**Exhibit 4.3**

 

**AMENDED AND RESTATED AUTOMATIC PURCHASE PLAN**

 

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

 

**Adopted on November 10, 2009**

 

Behringer Harvard Opportunity REIT II, Inc., aMaryland corporation (the “Company”), has adopted this Amended and RestatedAutomatic Purchase Plan (the “Plan”), administered by the Company or anunaffiliated third party (the “Administrator”), as agent for participants inthe 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 ofthe Company, par value $.0001 per share (the “Shares”), may become aParticipant by making a written election to participate on such purchaser’sSubscription Agreement at the time of subscription for Shares.  Residents of the States of Alabama and Ohioare not eligible to participate in the Plan. Any stockholder who has not previously elected to participate in thePlan, and subject to the terms set forth in the Company’s then-current prospectus,any participant in any publicly offered limited partnership, real estateinvestment trust or other real estate program sponsored by Behringer HarvardHoldings or its affiliates may so elect at any time by completing and executingan authorization form obtained from the Administrator or any other appropriatedocumentation as may be acceptable to the Administrator.

 

2.             AUTOMATIC PURCHASE PROGRAM. The Administrator or the Company’s transfer agent will, at monthlyintervals (each, a “Payment Interval”), automatically debit the Participant’sbank checking account, savings account, or other account in the amountindicated on the Participant’s election to participate, not less than $200 permonth (collectively, the “Additional Payments”).  Participation in the program will commencewith the next monthly interval, provided the election is received at least tendays prior to the end of the month; otherwise, the election will apply to allsubsequent monthly intervals.

 

3.             GENERAL TERMS OF PLAN INVESTMENTS. The Administrator will apply all Additional Payments subject to thisPlan, as follows:

 

(a)           Prior to the termination of the Company’s initialpublic offering (the “Initial Offering”) of the Shares pursuant to the Company’sregistration statement on Form S-11 (File No. 333-140887), asthereafter amended or supplemented (the “Registration Statement”), theAdministrator will invest Additional Payments in Shares at the public offeringprice per Share ($10.00 per share).  Inaddition, in the event of any sale of Shares in respect of which the Company orthe dealer manger is authorized to make, and has made, an agreement as to areduction of sales commissions or dealer manager fees, the Company or thedealer manager also may agree to a commensurate reduction in such commissionsor fees for the purchase of Shares hereunder as set forth in the Company’sprospectus.  If such an agreement ismade, the Company or the dealer manager shall notify the Administrator thereofand the price at which Shares shall be purchased hereunder.  Notwithstanding the foregoing, no reductionin the purchase price for Shares purchased hereunder shall be made in respectof Shares acquired by the Participant at a commission reduction resulting fromestablished volume discounts set forth in the Company’s prospectus.

 

(b)           The Administrator will invest Additional Payments inShares that may (but are not required to) be supplied from any of (i) Sharesregistered with the Securities and Exchange Commission (the “Commission”) inconnection with the Initial Offering; (ii) Shares registered with theCommission pursuant to an effective registration statement for Shares for usein the Plan (a “Future Registration”), or (iii) Shares purchased by theAdministrator for the Plan in a secondary market (if available) or on a stockexchange (collectively, the “Secondary Market”) and registered with theCommission for resale pursuant to the Plan. Shares purchased on the Secondary Market as set forth in (iii) abovewill be purchased at the then-prevailing market price, and the average pricepaid by the Administrator for all such purchases for a single automaticpurchase interval will be utilized for purposes of purchases of Shares in thePlan on such investment date.  Shares acquiredby 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 Initial Offering and any subsequent offering.  If the Administrator acquires Shares in theSecondary Market for use in the Plan, the Administrator shall 

 

1

----

 

use reasonable efforts toacquire Shares for use 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.

 

(c)           If a Participant designates in writing that such Participant’sbroker who made the initial sale of Shares to the Participant shall receivecommissions for purchases under the Plan, then such broker shall be paid aselling commission not to exceed 7.0% (reduced commission rates will apply asset forth in paragraph (a) above). Dealer manager fees will be paid to the dealer manager named in theRegistration Statement for the Initial Offering at the rate not to exceed 2.5% (reduced fees will apply as set forth inparagraph (a) above).  EachParticipant is permitted to identify, change, or eliminate the name of hisaccount executive at a participating broker-dealer with respect to Sharespurchased pursuant to the Plan.  In theevent that no account executive is identified, or in the event that the accountexecutive is not employed by a broker-dealer having a valid selling agreementwith the dealer manager, no selling commission will be paid with respect tosuch purchases.  If no selling commissionis paid, the amount that would have been paid as a selling commission will beretained and used by the Company.

 

(d)           For each Participant, the Administrator will maintainan account that shall reflect the Additional Payments received by theAdministrator on behalf of such Participant. A Participant’s account shall be reduced as purchases of Shares are madeon behalf of such Participant.

