Exhibit 4.4


 


AMENDED AND RESTATED


SHARE REDEMPTION PROGRAM


OF


BEHRINGER HARVARD MULTIFAMILY
REIT I, INC.


 


This amended and restated share redemption program, effective as of November 11,
2009 (our “Program”), is intended to provide limited interim liquidity for our
stockholders until a bona fide secondary market develops for our shares of
common stock (the “Shares”).  No such
market presently exists, and we can provide no assurance that any market for
the Shares will ever develop.


 


Prior to the time that a bona fide secondary market for our Shares has
developed, stockholders who meet the applicable requirements, as described
herein, may receive the benefit of limited liquidity by presenting for
redemption all or a portion of their Shares to us at any time in accordance
with the procedures outlined herein.  At
that time, we may, subject to the conditions and the Redemption Limitations
described below, redeem for cash such Shares. 
The terms on which we redeem Shares may differ between redemptions upon
the death or “qualifying disability” (as defined herein) of the stockholder or
requests for redemption sought upon a stockholder’s confinement to a long-term
care facility (collectively referred to herein as “Exceptional Redemptions”)
and all other redemptions (referred to herein as “Ordinary Redemptions”).


 


Ordinary
Redemptions


 


In the case of Ordinary Redemptions, the purchase price per Share for
the redeemed Shares will equal 90% of (i) 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, less (ii) the aggregate distributions per Share
of any net sale proceeds from the sale of one or more of our assets, or other
special distributions so designated by our Board of Directors (our “Board”),
distributed to stockholders after the Valuation was determined (the “Valuation
Adjustment”); provided, however, that the purchase price per Share shall not
exceed: (1) prior to the first Valuation conducted by the Board, or a
committee thereof (the “Initial Board Valuation”), under the Valuation Policy,
90% of (i) the Original Share Price (as defined herein) less (ii) the
aggregate distributions per Share of any net sale proceeds from the sale of one
or more of our assets, or other special distributions so designated by the
Board, distributed to stockholders prior to the redemption date (the “Special Distributions”);
or (2) on or after the Initial Board Valuation, the Original Share Price
less any Special Distributions.  As used
herein “Original Share Price” means the average price per Share the original
purchaser or purchasers of Shares paid to us for all of his or her Shares (as
adjusted for any stock dividends, combinations, splits, recapitalizations and
the like with respect to our common stock).


 


Exceptional
Redemptions


 


In addition, and subject to the conditions and limitations described
below, we may redeem Shares upon the death of a stockholder who is a natural
person, including Shares held by the stockholder through a revocable grantor
trust, or an IRA or other retirement or profit-sharing plan, after receiving
written notice from the estate of the stockholder, the recipient of the Shares
through bequest or inheritance, or, in the case of a revocable grantor trust,
the trustee of the trust, having the sole ability to request redemption on
behalf of the trust.  We must, however,
receive the written notice within one year after the death of the
stockholder.  Requests not received
within the one-year period will not be eligible to be treated as a redemption
request in connection with the death of a stockholder, but instead will be
treated as an Ordinary Redemption.  If
spouses are joint registered holders of Shares, the request to redeem the
Shares may be made if either of the registered holders dies.  If the stockholder is not a natural person,
such as a trust (other than a revocable grantor trust), partnership,
corporation or other similar entity, the right of redemption upon death does
not apply.


 


Furthermore, and subject to the conditions and limitations described
below, we may redeem Shares held by a stockholder who is a natural person with
a qualifying disability, or upon confinement to a long-term care facility,
including Shares held by the stockholder through a revocable grantor trust, or
an IRA or other retirement or profit-sharing plan, after receiving written
notice from the stockholder, provided that the condition causing the qualifying
disability was not pre-existing on the date that the stockholder became a
stockholder or that the stockholder seeking redemption was not confined to a
long-term care facility on the date the person became a stockholder.  We must, however, receive the written notice
within one year after the determination of the stockholder’s qualifying
disability or with respect to redemptions sought upon a stockholder’s
confinement to a long-term care facility, within one year of the earlier of (1) the
one year anniversary of the stockholder’s admittance to the long-term care
facility or (2) the


 

















 


date of the
determination of the stockholder’s indefinite confinement to the long-term care
facility by a licensed physician. 
Requests not received within the one-year period will not be eligible to
be treated as a redemption request in connection with a qualifying disability
of a stockholder or confinement to a long-term care facility, but instead will
be treated as an Ordinary Redemption.  If
the stockholder is not a natural person, such as a trust (other than a
revocable grantor trust), partnership, corporation or other similar entity, the
right of redemption described in this paragraph does not apply.


