**Exhibit 10.18**

 

**COMSTOCK HOMEBUILDING COMPANIES,INC.**

 

**RESTRICTED STOCK AGREEMENT**

 

**FOR**

 

[Insertname of Recipient]

 

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

 

**RECITALS**

 

The Committee hasdetermined that it is in the best interests of the Company to recognize theRecipient’s performance and to provide incentive to the Recipient to remainwith the Company and its Related Entities by making this grant of RestrictedStock in accordance with the terms of this Agreement; and

 

The Restricted Stock isgranted pursuant to the Company’s 2004 Long-Term Incentive Compensation Plan(the “**Plan**”) which is incorporatedherein for all purposes.  The Recipienthereby acknowledges receipt of a copy of the Plan.  Unless otherwise provided herein, terms usedherein that are defined in the Plan and not defined herein shall have themeanings 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 valuableconsideration, the receipt and sufficiency of which is hereby acknowledged, theparties hereto, intending to be legally bound, hereby agree as follows:

 

1.                                       Awardof Restricted Stock.  The Committeehereby grants, as of                                   (the “**Date of Grant**”), to theRecipient,                   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 restrictionsset forth in this Agreement and in the Plan. As a condition to entering into this Agreement, and as a condition tothe issuance of any shares of Restricted Stock (or any other securities of theCompany), the Recipient agrees to be bound by all of the terms and conditions hereinand in the Plan.

 

2.                                       Vestingof Restricted Stock.

 

(a)                                  Exceptas otherwise provided in this Section 2 and in Section 4 hereof, the shares ofRestricted Stock shall become vested in the following amounts, at the followingtimes and upon the following conditions, provided that the Continuous Serviceof the Recipient continues through and on the applicable Vesting Date:

 

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| **Number of Shares of Restricted Stock** | ** ** | **Vesting Date** | ** ** |
|------------------------------------------|------------|------------------|------------|
|                                     |       |             |       |

 

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

 

(b)                                 Notwithstandingany other term or provision of this Agreement, in the event of any merger,consolidation or other reorganization in which the Company does not survive, orin 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 followingapproaches, as determined by the agreement effectuating the transaction or, ifand to the extent not so determined, as determined by the Committee: (a) thecontinuation of the grant of the Restricted Stock by the Company, if theCompany is a surviving corporation, subject to the terms and conditions setforth herein, (b) the assumption or substitution for, as those terms aredefined in Section 9(b)(iv) of the Plan, the Restricted Stock by the survivingcorporation or its parent or subsidiary, (c) full vesting of the RestrictedStock, or (d) settlement of the value of the Restricted Stock in cash or cashequivalents or other property followed by cancellation of the Restricted Stock.

 

(c)                                  Notwithstandingthe foregoing, if, within twelve months after a Change in Control of theCompany, the Recipient’s Continuous Service is terminated (i) by the Company ora 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 RestrictedStock subject to this Agreement shall become immediately vested as of the dateof the termination of the Optionee’s Continuous Service.

 

(d)                                 Forpurposes of this Agreement, the following terms shall have the meaningsindicated:

 

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

 

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(ii)                                  “**Vested Shares**” means any portion of theRestricted Stock subject to this Agreement that is and has become vestedpursuant to this Section 2.

 

3.                                       Deliveryof Restricted Stock.

 

(a)                                  Oneor more stock certificates evidencing the Restricted Stock shall be issued inthe name of the Recipient but shall be held and retained by the RecordsAdministrator 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 Section2 hereof, subject to the provisions of Section 4 hereof.  All such stock certificates shall bear thefollowing legends, along with such other legends that the Board or theCommittee shall deem necessary and appropriate or which are otherwise requiredor indicated pursuant to any applicable stockholders agreement:

 

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECTTO SUBSTANTIAL VESTING AND OTHER RESTRICTIONS AS SET FORTH IN THE RESTRICTEDSTOCK AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THE SHARES, ACOPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER.  SUCH RESTRICTIONS ARE BINDING ON TRANSFEREESOF THESE SHARES, AND INCLUDE VESTING CONDITIONS WHICH MAY RESULT IN THECOMPLETE FORFEITURE OF THE SHARES.