 

(e)           Additional Payments will be invested by theAdministrator in Shares promptly following each Payment Interval to the extentShares are available for purchase under the Plan.  If sufficient Shares are not available, anysuch funds that have not been invested in Shares within 30 days after receiptby the Administrator and, in any event, by the end of the fiscal quarter inwhich they are received, will be distributed to the Participants.  Any interest earned on such accounts will bepaid to the Company and will become the property of the Company.

 

(f)            The purchase of fractional shares, computed to fourdecimal places, is a permissible and likely result of participation in thePlan.  The ownership of the Shares shallbe reflected on the books of the Company or its transfer agent.

 

(g)           A Participant will not be able to acquire Shares underthe Plan to the extent that such purchase would cause the Participant to exceedthe ownership limits set forth in the Company’s charter, as amended, unlessexempted by the Company’s board of directors.

 

(h)           The Shares issued under the Plan will beuncertificated until the Company’s board of directors determines otherwise.

 

4.             DISTRIBUTION OF FUNDS. If the Participant elects to participate in the distributionreinvestment plan, the Administrator may commingle distributions related toShares purchased through this Plan with Participant’s other distributions fromthe Company’s Shares to make purchases pursuant to the Company’s distributionreinvestment plan.

 

5.             ABSENCE OF LIABILITY. Neither the Company nor the Administrator shall have any responsibilityor liability as to the value of the Shares, any change in the value of theShares acquired for the Participant’s account, or the rate of return earned on,or the value of, the interest-bearing accounts in which Additional Payments areinvested.  Neither the Company nor theAdministrator shall be liable for any act done in good faith, or for any goodfaith omission to 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.

 

6.             SUITABILITY.

 

(a)           Each Participant shall notify the Administrator in theevent that, at any time during his participation in the Plan, there is anymaterial change in the Participant’s financial condition or inaccuracy of anyrepresentation under the Subscription Agreement for the Participant’s initialpurchase of Shares.

 

(b)           For purposes of this Paragraph 6, a material changeshall include any anticipated or actual decrease in net worth or annual grossincome or any other change in circumstances that would cause the Participant 

 

2

----

 

to fail to meet thesuitability standards set forth in the Company’s then-current prospectus, assupplemented, for the offering of Shares under this Plan.

 

7.             REPORTS TO PARTICIPANTS. Within 60 days after the end of each fiscal quarter, the Administratorwill deliver to each Participant a statement of account describing, as to suchParticipant, the Additional Payments received during the quarter, the number ofShares purchased during the quarter, the per Share purchase price for suchShares, and the total Shares purchased on behalf of the Participant pursuant tothe Plan.  Each statement shall alsoadvise the Participant that, in accordance with Paragraph 6 hereof, theParticipant is required to notify the Administrator in the event that there isany material change in the Participant’s financial condition or if anyrepresentation made by the Participant under the Subscription Agreement for theParticipant’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.  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.  Participantsshould consult their own tax adviser regarding the tax consequences ofownership of the Shares.

 

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 anyAdditional Payment, such notice must be received by the Administrator at leastten days prior to the next Payment Interval following the date of receipt ofsuch notice.

 

(b)           The Administrator may terminate a Participant’sindividual participation in the Plan, and the Company may suspend or terminatethe Plan itself, at any time by ten days’ prior written notice to aParticipant, or to all Participants, as the case may be.

 

(c)           After termination of the Plan or termination of aParticipant’s participation in the Plan, the Administrator will send to eachParticipant (i) a statement of account in accordance with Paragraph 7hereof, and (ii) a check for the amount of any Additional Payments in theParticipant’s account that have not been invested in Shares.

 

11.           STATE REGULATORY RESTRICTIONS. The Administrator is authorized to deny participation in the Plan toresidents of any state which 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 theParticipant’s last address of record with the Administrator, delivered byelectronic means to any address specified by the Participant, or given byincluding such information in a Current Report on Form 8-K or in theCompany’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 the event that the Plan is amended pursuant to thisParagraph 13 or suspended pursuant to Paragraph 10(b) hereof, eachParticipant shall remain a Participant in the Plan, unless the Participantterminates his participation in accordance with the procedures set forth underParagraph 10(a) above.

 

3

----

 

14.           GOVERNING LAW. This plan and participant’s election to participate in the plan shall begoverned by the laws of the State of Maryland. The foregoing choice of law shall not restrict the application of any state’ssecurities laws (including the standards contained in the Statement of PolicyRegarding Real Estate Investment Trusts adopted by the North AmericanSecurities Administrators Association on May 7, 2007) to the sale ofshares to its residents or within such state.

 

15.           PARTICIPATION BY LIMITED PARTNERS OFBEHRINGER HARVARD OPPORTUNITY OP II LP.  For purposesof this Plan, “stockholders” shall be deemed to include limited partners ofBehringer Harvard Opportunity OP II LP (the “Partnership”); “Participants”shall be deemed to include limited partners of the Partnership that elect toparticipate in the Plan.

 

4

----