EXHIBIT 4.1


 


AMENDED AND RESTATED


DISTRIBUTION REINVESTMENT PLAN


OF


BEHRINGER HARVARD REIT I, INC.


 


Behringer Harvard REIT I, Inc.,
a Maryland corporation (the “Company”), has adopted this amended and restated distribution
reinvestment plan, effective as of May 14, 2009 (the “Plan”), administered
by the Company or an unaffiliated third-party (the “Administrator”), as agent
for participants in the Plan (“Participants”), on the terms and conditions set
forth below.


 


1.                                       Election to Participate. Subject to the terms hereof, any
purchaser of shares of common stock of the Company, par value $.0001 per share
(the “Shares”), may become a Participant by making a written election to
participate on the purchaser’s subscription agreement at the time of
subscription for Shares. Any stockholder who has not previously elected to
participate in the Plan may so elect at any time by completing and executing an
authorization form obtained from the Administrator or any other appropriate
documentation as may be required by the Administrator. Participants generally
are required to have the full amount of their cash distributions (other than “Designated
Special Distributions” as defined below) with respect to all Shares owned by
them reinvested pursuant to the Plan. However, the Administrator shall have the
sole discretion, upon the request of a Participant, to accommodate a
Participant’s request for less than all of the Participant’s Shares to be
subject to participation in the Plan.


 


2.                                       Distribution Reinvestment Plan. The Administrator will receive all cash
distributions (other than “Designated Special Distributions” as defined below)
paid by the Company with respect to Shares of Participants (collectively, the “Distributions”).
Participation will commence with the next Distribution payable after receipt of
the Participant’s election pursuant to Paragraph 1 hereof, provided it is
received at least ten days prior to the last day of the month to which the
Distribution relates. Subject to the preceding sentence, regardless of the date
of the election, a holder of Shares will become a Participant in the Plan
effective on the first day of the month following the election, and the
election will apply to all Distributions attributable to the month and to all
months thereafter. As used in this Plan, the term “Designated Special
Distributions” shall mean those cash or other distributions designated as
Designated Special Distributions by the board of directors of the Company (the “Board”).


 


3.                                       General Terms of Plan Investments. The Administrator will apply all
Distributions subject to this Plan, as follows:


 


(a)                                  Prior to the termination of the Company’s
public offering of the Shares reserved for issuance under the Plan pursuant to
the Company’s prospectus dated January 5, 2009, as thereafter amended or
supplemented (the “DRP Offering”), the Administrator will invest Distributions
in Shares at a price equal to 95% of the most recently disclosed estimated
value per Share (the “Valuation”) as determined in accordance with our
valuation policy (the “Valuation Policy”), as such Valuation Policy is amended
from time to time, regardless of the price per Share paid by the Participant
for the Shares in respect of which the Distributions are paid.  The Valuation Policy in effect as of the
effective date of this Plan is attached hereto as Exhibit A.


 


(b)                                 After termination of the DRP Offering,
the Administrator will invest Distributions in Shares that may (but are not
required to) be supplied from either (1) Shares registered with the
Securities and Exchange Commission (the “Commission”) pursuant to an effective
registration statement for Shares for use in the Plan (a “Future Registration”)
or (2) Shares purchased by the Administrator for the Plan in a secondary
market (if available) or on a national stock exchange (if listed)
(collectively, the “Secondary Market”) and registered with the Commission for
resale pursuant to the Plan.  Shares
registered in a Future Registration that are not purchased by the Administrator
in the Secondary Market will be issued at a price equal to 95% of the most
recently disclosed Valuation.  Shares
purchased on the Secondary Market as set forth in (2) above will be
purchased at the then-prevailing market price, and the average price paid by
the Administrator for all purchases for a single Distribution will be utilized
for purposes of determining the purchase price for Shares purchased under the
Plan on the investment date; however, in no event will the purchase price for
Shares purchased under the Plan be less than 95% of the market price for Shares
on the investment date. Shares acquired by the Administrator on the Secondary
Market or registered in a Future Registration for use in the Plan may be at
prices lower or higher than the per Share price that will be paid for the
Shares purchased for the Plan pursuant to the DRP Offering and any subsequent 


 

















 


offering. If the
Administrator acquires Shares in the Secondary Market for use in the Plan, the
Administrator shall use reasonable efforts to acquire Shares for use in the
Plan at the lowest price then reasonably available. However, the Administrator
does not in any respect guaranty or warrant that the Shares so acquired and
purchased by the Participants in the Plan will be at the lowest possible price.
Further, irrespective of the Administrator’s ability to acquire Shares in the
Secondary Market or the Company’s ability to complete a Future Registration for
shares to be used in the Plan, neither the Administrator nor the Company is in
any way obligated to do either.


