**Exhibit 4.1**

 

**THIRDAMENDED AND RESTATED**

**DISTRIBUTIONREINVESTMENT PLAN**

 

**Behringer Harvard Opportunity REIT I, Inc.**

 

**Adopted November 9, 2009**

 

Behringer HarvardOpportunity REIT I, Inc., a Maryland corporation (the “Company”), hasadopted 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 andconditions set forth below.

 

1.             Election toParticipate.  Subject to the termshereof, any purchaser of shares of common stock of the Company, par value$.0001 per share (the “Shares”), may become a Participant by making a writtenelection to participate on such purchaser’s Subscription Agreement at the timeof subscription for Shares.  Anystockholder who has not previously elected to participate in the Plan may soelect at any time by completing and executing an authorization form obtainedfrom the Administrator or any other appropriate documentation as may berequired by the Administrator. Participants generally are required to have the full amount of theircash distributions (other than “Designated Special Distributions” as definedbelow) with respect to all Shares owned by them reinvested pursuant to thePlan.  However, the Administrator shallhave the sole discretion, upon the request of a Participant, to accommodate aParticipant’s request for less than all of the Participant’s Shares to besubject to participation in the Plan.

 

2.             DistributionReinvestment Plan.  The Administratorwill receive all cash distributions (other than “Designated SpecialDistributions” as defined below) paid by the Company with respect to Shares ofParticipants (collectively, the “Distributions”).  Participation will commence with the nextDistribution payable after receipt of the Participant’s election pursuant toParagraph 1 hereof, provided it is received at least ten days prior to the lastday of the month to which such Distribution relates.  Subject to the preceding sentence, regardlessof the date of such election, a holder of Shares will become a Participant inthe Plan effective on the first day of the month following such election, andthe election will apply to all Distributions attributable to such month and toall months thereafter.  As used in thisPlan, the term “Designated Special Distributions” shall mean those cash orother distributions designated as Designated Special Distributions by the Boardof Directors of the Company (the “Board”).

 

3.             General Terms ofPlan Investments.  The Administratorwill apply all Distributions subject to this Plan, as follows:

 

(a)           Prior to thetermination of the Company’s public offering of the Shares reserved forissuance under the Plan pursuant to the Company’s prospectus dated October 26,2007, as thereafter amended or supplemented (the “DRP Offering”), theAdministrator will invest Distributions in Shares at a price equal to thefollowing, regardless of the price per Share paid by the Participant for theShares in respect of which the Distributions are paid: (1) prior to thefirst valuation of the Shares conducted by the Board or a committee thereof (asopposed to a valuation that is based solely on the offering price of securitiesin the most recent offering)****(the “InitialBoard Valuation”) under the Company’s valuation policy, as such valuationpolicy is amended from time to time (the “Valuation Policy”),  95% of (i) the most recently disclosedestimated value per Share (the “Valuation”) as determined in accordance withthe Valuation Policy less (ii) the aggregate distributions per Share ofany net sale proceeds from the sale of one or more of the Company’s assets, orother special distributions so designated by the Board, distributed tostockholders after the Valuation was determined (the “Valuation Adjustment”);or (2) on or after the Initial Board Valuation, 100% of (i) the mostrecently disclosed Valuation as determined in accordance with the ValuationPolicy less (ii) any Valuation Adjustment. No advance notice of pricing pursuant to this Paragraph 3(a) shallbe required.

 

(b)           After termination ofthe DRP Offering, the Administrator will invest Distributions in Shares thatmay (but are not required to) be supplied from either (i) Sharesregistered 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 Administratorfor the Plan in a secondary market (if available) or on a national stockexchange (if listed) (collectively, the “Secondary Market”) and registered withthe Commission for resale pursuant to the Plan. Shares registered in a Future Registration that are not purchased by theAdministrator in the Secondary Market will be issued at a price equal to 100%of (A) the most recently disclosed Valuation less (B) any ValuationAdjustment.  Shares purchased on theSecondary Market as set forth in (ii) above

 

