Exhibit
4.1


 


SECOND
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 second 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 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 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 (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 100%
of (A) the most recently disclosed Valuation less (B) any Valuation
Adjustment.  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 100% 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.  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 organizational 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 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)           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.


 


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(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 the Participant’s death prior to
receipt of notice in writing of the death and the expiration of 15 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 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 the Participant, the
Distributions received during the quarter, the number of Shares purchased
during the quarter and the calendar year pursuant to the Plan, the per Share
purchase price for the Shares and the total Shares purchased on behalf of the
Participant. 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. 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 the Plan.


 


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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, delivered by electronic means to any address specified by 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. 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.


 


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 


 


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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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