Exhibit 4.2


 


AMENDED AND RESTATED DISTRIBUTION REINVESTMENT PLAN


 


Behringer Harvard Opportunity REIT II, Inc.


 


Adopted on November 10, 2009


 


Behringer Harvard Opportunity REIT II, Inc., a Maryland
corporation (the “Company”), has adopted this 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
initial public offering (the “Initial Offering”) of the Shares reserved for
issuance under the Plan pursuant to the Company’s registration statement on Form S-11
(File No. 333-140887), as thereafter amended or supplemented (the “Registration
Statement”), 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 Initial
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 Initial 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.


 


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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 


 


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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. 
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.  The foregoing
choice of law shall not restrict the application of any state’s securities laws
(including the standards contained in the Statement of Policy Regarding Real
Estate Investment Trusts adopted by the North American Securities
Administrators Association on May 7, 2007) to the sale of shares to
its residents or within such state.


 


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