 

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

 

(c)                                  On or after each Applicable Date, uponwritten request to the Company by the Recipient, the Company shall promptlycause a new certificate or certificates to be issued for and with respect toall shares that become Vested Shares on that Applicable Date, whichcertificate(s) shall be delivered to the Recipient within fifteen (15) businessdays of the date of receipt by the Company of the Recipient’s writtenrequest.  The new certificate orcertificates shall continue to bear those legends and endorsements that theCompany shall deem necessary or appropriate (including those relating torestrictions on transferability and/or obligations and restrictions under theapplicable securities laws).

 

4.                                       Terminationof Continuous Service.    Except as otherwise providedin Section 2, if the Recipient’s Continuous Service with the Company isterminated, any Non-Vested Shares shall be forfeited immediately upon suchtermination 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 andauthority to enforce on behalf of the Company any rights of the Company underthis Agreement in the event of the Recipient’s forfeiture of Non-Vested Sharespursuant to this Section 4.

 

5.                                       Rightswith Respect to Restricted Stock.

 

(a)                                  Exceptas otherwise provided in this Agreement, the Recipient shall have, with respectto all of the shares of Restricted Stock, whether Vested Shares or Non-VestedShares, 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 RestrictedStock from time to time, and (iii) the rights available to all holders ofshares of common stock of the Company upon any merger, consolidation,reorganization, liquidation or dissolution, stock split-up, stockdividend or recapitalization undertaken by the Company; provided, however,that all of such rights shall be subject to the terms, provisions, conditionsand restrictions set forth in this Agreement (including without limitationconditions under which all such rights shall be forfeited).   AnyShares issued to the Recipient as a dividend with respect to shares of RestrictedStock shall have the same status and bear the same legend as the shares ofRestricted Stock and shall be held by the Company, if the shares of RestrictedStock that such dividend is attributed to is being so held, unless otherwisedetermined by the Committee.  Inaddition, notwithstanding any provision to the contrary herein, any cashdividends declared with respect to shares of Restricted Stock subject to thisAgreement shall be held in escrow by the Committee until such time as theshares of Restricted Stock that such cash dividends are attributed to shallbecome Vested Shares, and in the event that such shares of Restricted Stock aresubsequently forfeited, the cash dividends attributable to such portion shallbe forfeited as well.

 

(b)                                 Ifat any time while this Agreement is in effect (or shares granted hereundershall be or remain unvested while Recipient’s Continuous Service continues andhas not yet terminated or ceased for any reason), there shall be any increaseor decrease in the number of issued and outstanding Shares of the Companythrough the declaration of a stock dividend or through any recapitalizationresulting in a stock split-up, combination or exchange of such shares, then andin that event, the Board or the Committee shall make any adjustments it deemsfair and appropriate, in view of such change, in the number of shares ofRestricted Stock then subject to this Agreement.  If any such adjustment shall result in afractional share, such fraction shall be disregarded.

 

(c)                                  Notwithstandingany term or provision of this Agreement to the contrary, the existence of thisAgreement, or of any outstanding Restricted Stock awarded hereunder, shall notaffect 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 itsbusiness; (ii) any merger, consolidation or similar transaction by or of theCompany; (iii) any offer, issue or sale by the Company of any capital stock ofthe Company, including any equity or debt securities, or preferred orpreference stock that would rank prior to or on parity with the RestrictedStock and/or that would include, have or possess other rights, benefits and/orpreferences 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 ofthe foregoing; (iv) the dissolution or liquidation of the Company; (v) anysale, transfer or assignment of all or any part of the stock, assets orbusiness of the Company; or (vi) any other corporate transaction, act orproceeding (whether of a similar character or otherwise).

 

6.                                       Transferability.   The shares of Restricted Stock are nottransferable until and unless they become Vested Shares in accordance with thisAgreement. 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 anyshares of Restricted Stock prior to the date on which the shares become VestedShares shall be void ab initio.  Forpurposes of this Agreement, “**Transfer**”shall mean any sale, transfer, encumbrance, gift, donation, assignment, pledge,hypothecation, or other disposition, whether similar or dissimilar to thosepreviously enumerated, whether voluntary or involuntary, and including, but notlimited to, any disposition by operation of law, by court order, by judicialprocess, or by foreclosure, levy or attachment.

