EXHIBIT 10.2


 


AMENDED AND RESTATED

DISTRIBUTION REINVESTMENT PLAN


Behringer Harvard Opportunity REIT I, Inc.


Effective as of April 5, 2006


 


Behringer Harvard
Opportunity REIT I, 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.  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, and subject to Section 10(b) herein,
any participant in any previous or subsequent publicly offered limited
partnership, real estate investment trust or other real estate program
sponsored by the Company or its affiliates, including but not limited to
Behringer Harvard REIT I, Behringer Harvard Short-Term Opportunity Fund I LP
and the Behringer Harvard Mid-Term Value Enhancement Fund I LP (“Affiliated
Programs”), 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 or shares of stock
or units of limited partnership interest of an Affiliated Program (collectively
“Securities”) 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 Securities 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 or an Affiliated Program
with respect to Securities 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 Securities 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 the Company or board or general partner of an Affiliated Program, as
applicable.


 


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 of the Shares reserved
for issuance under the Plan pursuant to the Company’s prospectus dated September 20,
2005, as thereafter amended or supplemented (the “Initial Offering”), the
Administrator will invest Distributions in Shares at a price of $9.50 per Share
regardless of the price per Security paid by the Participant for the Securities
in respect of which the Distributions are paid.


 


(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 or the Nasdaq National Market System (if listed)
(collectively, the “Secondary Market”) and registered with the Commission for
resale pursuant to the Plan.  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 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 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.


 


(c)           If
a Participant designates in writing that such Participant’s broker who made the
initial sale of Securities to the Participant shall receive commissions for
purchases under the Plan, then such broker shall be paid a selling commission
not to exceed 1% of value of the Shares purchased under the Plan (reduced
commission rates will apply as set forth in paragraph (a) above).  No dealer manager fee will be paid for Shares
purchased pursuant to the Plan.  Each
Participant is permitted to identify, change or eliminate the name of his
account executive at a participating broker-dealer with respect to Shares
purchased pursuant to the Plan.  In the
event that no account executive is identified, or in the event that the account
executive is not employed by a broker-dealer having a valid selling agreement
with the dealer manager, no selling commission will be paid with respect to
such purchases.  If no such broker is
designated, or if the Participant designates only a portion of the selling
commission to be paid to the Participant’s broker, the amount that would have
been paid as a selling commission will be retained and used by the Company.


 


(d)           For
each Participant, the Administrator will maintain an account which 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.


 


(e)           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.


 


(f)            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 Securities owned by Participants and any additional payments
received from Participants pursuant to the Company’s automatic payment plan.


 


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 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 Securities.


 


(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 Securities.


 


7.             Reports to
Participants.  Within 60 days after
the end of each fiscal quarter, the Administrator will mail 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 pursuant to the Plan. 
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 Securities
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.           Reinvestment in
Subsequent Programs.  (a)  After
the termination of the Initial Offering, the Company may determine, in its sole
discretion, to cause the Administrator to provide to each Participant notice of
the opportunity to have some or all of such Participant’s Distributions (at the
discretion of the Administrator and, if applicable, the Participant) invested
through the Plan in any publicly offered limited partnership, real estate
investment trust or other real estate program sponsored by the Company or an Affiliated
Program (a “Subsequent Program”).  If the
Company makes such an election, Participants may invest Distributions in equity
securities issued by such Subsequent Program through the Plan only if the
following conditions are satisfied:


 


(i)            prior to the time of
such reinvestment, the Participant has received the final prospectus and any
supplements thereto offering interests in the Subsequent Program and such
prospectus allows investment pursuant to a distribution reinvestment plan;


 


(ii)           a registration
statement covering the interests in the Subsequent Program has been declared
effective under the Securities Act of 1933, as amended;


 


(iii)          the offering and sale of
such interests are qualified for sale under the applicable state securities
laws;


 


(iv)          the Participant executes
the subscription agreement included with the prospectus for the Subsequent
Program; and


 


(v)           the Participant
qualifies under applicable investor suitability standards as contained in the
prospectus for the Subsequent Program.


 


(b)           The
Company may determine, in its sole discretion, to cause the Administrator to
allow one or more participants of other publicly offered limited partnership,
real estate investment trust or other real estate program sponsored by the
Company or an Affiliated Program (a “Prior Program”) to become a “Participant.”  If the


 


3





















 


Company makes such an election, such Participants may invest
distributions received from the Prior Program in Shares through this Plan, if
the following conditions are satisfied:


 


(i)            Prior to the time of
such reinvestment, such Participant has received the final prospectus and
supplements thereto offering the Shares;


 


(ii)           A registration
statement covering the Shares has been declared effective under the Securities
Act of 1933, as amended;


 


(iii)          The offering and sale of
the Shares are qualified for sale under the applicable state securities laws;


 


(iv)          The Participant executes
the subscription agreement included with the Company’s prospectus; and


 


(v)           The participant
qualifies under applicable investor suitability standards as contained in the
Company’s prospectus.


 


11.           Termination.


 


(a)           A
Participant may terminate or modify his participation in the Plan at any time
by written notice 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 or inclusion of the
Shares for quotation on the Nasdaq National Market System, 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 quarter 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 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.


 


12.           State Regulatory
Restrictions.  The Administrator is
authorized to deny participation in the Plan to residents of any state which
imposes restrictions on participation in the Plan that conflict with the
general terms and provisions of this Plan, including, without limitation, any
general prohibition on the payment of broker-dealer commissions or dealer
manager fees for purchases under the Plan.


 


13.           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 Investor Services Department, 15601 Dallas
Parkway, Suite 600, Addison, Texas 75001, 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.  Each Participant
shall notify the Administrator promptly in writing of any change of address.


 


4





















 


14.           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 mailing 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.


 


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


 


16.           Participation by Limited Partners of
Behringer Harvard Opportunity OP I, LP.  For purposes of this Plan, “stockholders”
shall be deemed to include limited partners of Behringer Harvard Opportunity OP
I, LP (the “Partnership”), “Participants” shall be deemed to include limited
partners of the Partnership that elect to participate in the Plan, and “Distribution,”
when used with respect to a limited partner of the Partnership, shall mean cash
distributions on limited partnership interests held by such limited partner.


 


5