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will be purchasedat the then-prevailing market price, and the average price paid by theAdministrator for all such purchases for a single Distribution will be utilizedfor purposes of determining the purchase price for Shares purchased under thePlan on such investment date; however, in no event will the purchase price forShares purchased under the Plan be less than 100% of the market price forShares on such investment date.  Sharesacquired by the Administrator on the Secondary Market or registered in a FutureRegistration for use in the Plan may be at prices lower or higher than the perShare price that will be paid for the Shares purchased for the Plan pursuant tothe DRP Offering and any subsequent offering. If the Administrator acquires Shares in the Secondary Market for use inthe Plan, the Administrator shall use reasonable efforts to acquire Shares foruse in the Plan at the lowest price then reasonably available.  However, the Administrator does not in anyrespect guaranty or warrant that the Shares so acquired and purchased by theParticipants in the Plan will be at the lowest possible price.  Further, irrespective of the Administrator’sability to acquire Shares in the Secondary Market or the Company’s ability tocomplete a Future Registration for shares to be used in the Plan, neither theAdministrator nor the Company is in any way obligated to do either.  No advance notice of pricing pursuant to thisParagraph 3(b) shall be required.

 

(c)           Regardless of thepricing determined pursuant to Paragraphs 3(a) and 3(b) above, theBoard may determine, from time to time, in its sole discretion, the price atwhich the Administrator will invest Distributions in Shares.  No advancenotice of pricing pursuant to this Paragraph 3(c) shall be required unlessthe new price so determined varies more than 5% from the pricing that wouldhave resulted pursuant to Paragraphs 3(a) and 3(b) above, asapplicable, with respect to any Distribution reinvestment if the Board had notso determined a new price, in which case the Company shall deliver a noticeregarding the new price to each Participant at least 30 days’ prior to theeffective date of the new price.

 

(d)           No selling commissions,dealer manager fees or organization and offering expenses will be paid forShares purchased pursuant to the Plan.

 

(e)           For each Participant,the Administrator will maintain an account that shall reflect for each monththe Distributions received by the Administrator on behalf of suchParticipant.  A Participant’s accountshall be reduced as purchases of Shares are made on behalf of such Participant.

 

(f)            Distributions shall beinvested in Shares by the Administrator promptly following the payment datewith respect to such Distributions to the extent Shares are available forpurchase under the Plan.  If sufficientShares are not available, any such funds that have not been invested in Shareswithin 30 days after receipt by the Administrator will be distributed to theParticipants.  Any interest earned onsuch accounts will be paid to the Company and is and will become the propertyof the Company.

 

(g)           The purchase offractional shares, computed to four decimal places, is a permissible and likelyresult of participation in the Plan.  Theownership of the Shares shall be reflected on the books of the Company or itstransfer agent.

 

(h)           A Participant will notbe able to acquire Shares under the Plan to the extent that such purchase wouldcause the Participant to exceed the ownership limits set forth in the Company’scharter, as amended, unless exempted by the Board.

 

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

 

4.             Distribution ofFunds.  In making purchases forParticipants’ accounts, the Administrator may commingle Distributionsattributable to Shares owned by Participants and any additional paymentsreceived from Participants in respect of the purchase of Shares.

 

5.             Absence ofLiability.  Neither the Company northe Administrator shall have any responsibility or liability as to the value ofthe Shares, any change in the value of the Shares acquired for the Participant’saccount, or the rate of return earned on, or the value of, the interest-bearingaccounts in which Distributions are invested. Neither the Company nor the Administrator shall be liable for any actdone in good faith, or for any good faith omission to act, including, withoutlimitation, any claims of liability (a) arising out of the failure toterminate a Participant’s participation in the Plan upon such Participant’sdeath prior to receipt of notice in writing of such death and the expiration of15 days from the date of receipt of such notice and (b) with respect tothe time and the prices at which Shares are purchased for a Participant.

 

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6.             Suitability.

 

(a)           Each Participant shallnotify the Administrator in the event that, at any time during his or herparticipation in the Plan, there is any material change in the Participant’sfinancial condition or inaccuracy of any representation under the SubscriptionAgreement for the Participant’s initial purchase of Shares.

 

(b)           For purposes of thisParagraph 6, a material change shall include any anticipated or actual decreasein net worth or annual gross income or any other change in circumstances thatwould cause the Participant to fail to meet the suitability standards set forthin the Company’s then current prospectus, as supplemented, for the offering ofShares under this Plan.