 


In order for a disability to be considered a “qualifying disability,” (1) the
stockholder must receive a determination of disability based upon a physical or
mental condition or impairment arising after the date the stockholder acquired
the Shares to be redeemed, and (2) the determination of disability must be
made by the governmental agency responsible for reviewing the disability
retirement benefits that the stockholder could be eligible to receive (the “applicable
governmental agency”).  The “applicable
governmental agencies” are limited to the following: (a) if the
stockholder paid Social Security taxes and therefore could be eligible to
receive Social Security disability benefits, then the applicable governmental
agency is the Social Security Administration or the agency charged with
responsibility for administering Social Security disability benefits at that time
if other than the Social Security Administration; (b) if the stockholder
did not pay Social Security benefits and therefore could not be eligible to
receive Social Security disability benefits, but the stockholder could be
eligible to receive disability benefits under the Civil Service Retirement
System (CSRS), then the applicable governmental agency is the U.S. Office of
Personnel Management or the agency charged with responsibility for
administering CSRS benefits at that time if other than the Office of Personnel
Management; or (c) if the stockholder did not pay Social Security taxes
and therefore could not be eligible to receive Social Security benefits but
suffered a disability that resulted in the stockholder’s discharge from
military service under conditions that were other than dishonorable and
therefore could be eligible to receive military disability benefits, then the
applicable governmental agency is the Veteran’s Administration or the agency
charged with the responsibility for administering military disability benefits
at that time if other than the Veteran’s Administration.


 


Disability determinations by governmental agencies for purposes other
than those listed above, including but not limited to worker’s compensation
insurance, administration or enforcement of the Rehabilitation Act or Americans
with Disabilities Act, or waiver of insurance premiums, will not entitle a
stockholder to the terms available for Exceptional Redemptions, unless
permitted in the discretion of our Board. 
Redemption requests following an award by the applicable governmental
agency of disability benefits must be accompanied by (1) the stockholder’s
initial application for disability benefits and (2) a Social Security
Administration Notice of Award, a U.S. Office of Personnel Management
determination of disability under CSRS, a Veteran’s Administration record of
disability-related discharge or such other documentation issued by the
applicable governmental agency that we deem acceptable and demonstrates an
award of the disability benefits.


 


We understand that the following disabilities do not entitle a worker
to Social Security disability benefits:


 


·                  disabilities occurring after the legal retirement age;


 


·                  temporary disabilities; and


 


·                  disabilities that do not render a worker incapable of
performing substantial gainful activity.


 


Therefore,
these disabilities will not qualify for the terms available for Exceptional
Redemptions.  However, where a
stockholder requests the redemption of his or her Shares due to a disability
and the stockholder does not have a “qualifying disability” under the terms
described above, but has become subject to similar circumstances, our Board may
redeem the stockholder’s Shares, in its sole discretion, on the terms available
for Exceptional Redemptions.


 


With respect to Exceptional Redemptions sought upon a stockholder’s
confinement to a long-term care facility, a “long-term care facility” shall
mean an institution that: (1) either (a) is approved by Medicare as a
provider of skilled nursing care or (b) is licensed as a skilled nursing
home by the state or territory in which it is located (it must be within the
United States, Puerto Rico, or U.S. Virgin Islands) and (2) meets all of
the following requirements: (a) its main function is to provide skilled,
intermediate or custodial nursing care; (b) it provides continuous room
and board to three or more persons; (c) it is supervised by a registered
nurse or licensed practical nurse; (d) it keeps daily medical records of
all medication dispensed; and (e) its primary service is other than to
provide housing for residents.  A
stockholder seeking an Exceptional Redemption of his or her Shares due to
confinement to a long-term care facility must submit a written statement from a
licensed physician certifying either (1) the stockholder’s continuous and
continuing confinement to a long-term care facility over the course of the last


 


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year or (2) that
the licensed physician has determined that the stockholder will be indefinitely
confined to a long-term care facility. 
Notwithstanding the above, where a stockholder requests an Exceptional
Redemption of his or her Shares due to confinement to a long-term care facility
but does not meet the definition set forth above, but has become subject to
similar circumstances, our Board may redeem the stockholder’s Shares, in the
Board’s sole discretion, on the terms available for Exceptional Redemptions.


 


In the case of Exceptional Redemptions, the purchase price per Share
will be equal to: (1) prior to the Initial Board Valuation, the Original
Share Price less any Special Distributions; or (2) on or after the Initial
Board Valuation, the most recently disclosed Valuation less any Valuation
Adjustment, provided, however, that the purchase price per Share shall not
exceed the Original Share Price less any Special Distributions.


