Exhibit 4.1


 


THIRD
AMENDED AND RESTATED


DISTRIBUTION
REINVESTMENT PLAN


 


Behringer Harvard Opportunity REIT I, Inc.


 


Adopted November 9, 2009


 


Behringer Harvard
Opportunity REIT I, Inc., a Maryland corporation (the “Company”), has
adopted this third amended and restated distribution reinvestment plan (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 such 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 such Distribution relates.  Subject to the preceding sentence, regardless
of the date of such election, a holder of Shares will become a Participant in
the Plan effective on the first day of the month following such election, and
the election will apply to all Distributions attributable to such 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 October 26,
2007, as thereafter amended or supplemented (the “DRP Offering”), the
Administrator will invest Distributions in Shares at a price equal to the
following, regardless of the price per Share paid by the Participant for the
Shares in respect of which the Distributions are paid: (1) prior to the
first valuation of the Shares conducted by the Board or a committee thereof (as
opposed to a valuation that is based solely on the offering price of securities
in the most recent offering)  (the “Initial
Board Valuation”) under the Company’s valuation policy, as such valuation
policy is amended from time to time (the “Valuation Policy”),  95% of (i) the most recently disclosed
estimated value per Share (the “Valuation”) as determined in accordance with
the Valuation Policy less (ii) the aggregate distributions per Share of
any net sale proceeds from the sale of one or more of the Company’s assets, or
other special distributions so designated by the Board, distributed to
stockholders after the Valuation was determined (the “Valuation Adjustment”);
or (2) on or after the Initial Board Valuation, 100% of (i) the most
recently disclosed Valuation as determined in accordance with the Valuation
Policy less (ii) any Valuation Adjustment. 
No advance notice of pricing pursuant to this Paragraph 3(a) shall
be required.


 


(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 (i) 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 (ii) 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 100%
of (A) the most recently disclosed Valuation less (B) any Valuation
Adjustment.  Shares purchased on the
Secondary Market as set forth in (ii) above


 

















 


will be purchased
at the then-prevailing market price, and the average price paid by the
Administrator for all such purchases for a single Distribution will be utilized
for purposes of determining the purchase price for Shares purchased under the
Plan on such investment date; however, in no event will the purchase price for
Shares purchased under the Plan be less than 100% of the market price for
Shares on such 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.  No advance notice of pricing pursuant to this
Paragraph 3(b) shall be required.


 


(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.  No advance
notice of pricing pursuant to this Paragraph 3(c) shall be required unless
the new price so determined varies more than 5% from the pricing that would
have resulted pursuant to Paragraphs 3(a) and 3(b) above, as
applicable, with respect to any Distribution reinvestment if the Board had not
so determined a new price, in which case 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.


 


(d)           No selling commissions,
dealer manager fees or organization and offering expenses 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 such
Participant.  A Participant’s account
shall be reduced as purchases of Shares are made on behalf of such Participant.


 


(f)            Distributions shall be
invested in Shares by the Administrator promptly following the payment date
with respect to such Distributions to the extent Shares are available for
purchase under the Plan.  If sufficient
Shares are not available, any such 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
such accounts will be paid to the Company and is and will become the property
of the Company.


 


(g)           The purchase of
fractional shares, computed to four decimal places, is a permissible and likely
result of participation in the Plan.  The
ownership of the Shares shall be reflected on the books of the Company or its
transfer agent.


 


(h)           A Participant will not
be able to acquire Shares under the Plan to the extent that such purchase would
cause the Participant to exceed the ownership limits set forth in the Company’s
charter, as amended, unless exempted by the Board.


 


(i)            The Shares issued
under the Plan will be uncertificated until the Board determines otherwise.


 


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 such Participant’s
death prior to receipt of notice in writing of such death and the expiration of
15 days from the date of receipt of such notice and (b) with respect to
the time and the prices at which Shares are purchased for a Participant.


 


2

















 


6.             Suitability.


 


(a)           Each Participant shall
notify the Administrator in the event that, at any time during his or her
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 then current prospectus, as supplemented, for the offering of
Shares under this Plan.


 


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 such Participant, the Distributions
received during the quarter, the number of Shares purchased during the quarter,
the per Share purchase price for such Shares and the total Shares purchased on
behalf of the Participant.  Each
statement shall also advise the Participant that, in accordance with Paragraph
6 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.  The reinvestment of Distributions under the
Plan does not relieve Participants of any taxes that may be payable as a result
of those Distributions and their reinvestment pursuant to the terms of this
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, such notice must be received by the
Administrator at least ten days prior to the last day of the month to which
such 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 such transferred
Shares as of the first day of the month in which such transfer is effective,
unless the transferee of such Shares in connection with such transfer
demonstrates to the Administrator that such 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 (i) a statement of account in
accordance with Paragraph 7 hereof, and (ii) 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 such 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 such 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 such 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, delivered by electronic means to any address specified
by 


 


3

















 


the Participant,
or given by including such information in a Current Report on Form 8-K or
in the Company’s annual or quarterly reports, all publicly filed with the
Commission.  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.  Such 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.


 


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.


 


4