 

7.                                       TaxMatters; Section 83(b) Election.

 

(a)                                  Ifthe Recipient properly elects, within thirty (30) days of the Date of Grant, toinclude in gross income for federal income tax purposes an amount equal to thefair market value (as of the Date of Grant) of the Restricted Stock pursuant toSection 83(b) of the Internal Revenue Code of 1986, as amended (the “**Code**”), the Recipient shall makearrangements satisfactory to the Company to pay to the Company any federal,state or local income taxes required to be withheld with respect to theRestricted Stock.  If the Recipient shallfail to make such tax payments as are required, the Company shall, to theextent permitted by law, have the right to deduct from any payment of any kindotherwise due to the Recipient any federal, state or local taxes of any kindrequired by law to be withheld with respect to the Restricted Stock.

 

(b)                                 Ifthe 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 therestrictions referred to in this Agreement hereof shall lapse, pay to theCompany, or make arrangements satisfactory to the Committee for payment of, anyfederal, state or local taxes of any kind required by law to be withheld withrespect to the Restricted Stock (including without limitation the vestingthereof), and the Company shall, to the extent permitted by law, have the rightto 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 theRestricted Stock.

 

(c)                                  Taxconsequences 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) arethe 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 taxliability) obligations.

 

8.                                       Amendment& Modification.  This Agreementmay 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 orotherwise, and whether express or implied, with respect to the subject matterhereof, have been made by either party which are not set forth expressly inthis Agreement.

 

9.                                       CompleteAgreement.  This Agreement (togetherwith those agreements and documents expressly referred to herein, for thepurposes referred to herein) embody the complete and entire agreement andunderstanding 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 orotherwise, and whether express or implied, which may relate to the subjectmatter hereof in any way.

 

10.                                 Miscellaneous.

 

(a)                                  NoRight to (Continued) Employment or Service. This Agreement and the grant of Restricted Stock hereunder shall notshall confer, or be construed to confer, upon the Recipient any right toemployment or service, or continued employment or service, with the Company orany Related Entity.

 

(b)                                 NoLimit on Other Compensation Arrangements. Nothing contained in this Agreement shall preclude the Company or anyrelated Entity from adopting or continuing in effect other or additionalcompensation plans, agreements or arrangements, and any such plans, agreementsand arrangements may be either generally applicable or applicable only inspecific cases or to specific persons.

 

(c)                                  Severability.  If any term or provision of this Agreement isor becomes or is deemed to be invalid, illegal or unenforceable in anyjurisdiction or under any applicable law, rule or regulation, then suchprovision shall be construed or deemed amended to conform to applicable law (orif such provision cannot be so construed or deemed amended without materiallyaltering the purpose or intent of this Agreement and the grant of RestrictedStock hereunder, such provision shall be stricken as to such jurisdiction andthe remainder of this Agreement and the award hereunder shall remain in fullforce and effect).

 

(d)                                 NoTrust or Fund Created.  Neither thisAgreement nor the grant of Restricted Stock hereunder shall create or beconstrued to create a trust or separate fund of any kind or a fiduciaryrelationship between the Company and the Recipient or any other person.  To the extent that the Recipient or any otherperson acquires a right to receive payments from the Company pursuant to thisAgreement, such right shall be no greater than the right of any unsecuredgeneral creditor of the Company.

 

(e)                                  LawGoverning.  This Agreement shall begoverned by and construed and enforced in accordance with the internal laws ofthe State of Delaware (without reference to the conflict of laws rules orprinciples thereof).

 

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

 

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

 

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

 

(h)                                 Notices.  Any notice under this Agreement shall be inwriting and shall be deemed to have been duly given when delivered personallyor when deposited in the United States mail, registered, postage prepaid, andaddressed, 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 asshown on the Company’s records, subject to the right of either party todesignate some other address at any time hereafter in a notice satisfying therequirements of this Section.

 

(i)                                     Non-Waiverof Breach.  The waiver by any party heretoof 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 awriting signed by such party, and shall not operate nor be construed as awaiver of any subsequent breach or violation, and the waiver by any partyhereto to exercise any right or remedy which he or it may possess shall notoperate 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 theoccurrence of any subsequent breach or violation.

 

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

 

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**INWITNESS WHEREOF**, the parties hereto, intending to be legallybound, 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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