 


(c)                                  Regardless of the pricing determined
pursuant to Paragraphs 3(a) and 3(b) above, the Board may determine,
from time to time, in its sole discretion, the price at which the Administrator
will invest Distributions in Shares; provided that if the Board takes such
action under this Paragraph 3(c), the Company shall deliver a notice regarding
the new price to each Participant at least 30 days prior to the effective date
of the new price.  No advance notice of
pricing pursuant to Paragraphs (a) or (b) above shall be required.


 


(d)                                 No selling commission or dealer manager
fee will be paid for Shares purchased pursuant to the Plan.


 


(e)                                  For each Participant, the Administrator
will maintain an account that shall reflect for each month the Distributions
received by the Administrator on behalf of the Participant. A Participant’s
account shall be reduced as purchases of Shares are made on behalf of the
Participant.


 


(f)                                    Distributions shall be invested in Shares
by the Administrator promptly following the payment date with respect to the Distributions
to the extent Shares are available for purchase under the Plan. If sufficient
Shares are not available, any funds that have not been invested in Shares
within 30 days after receipt by the Administrator will be distributed to the
Participants. Any interest earned on the accounts will be paid to the Company
and is and will become the property of the Company.


 


(g)                                 Fractional Shares, computed to four
decimal places, shall be purchased for each Participant account, if applicable.
The ownership of the Shares shall be reflected on the books of the Company or
its transfer agent.


 


4.                                       Distribution of Funds. In making purchases for Participants’
accounts, the Administrator may commingle Distributions attributable to Shares
owned by Participants and any additional payments received from Participants in
respect of the purchase of Shares.


 


5.                                       Absence of Liability. Neither the Company nor the
Administrator shall have any responsibility or liability as to the value of the
Shares, any change in the value of the Shares acquired for the Participant’s
account, or the rate of return earned on, or the value of, the interest-bearing
accounts in which Distributions are invested. Neither the Company nor the
Administrator shall be liable for any act done in good faith, or for any good
faith omission to act, including, without limitation, any claims of liability (a) arising
out of the failure to terminate a Participant’s participation in the Plan upon
the Participant’s death prior to receipt of notice in writing of the death and
the expiration of ten days from the date of receipt of the notice and (b) with
respect to the time and the prices at which Shares are purchased for a
Participant.


 


6.                                       Suitability.


 


(a)                                  Each Participant shall notify the
Administrator in the event that, at any time during his participation in the
Plan, there is any material change in the Participant’s financial condition or
inaccuracy of any representation under the Subscription Agreement for the
Participant’s initial purchase of Shares.


 


(b)                                 For purposes of this Paragraph 6, a
material change shall include any anticipated or actual decrease in net worth
or annual gross income or any other change in circumstances that would cause
the Participant to fail to meet the suitability standards set forth in the Company’s
prospectus for the Participant’s initial purchase of Shares.


 


7.                                       Reports to Participants. Within 60 days after the end of each
fiscal quarter, the Administrator will deliver to each Participant a statement
of account describing, as to the Participant, the Distributions received during
the


 


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quarter, the number of
Shares purchased during the quarter and the calendar year pursuant to the Plan,
and the per Share purchase price for the Shares. Each statement shall also
advise the Participant that, in accordance with Paragraph 6(a) hereof, the
Participant is required to notify the Administrator in the event that there is
any material change in the Participant’s financial condition or if any
representation made by the Participant under the subscription agreement for the
Participant’s initial purchase of Shares becomes inaccurate. Tax information
regarding a Participant’s participation in the Plan will be sent to each
Participant by the Company or the Administrator at least annually.


 


8.                                       No Drawing. No Participant shall have any right to
draw checks or drafts against the Participant’s account or give instructions to
the Company or the Administrator except as expressly provided herein.


 


9.                                       Taxes. Taxable Participants may incur a tax liability for
Company Distributions even though they have elected not to receive their
Distributions in cash but rather to have their Distributions held in their
account under the Plan.


 


10.                                 Termination.


 


(a)                                  A Participant may terminate or modify his
participation in the Plan at any time by written notice mailed to the
Administrator. To be effective for any Distribution, the notice must be
received by the Administrator at least ten days prior to the last day of the
month to which the Distribution relates.