 


General Terms
for Redemption


 


Our Program, whether for Ordinary Redemptions or Exceptional
Redemptions, is available only for stockholders who have held their Shares for
at least one year and who acquired their Shares directly from us or the
transferees mentioned below, and is not intended to provide liquidity to any
stockholder who acquired his or her Shares by purchase from another
stockholder.  In connection with a
request for redemption, the stockholder or his or her estate, heir or
beneficiary will be required to certify to us that the stockholder either (1) acquired
the Shares requested to be repurchased directly from us or (2) acquired
the Shares from the original subscriber by way of a bona fide gift not for
value to, or for the benefit of, a member of the subscriber’s immediate or
extended family (including the subscriber’s spouse, parents, siblings, children
or grandchildren and including relatives by marriage) or through a transfer to
a custodian, trustee or other fiduciary for the account of the subscriber or
members of the subscriber’s immediate or extended family in connection with an
estate planning transaction, including by bequest or inheritance upon death or
operation of law.


 


For purposes of the one-year holding period, limited partners of
Behringer Harvard Multifamily OP I LP (“Behringer Harvard Multifamily OP I”)
who exchange their limited partnership units for Shares will be deemed to have
owned their Shares as of the date they were issued their limited partnership
units in Behringer Harvard Multifamily OP I.


 


We will not redeem Shares that are subject to liens or other
encumbrances until the stockholder presents evidence that the liens or
encumbrances have been removed.  If any
Shares subject to a lien are inadvertently redeemed or we shall otherwise be
required to pay to any other party all or any amount in respect of the value of
redeemed Shares, then the recipient of amounts in respect of redemption shall
repay to us the amount paid for such redemption up to the amount we are
required to pay to such other party.


 


Notwithstanding the redemption prices established above, the Board may
determine, whether pursuant to formulae or processes approved by our Board or
otherwise set by our Board, the redemption price of the Shares, which may
differ between Ordinary Redemptions and Exceptional Redemptions; provided,
however, that we must provide at least 30 days’ notice to stockholders before applying
the new price that is set pursuant to this sentence to either Ordinary
Redemptions or Exceptional Redemptions.


 


Any Shares approved for redemption will be redeemed on a periodic basis
as determined from time to time by our Board, and no less frequently than
annually. We will not redeem, during any twelve-month period, more than 5% of
the weighted average number of Shares outstanding during the twelve-month
period immediately prior to the date of redemption (the “5% Limitation”). Generally,
the cash available for redemption on any particular date will be limited to the
proceeds from our distribution reinvestment plan (our “DRP”) during the period consisting
of the preceding four fiscal quarters for which financial statements are
available, less any cash already used for redemptions during the same period, plus,
if we had positive operating cash flow during such preceding four fiscal
quarters, 1% of all operating cash flow during such preceding four fiscal
quarters (the “Funding Limitation” and, together with the 5% Limitation, the “Redemption
Limitations”).  The Redemption
Limitations apply to all redemptions, whether Ordinary or Exceptional
Redemptions.


 


Our Board reserves the right in its sole discretion at any time and
from time to time to (1) waive the one-year holding requirement applicable
to exigent circumstances such as bankruptcy, a mandatory distribution
requirement under a stockholder’s IRA or with respect to Shares purchased under
or through our DRP, (2) reject any request for redemption, (3) change
the purchase price for redemptions, (4) limit the funds to be used for
redemptions hereunder or otherwise change the Redemption Limitations or (5) amend,
suspend (in whole or in part) or terminate the Program.  If we suspend our Program (in whole or in
part), except as otherwise provided by the Board, until the suspension is
lifted, we will not accept any requests for redemption in respect of Shares to
which such suspension


 


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applies in
subsequent periods and any such requests and all pending requests that are
subject to the suspension will not be honored or retained, but will be returned
to the requestor.  Our advisor and its
affiliates will defer their own redemption requests, if any, until all other
requests for redemption have been satisfied in any particular period.  Provided that a request for an Exceptional
Redemption is made within one year of the event giving rise to eligibility for
an Exceptional Redemption, we will waive the one-year holding requirement (a) upon
the request of the estate, heir or beneficiary of a deceased stockholder or (b) upon
the qualifying disability of a stockholder or upon a stockholder’s confinement
to a long-term care facility, provided that the condition causing such
disability or need for long-term care was not preexisting on the date that such
person became a stockholder.