 

7.             Reports toParticipants.  Within 60 days afterthe end of each fiscal quarter, the Administrator will deliver to each Participanta statement of account describing, as to such Participant, the Distributionsreceived during the quarter, the number of Shares purchased during the quarter,the per Share purchase price for such Shares and the total Shares purchased onbehalf of the Participant.  Eachstatement shall also advise the Participant that, in accordance with Paragraph6 hereof, the Participant is required to notify the Administrator in the eventthat there is any material change in the Participant’s financial condition orif any representation made by the Participant under the Subscription Agreementfor the Participant’s initial purchase of Shares becomes inaccurate.  Tax information regarding a Participant’sparticipation in the Plan will be sent to each Participant by the Company orthe Administrator at least annually.

 

8.             No Drawing.  No Participant shall have any right to drawchecks or drafts against the Participant’s account or give instructions to theCompany or the Administrator except as expressly provided herein.

 

9.             Taxes.  The reinvestment of Distributions under thePlan does not relieve Participants of any taxes that may be payable as a resultof those Distributions and their reinvestment pursuant to the terms of thisPlan.

 

10.           Termination.

 

(a)           A Participant mayterminate or modify his participation in the Plan at any time by written noticemailed to the Administrator.  To beeffective for any Distribution, such notice must be received by theAdministrator at least ten days prior to the last day of the month to whichsuch Distribution relates.

 

(b)           Prior to the listing ofthe Shares on a national stock exchange, a Participant’s transfer of Shareswill terminate participation in the Plan with respect to such transferredShares as of the first day of the month in which such transfer is effective,unless the transferee of such Shares in connection with such transferdemonstrates to the Administrator that such transferee meets the requirementsfor participation hereunder and affirmatively elects participation by deliveringan executed authorization form or other instrument required by theAdministrator.

 

(c)           The Administrator mayterminate a Participant’s individual participation in the Plan, and the Companymay suspend or terminate the Plan itself, at any time by ten days’ priorwritten notice to a Participant, or to all Participants, as the case may be.

 

(d)           After termination ofthe Plan or termination of a Participant’s participation in the Plan, theAdministrator will send to each Participant (i) a statement of account inaccordance with Paragraph 7 hereof, and (ii) a check for the amount of anyDistributions in the Participant’s account that have not been invested inShares.  Any future Distributions withrespect to such former Participant’s Shares made after the effective date ofthe termination of the Participant’s participation in the Plan will be sentdirectly to the former Participant or to such other party as the Participanthas designated pursuant to an authorization form or other documentationsatisfactory to the Administrator.

 

11.           State RegulatoryRestrictions.  The Administrator isauthorized to deny participation in the Plan to residents of any state thatimposes restrictions on participation in the Plan that conflict with thegeneral terms and provisions of this Plan.

 

12.           Notice.  Any notice or other communication required orpermitted to be given by any provision of this Plan shall be in writing and, ifto the Administrator, addressed to Behringer Harvard Investment Services, P.O. Box219768, Kansas City, MO 64121-9768, or such other address as may be specifiedby the Administrator by written notice to all Participants.  Notices to a Participant may be given byletter addressed to the Participant at the Participant’s last address of recordwith the Administrator, delivered by electronic means to any address specifiedby 

 

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the Participant,or given by including such information in a Current Report on Form 8-K orin the Company’s annual or quarterly reports, all publicly filed with theCommission.  Each Participant shallnotify the Administrator promptly in writing of any change of address.

 

13.           Amendment.  The terms and conditions of this Plan may beamended or supplemented by the Company at any time, including but not limitedto an amendment to the Plan to substitute a new Administrator to act as agentfor the Participants, by delivering an appropriate notice to each Participantat least 30 days prior to the effective date of the amendment or supplement.  Such amendment or supplement shall be deemedconclusively accepted by each Participant except those Participants from whomthe Administrator receives written notice of termination prior to the effectivedate thereof.

 

In the event that thePlan is amended pursuant to this Paragraph 13 or suspended pursuant toParagraph 10(c) hereof, each Participant shall remain a Participant in thePlan receiving cash distributions during such period that the Plan is suspendedor the Shares cannot otherwise be distributed hereunder, unless the Participantterminates his participation in accordance with the procedures set forth underParagraph 10(a) above.  Once suchsuspension or other inability to distribute Shares hereunder ceases, theParticipant will then receive Shares hereunder.

 

14.           Governing Law.  **THIS****PLAN AND PARTICIPANT’S ELECTION TOPARTICIPATE IN THE PLAN SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.**

 

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