 


(b)                                 Prior to the listing of the Shares on a
national stock exchange, a Participant’s transfer of Shares will terminate
participation in the Plan with respect to the transferred Shares as of the
first day of the month in which the transfer is effective, unless the
transferee of the Shares in connection with the transfer demonstrates to the
Administrator that the transferee meets the requirements for participation
hereunder and affirmatively elects participation by delivering an executed
authorization form or other instrument required by the Administrator.


 


(c)                                  The Administrator may terminate a
Participant’s individual participation in the Plan, and the Company may suspend
or terminate the Plan itself, at any time by ten days’ prior written notice to
a Participant, or to all Participants, as the case may be.


 


(d)                                 After termination of the Plan or
termination of a Participant’s participation in the Plan, the Administrator
will send to each Participant (1) a statement of account in accordance
with Paragraph 7 hereof, and (2) a check for the amount of any
Distributions in the Participant’s account that have not been invested in
Shares. Any future Distributions with respect to the former Participant’s
Shares made after the effective date of the termination of the Participant’s
participation in the Plan will be sent directly to the former Participant or to
the other party as the Participant has designated pursuant to an authorization
form or other documentation satisfactory to the Administrator.


 


11.                                 State Regulatory Restrictions. The Administrator is authorized to deny
participation in the Plan to residents of any state that imposes restrictions
on participation in the Plan that conflict with the general terms and
provisions of this Plan.


 


12.                                 Notice. Any notice or other communication required or
permitted to be given by any provision of this Plan shall be in writing and, if
to the Administrator, addressed to Behringer Harvard Investment Services, P.O. Box
219768, Kansas City, MO 64121-9768, or any other address as may be specified by
the Administrator by written notice to all Participants. Notices to a
Participant may be given by letter addressed to the Participant at the
Participant’s last address of record with the Administrator or delivered by
electronic means to any address specified by the Participant. Each Participant
shall notify the Administrator promptly in writing of any change of address.


 


13.                                 Amendment. The terms and conditions of this Plan may be amended
or supplemented by the Company at any time, including but not limited to an
amendment to the Plan to substitute a new Administrator to act as agent for the
Participants, by delivering an appropriate notice to each Participant at least
30 days prior to the effective date of the amendment or supplement. The
amendment or supplement shall be deemed conclusively accepted by each
Participant except those Participants from whom the Administrator receives
written notice of termination prior to the effective date thereof.


 


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In the event that the
Plan is amended pursuant to this Paragraph 13 or suspended pursuant to
Paragraph 10(c) hereof, each Participant shall remain a Participant in the
Plan receiving cash distributions during such period that the Plan is suspended
or the Shares cannot otherwise be distributed hereunder, unless the Participant
terminates his participation in accordance with the procedures set forth under
Paragraph 10(a) above.   Once such suspension or other inability to
distribute Shares hereunder ceases, the Participant will then receive Shares
hereunder.


 


14.                                 Governing Law. THIS PLAN AND
PARTICIPANT’S ELECTION TO PARTICIPATE IN THE PLAN SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF MARYLAND.


 


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EXHIBIT A


 


POLICY
FOR ESTIMATION OF COMMON STOCK VALUE


OF


BEHRINGER
HARVARD REIT I, INC.


 


In order to assist
fiduciaries in discharging their obligations under ERISA reporting requirements
and to assist broker-dealers in connection with their obligations under
applicable FINRA Rules with respect to customer account statements,
Behringer Harvard REIT I, Inc. (the “Company”) has adopted this policy in
respect of estimating the per share value of its common stock (the “Common
Stock”) as of May 14, 2009.  This
policy may be amended by the Board of Directors of the Company (the “Board”) at
any time in its sole discretion.  In
addition, although this policy expresses the intent of the Board at the time of
its adoption, there is no limitation on the ability of the Board to cause the
Company to vary from this policy to the extent it deems appropriate, with or
without an express amendment of this policy.


 


The Company shall provide
its stockholders a per share estimated value of its common stock on a periodic
basis, generally annually.  Until 18
months have passed without a sale in an offering of the Common Stock (or other
securities from which the Board believes the value of a share of common stock
can be estimated), the Company shall use the gross offering price of a share of
the Common Stock in its most recent offering as the per share estimated value
thereof or, with respect to an offering of other securities from which the
value of a share of Common Stock can be estimated, the Company shall use the
value derived from the gross offering price of such other security as the per
share estimated value of the Common Stock. 
For purposes of the foregoing, an offering shall not include an offering
related to a distribution reinvestment plan, employee benefit plan or the
redemption of interests in the Company’s operating partnership.