 


A request for redemption may be withdrawn in whole or in part by a
stockholder in writing at any time prior to redemption.  We cannot guarantee that we will accommodate
all requests made in any particular redemption period.  If we do not redeem all Shares presented for
redemption during any period, the stockholder or his or her estate, heir or
beneficiary can (1) withdraw the request for redemption, or (2) if we
have not suspended the redemption of the Shares that are subject to the
redemption request (in which case the request will be returned as provided
above), ask that we honor the request during the next period in which requests
are considered.  Further, if we do not
redeem all Shares presented for redemption during any period in which we are
redeeming Shares, then all Shares will be redeemed on a pro rata basis during
the relevant period.  Any portion of a
redemption request that is not honored will be automatically treated as a
request for redemption during the next period in which requests will be
considered, unless the stockholder seeking redemption affirmatively asks us to
withdraw that portion of the request. 
The stockholder will then be required to resubmit a request for
redemption request.  Unless otherwise
determined by the Board, we will not retain any redemption requests that are
withdrawn.


 


In general, a stockholder or his or her estate, heir or beneficiary may
present to us fewer than all of the Shares then owned for redemption, except
that the minimum number of Shares that must be presented for redemption must be
at least 25% of the holder’s Shares.  If,
however, redemption is being requested (1) within the one-year timeframe
discussed above, on behalf of a deceased stockholder or by a stockholder with a
qualifying disability or who is confined to a long-term care facility or (2) by
a stockholder due to other exigent circumstances, such as bankruptcy or a
mandatory distribution requirement under such stockholder’s IRA, a minimum of
10% of the stockholder’s Shares may be presented for redemption; provided,
however, that any future redemption request by the stockholder must present for
redemption at least 25% of the stockholder’s remaining Shares.  Except in the case of redemptions due to a
mandatory distribution under a stockholder’s IRA, we will treat a redemption
request that would cause a stockholder to own fewer than 200 Shares as a
request to redeem all of his or her Shares, and we will vary from pro rata
treatment of redemptions as necessary to avoid having stockholders holding
fewer than 200 Shares.  In the case of
stockholders who undertake a series of partial redemptions, appropriate
adjustments in the purchase price for the redeemed Shares will be made so that
the blended price per Share for all redeemed Shares reflects the Original Share
Price of all Shares owned by the stockholder through the dates of each
redemption.


 


A stockholder who wishes to have Shares redeemed must mail or deliver
to us a written request on a form provided by us and executed by the
stockholder, its trustee or authorized agent. 
An estate, heir or beneficiary that wishes to have Shares redeemed
following the death of a stockholder must mail or deliver to us a written
request on a form provided by us, including evidence acceptable to our Board of
the death of the stockholder, and executed by the executor or executrix of the
estate, the heir or beneficiary, or their trustee or authorized agent.  A stockholder requesting the redemption of
his or her Shares due to a qualifying disability or confinement to a long-term
care facility must mail or deliver to us a written request on a form provided
by us, including the evidence and documentation described above, or evidence
acceptable to our Board of the stockholder’s permanent disability or
confinement to a long-term care facility. 
If the Shares are to be redeemed under the conditions outlined herein,
we will forward the documents necessary to affect the redemption, including any
signature guaranty we may require.


 


The effective date of any redemption (the “Effective Date”), and the
date on which the purchase price per Share is determined, calculated in
accordance with the procedures discussed herein, will be the last day of the
calendar month preceding the date that the Board accepts the request for
redemption (the “Determination Date”). 
Commencing on the Effective Date, any Shares accepted for redemption
will no longer be deemed outstanding and will no longer be eligible to receive
distributions.  Our Board will consider
only properly completed redemption requests that we received on or before the
end of the period ending no later than the last day of the calendar month preceding
the Determination Date.  Payment for the
Shares so approved for redemption, assuming that we have not exceeded the
Redemption Limitations and that all necessary conditions have been satisfied,
will be made no later than 15 days after the Determination Date.


 


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Subject to the restrictions in Behringer Harvard Multifamily OP I’s
limited partnership agreement and any other applicable agreement, we may cause
Behringer Harvard Multifamily OP I to offer to its limited partners (other than
our subsidiaries, BHMF, Inc. and BHMF Business Trust) a partnership unit
redemption program equivalent to our Program. 
Any units redeemed under the partnership unit redemption program will be
redeemed upon terms substantially equivalent to the redemption terms of our
Program and will be treated as Shares for purposes of calculating the
Redemption Limitations.


 


Neither our advisor, any member of our Board nor any of their
affiliates will receive any fee on the repurchase of Shares by us pursuant to
our Program. The Shares we purchase under our Program will be cancelled, and
will have the status of authorized but unissued Shares.  We will not reissue repurchased Shares unless
they are first registered with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and under appropriate state securities laws
or otherwise issued in compliance with or exemption from registration under
these laws.


 


The foregoing provisions regarding our Program in no way limit our
ability to repurchase Shares or other of our securities or those of Behringer
Harvard Multifamily OP I from holders thereof by any other legally available
means for any reason that the advisor or our Board, each in its discretion, deems
to be in our best interest.


 


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