement.


 


9.                                       Complete
Agreement.  This Agreement (together
with those agreements and documents expressly referred to herein, for the
purposes referred to herein) embody the complete and entire agreement and
understanding between the parties with respect to the subject matter hereof,
and supersede any and all prior promises, assurances, commitments, agreements,
undertakings or representations, whether oral, written, electronic or
otherwise, and whether express or implied, which may relate to the subject
matter hereof in any way.


 


10.                                 Miscellaneous.


 


(a)                                  No
Right to (Continued) Employment or Service. 
This Agreement and the grant of Restricted Stock hereunder shall not
shall confer, or be construed to confer, upon the Recipient any right to
employment or service, or continued employment or service, with the Company or
any Related Entity.


 


(b)                                 No
Limit on Other Compensation Arrangements. 
Nothing contained in this Agreement shall preclude the Company or any
related Entity from adopting or continuing in effect other or additional
compensation plans, agreements or arrangements, and any such plans, agreements
and arrangements may be either generally applicable or applicable only in
specific cases or to specific persons.


 


(c)                                  Severability.  If any term or provision of this Agreement is
or becomes or is deemed to be invalid, illegal or unenforceable in any
jurisdiction or under any applicable law, rule or regulation, then such
provision shall be construed or deemed amended to conform to applicable law (or
if such provision cannot be so construed or deemed amended without materially
altering the purpose or intent of this Agreement and the grant of Restricted
Stock hereunder, such provision shall be stricken as to such jurisdiction and
the remainder of this Agreement and the award hereunder shall remain in full
force and effect).


 


(d)                                 No
Trust or Fund Created.  Neither this
Agreement nor the grant of Restricted Stock hereunder shall create or be
construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company and the Recipient or any other person.  To the extent that the Recipient or any other
person acquires a right to receive payments from the Company pursuant to this
Agreement, such right shall be no greater than the right of any unsecured
general creditor of the Company.


 


(e)                                  Law
Governing.  This Agreement shall be
governed by and construed and enforced in accordance with the internal laws of
the State of Delaware (without reference to the conflict of laws rules or
principles thereof).


 


(f)                                    Interpretation.  The Recipient accepts the Restricted Stock
subject to all of the terms, provisions and restrictions of this Agreement and
the Plan.  The undersigned Recipient


 


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hereby accepts as binding, conclusive and final all decisions or
interpretations of the Board or the Committee upon any questions arising under
this Agreement.


 


(g)                                 Headings.  Section, paragraph and other headings and
captions are provided solely as a convenience to facilitate reference.  Such headings and captions shall not be
deemed in any way material or relevant to the construction, meaning or
interpretation of this Agreement or any term or provision hereof.


 


(h)                                 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 President at                                                                                             ,
or if the Company should move its principal office, to such principal office,
and, in the case of the Recipient, to the Recipient’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.


 


(i)                                     Non-Waiver
of Breach.  The waiver by any party hereto
of the other party’s prompt and complete performance, or breach or violation,
of any term or provision of this Agreement shall be effected solely in a
writing signed by such party, and shall not operate nor be construed as a
waiver of any subsequent breach or violation, and the waiver by any party
hereto to exercise any right or remedy which he or it may possess shall not
operate nor be construed as the waiver of such right or remedy by such party,
or as a bar to the exercise of such right or remedy by such party, upon the
occurrence of any subsequent breach or violation.


 


(j)                                     Counterparts.  This Agreement may be executed in two or more
separate counterparts, each of which shall be an original, and all of which
together shall constitute one and the same agreement.


 


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IN
WITNESS WHEREOF, the parties hereto, intending to be legally
bound, have executed this Agreement as of the date first written above.


 


	
   

  	
  COMSTOCK HOMEBUILDING

  COMPANIES, INC., a Delaware

  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Agreed and
  Accepted:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  RECIPIENT:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  [Insert name of Recipient]

  	
   

  
						



 


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