**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 Marylandcorporation (the “Company”), has adopted this amended and restated distributionreinvestment plan (the “Plan”), administered by the Company or an unaffiliatedthird party (the “Administrator”), as agent for participants in the Plan (“Participants”),on the terms and conditions set forth below.

 

1.             ELECTION TO PARTICIPATE.  Subject tothe terms hereof, any purchaser of shares of common stock of the Company, parvalue $.0001 per share (the “Shares”), may become a Participant by making awritten election to participate on such purchaser’s Subscription Agreement atthe time of 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.             DISTRIBUTION REINVESTMENT PLAN. The Administrator will receive all cash distributions (other than “DesignatedSpecial Distributions” as defined below) paid by the Company with respect toShares of Participants (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 OF PLAN INVESTMENTS. The Administrator will apply all Distributions subject to this Plan, asfollows:

 

(a)           Prior to the termination of the Company’sinitial public offering (the “Initial Offering”) of the Shares reserved forissuance under the Plan pursuant to the Company’s registration statement on Form S-11(File No. 333-140887), as thereafter amended or supplemented (the “RegistrationStatement”), the Administrator will invest Distributions in Shares at a priceequal to the following, regardless of the price per Share paid by theParticipant for the Shares in respect of which the Distributions are paid: (1) priorto the first valuation of the Shares conducted by the Board or a committeethereof (as opposed to a valuation that is based solely on the offering priceof securities in 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 of the InitialOffering, the Administrator will invest Distributions in Shares that may (butare not required to) be supplied from either (i) Shares registered withthe Securities and Exchange Commission (the “Commission”) pursuant to aneffective registration statement for Shares for use in the Plan (a “FutureRegistration”) or (ii) Shares purchased by the Administrator for the Planin a secondary market (if available) or on a national stock exchange (iflisted) (collectively, the “Secondary Market”) and registered with the 

 

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Commission for resale pursuant to the Plan.  Shares registered in a Future Registration thatare not purchased by the Administrator in the Secondary Market will be issuedat 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) abovewill be purchased at the then-prevailing market price, and the average pricepaid by the Administrator for all such purchases for a single Distribution willbe utilized for purposes of determining the purchase price for Shares purchasedunder the Plan on such investment date; however, in no event will the purchaseprice for Shares purchased under the Plan be less than 100% of the market pricefor Shares on such investment date. Shares acquired by the Administrator on the Secondary Market orregistered in a Future Registration for use in the Plan may be at prices loweror higher than the per Share price that will be paid for the Shares purchasedfor the Plan pursuant to the Initial Offering and any subsequent offering.  If the Administrator acquires Shares in theSecondary Market for use in the Plan, the Administrator shall use reasonableefforts to acquire Shares for use in the Plan at the lowest price thenreasonably available.  However, theAdministrator does not in any respect guaranty or warrant that the Shares soacquired and purchased by the Participants in the Plan will be at the lowestpossible price.  Further, irrespective ofthe Administrator’s ability to acquire Shares in the Secondary Market or theCompany’s ability to complete a Future Registration for shares to be used inthe Plan, neither the Administrator nor the Company is in any way obligated todo either.  No advance notice of pricingpursuant to this Paragraph 3(b) shall be required.

 

(C)           Regardless of the pricing determinedpursuant 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 Administratorwill invest Distributions in Shares.  No advance notice of pricingpursuant to this Paragraph 3(c) shall be required unless the new price sodetermined varies more than 5% from the pricing that would have resultedpursuant to Paragraphs 3(a) and 3(b) above, as applicable, withrespect to any Distribution reinvestment if the Board had not so determined anew price, in which case the Company shall deliver a notice regarding the newprice to each Participant at least 30 days’ prior to the effective date of thenew price.

 

(d)           No selling commissions, dealer managerfees or organization and offering expenses will be paid for Shares purchasedpursuant to the Plan.

 

(e)           For each Participant, the Administratorwill maintain an account that shall reflect for each month the Distributionsreceived by the Administrator on behalf of such Participant.  A Participant’s account shall be reduced aspurchases of Shares are made on behalf of such Participant.

 

(f)            Distributions shall be invested in Sharesby the Administrator promptly following the payment date with respect to suchDistributions to the extent Shares are available for purchase under thePlan.  If sufficient Shares are notavailable, any such funds that have not been invested in Shares within 30 daysafter receipt by the Administrator will be distributed to the Participants.  Any interest earned on such accounts will bepaid 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 ofparticipation in the Plan.  The ownershipof the Shares shall be reflected on the books of the Company or its transferagent.

 

(h)           A Participant will not be able to acquireShares under the Plan to the extent that such purchase would cause theParticipant 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 beuncertificated until the Board determines otherwise.

 

4.             DISTRIBUTION OF FUNDS.  In makingpurchases for Participants’ accounts, the Administrator may commingleDistributions attributable to Shares owned by Participants and any additionalpayments received from Participants in respect of the purchase of Shares.