 


No later than 18 months
after the last sale in an offering of the securities described above, the
Company shall disclose an estimated per share value that is not based solely on
the offering price of securities in the most recent offering.  This estimate shall be determined by the
Board, or a committee thereof, after consultation with Behringer Advisors, LLC
(the “Advisor”), or if the Company shall no longer be administered by the
Advisor, the Company’s officers and employees. 
The Advisor or the Company may engage such experts and third parties as
it may deem appropriate.  If a committee
of the Board of Directors estimates the value, a majority of the voting members
of the committee will be independent directors; however, the committee may also
include officers or employees of the Company, the Advisor or the Advisor’s
affiliates.


 


If the Company has sold
assets and made distributions to stockholders of net proceeds from such sales
since the termination of the most recent offering, the estimated value per
share shall generally be net of the amount of those distributions.


 


The Board or committee
thereof will have the discretion to choose a methodology or combination of
methodologies as it deems reasonable under then current circumstances for
estimating the per share value of the Common Stock.  These methodologies may take account numerous
factors including, without limitation, the following:


 


·                  net
amounts that might be realized in a sale of the Company’s assets in an orderly
liquidation;


 


·                  net
amounts that might be realized in a bulk portfolio sale of the Company’s
assets;


 


·                  separate
valuations of the Company’s assets;


 


·                  private
real estate market conditions;


 


·                  public
real estate market conditions;


 


·                  the
business plan of the Company and characteristics and factors specific to the
portfolio or securities;


 


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·                  the
prices at which the Company’s securities were sold in other offerings, such as
a distribution reinvestment plan offering;


 


·                  the
prices paid for Company securities in other transactions, including secondary
market trades;


 


·                  the
relative prices paid for comparable companies listed on a national securities
exchange; and


 


·                  the
Company’s going concern value.


 


The Board may rely on the
Advisor or a third-party valuation expert to assist in estimating the value of
the Company’s assets or its shares of Common Stock.  However, with respect to asset valuations,
the Board shall not be required to obtain asset-by-asset appraisals prepared by
appraisers certified by a Member of the Appraisal Institute or other trade
organization that monitors appraisers, nor must any appraisals conform to formats
or standards promulgated by any such trade organization.  The Company shall disclose the effective date
of the estimated valuation.  The Company
shall not release individual property value estimates or any of the data
supporting the estimated per share value, and the Board is under no obligation
to describe the factors on which it relied or the methodologies utilized in
estimating the estimated value of a share of Common Stock.


 


After first
publishing an estimate by the Board within 18 months after an offering as
described above, the Company shall repeat the process of estimating share value
of the Common Stock periodically thereafter. 
However, if deemed appropriate by the Board, the Company may return to
the publication of an estimated value based solely on the offering price of a
share of Common Stock or other securities if the Company has conducted another
offering within 18 months of the disclosure of an estimated per share
value.  The Company shall provide this
information in its annual report on Form 10-K.  The Company may also disseminate this
information by a posting on the web site maintained for the Company and the
Advisor and its affiliates at www.behringerharvard.com
or by other means.


 


Estimates based solely on
an offering price will be subject to numerous limitations.  For example, such estimates will not take
into account:


 


·                  individual or aggregate values of the Company’s
assets;


 


·                  real estate market fluctuations affecting the Company’s
assets generally;


 


·                  adverse or beneficial developments with respect to one
or more assets in the Company’s portfolio;


 


·                  the Company’s costs of the offering; or


 


·                  the Company’s costs of acquiring assets.


 


After the estimated value hereunder is based on
factors in addition to the most recent offering price of a share of Common
Stock or other security, the estimated value will not reflect developments that
occur after the most recent estimated valuation date.  Further, such valuations will be estimates
only and may be based upon a number of estimates, assumptions and opinions that
may not be or may later prove not to be accurate or complete, which could make
the estimated valuations incorrect.


 


With respect to any
estimate of the value of Common Stock made pursuant to this policy, there can
be no assurance that:


 


·                  the
estimated value per share would actually be realized by the Company’s
stockholders upon liquidation, bulk portfolio sales of the Company’s assets,
sale of the Company or listing of the Common Stock on an exchange;


 


·                  any
stockholder of the Company would be able to realize estimated share values in
any attempt to sell shares;


 


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·                  the
estimated value per share would be related to any individual or aggregated
value estimates or appraisals of the Company’s assets; or


 


·                  the
estimated value, or method used to estimate value, would be found by any
regulatory authority to comply with the ERISA, FINRA or other regulatory
requirements.


 


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