 

5.             ABSENCE OF LIABILITY.  Neither theCompany nor the Administrator shall have any responsibility or liability as tothe value of the Shares, any change in the value of the Shares acquired for theParticipant’s account, or the rate of return earned on, or the value of, theinterest-bearing accounts in which Distributions are invested.  Neither the Company nor the Administratorshall be liable for any act done in good faith, or for any good faith omissionto act, including, without limitation, any claims of liability (a) arisingout of the failure to terminate a Participant’s participation in the Plan uponsuch Participant’s death prior to receipt of notice in writing of such deathand the expiration of 15 days from the date of receipt of such notice and (b) withrespect to the time and the prices at which Shares are purchased for aParticipant.

 

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6.             SUITABILITY.

 

(a)           Each Participant shall notify theAdministrator in the event that, at any time during his or her participation inthe Plan, there is any material change in the Participant’s financial conditionor inaccuracy of any representation under the Subscription Agreement for theParticipant’s initial purchase of Shares.

 

(b)           For purposes of this Paragraph 6, amaterial change shall include any anticipated or actual decrease in net worthor annual gross income or any other change in circumstances that would causethe Participant to fail to meet the suitability standards set forth in theCompany’s then current prospectus, as supplemented, for the offering of Sharesunder this Plan.

 

7.             REPORTS TO PARTICIPANTS.  Within 60days after the end of each fiscal quarter, the Administrator will deliver toeach Participant a statement of account describing, as to such Participant, theDistributions received during the quarter, the number of Shares purchasedduring the quarter, the per Share purchase price for such Shares and the totalShares purchased on behalf of the Participant. Each statement shall also advise the Participant that, in accordancewith Paragraph 6 hereof, the Participant is required to notify theAdministrator in the event that there is any material change in the Participant’sfinancial condition or if any representation made by the Participant under theSubscription Agreement for the Participant’s initial purchase of Shares becomesinaccurate.  Tax information regarding aParticipant’s participation in the Plan will be sent to each Participant by theCompany or the Administrator at least annually.

 

8.             NO DRAWING.  NoParticipant shall have any right to draw checks or drafts against theParticipant’s account or give instructions to the Company or the Administratorexcept as expressly provided herein.

 

9.             TAXES.  Thereinvestment of Distributions under the Plan does not relieve Participants ofany taxes that may be payable as a result of those Distributions and theirreinvestment pursuant to the terms of this Plan.

 

10.           TERMINATION.

 

(a)           A Participant may terminate or modify hisparticipation in the Plan at any time by written notice mailed to theAdministrator.  To be effective for anyDistribution, such notice must be received by the Administrator at least tendays prior to the last day of the month to which such Distribution relates.

 

(b)           Prior to the listing of the Shares on anational stock exchange, a Participant’s transfer of Shares will terminateparticipation in the Plan with respect to such transferred Shares as of thefirst day of the month in which such transfer is effective, unless thetransferee of such Shares in connection with such transfer demonstrates to theAdministrator that such transferee meets the requirements for participationhereunder and affirmatively elects participation by delivering an executedauthorization form or other instrument required by the Administrator.

 

(c)           The Administrator may terminate aParticipant’s individual participation in the Plan, and the Company may suspendor terminate the Plan itself, at any time by ten days’ prior written notice toa Participant, or to all Participants, as the case may be.

 

(d)           After termination of the Plan ortermination of a Participant’s participation in the Plan, the Administratorwill send to each Participant (i) a statement of account in accordancewith 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 REGULATORY RESTRICTIONS. The Administrator is authorized to deny participation in the Plan toresidents of any state that imposes restrictions on participation in the Planthat conflict with the general terms and provisions of this Plan.

 

12.           NOTICE.  Any notice orother communication required or permitted to be given by any provision of thisPlan shall be in writing and, if to the Administrator, addressed to BehringerHarvard Investment Services, P.O. Box 219768, Kansas City, MO 64121-9768,or such other address as may be specified by the Administrator by writtennotice to all Participants.  Notices to aParticipant may be given by letter addressed to the Participant at the 

 

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Participant’s last address of record with theAdministrator, delivered by electronic means to any address specified by theParticipant, or given by including such information in a Current Report on Form 8-Kor in 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 andconditions of this Plan may be amended or supplemented by the Company at anytime, including but not limited to an amendment to the Plan to substitute a newAdministrator to act as agent for the Participants, by delivering anappropriate notice to each Participant at least 30 days prior to the effectivedate of the amendment or supplement. Such amendment or supplement shall be deemed conclusively accepted byeach Participant except those Participants from whom the Administrator receiveswritten notice of termination prior to the effective date thereof.

 

In theevent that the Plan is amended pursuant to this Paragraph 13 or suspendedpursuant to Paragraph 10(c) hereof, each Participant shall remain aParticipant in the Plan receiving cash distributions during such period thatthe Plan is suspended or the Shares cannot otherwise be distributed hereunder,unless the Participant terminates his participation in accordance with theprocedures set forth under Paragraph 10(a) above.  Once such suspension or other inability todistribute Shares hereunder ceases, the Participant will then receive Shareshereunder.

 

14.           GOVERNING LAW.  This plan andparticipant’s election to participate in the plan shall be governed by the lawsof the State of Maryland.  The foregoingchoice of law shall not restrict the application of any state’s securities laws(including the standards contained in the Statement of Policy Regarding RealEstate Investment Trusts adopted by the North American SecuritiesAdministrators Association on May 7, 2007) to the sale of shares toits residents or within such state.

 

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