EXHIBIT 4.1
AMENDED AND
RESTATED
DISTRIBUTION REINVESTMENT
PLAN
OF
BEHRINGER HARVARD REIT I,
INC.
Behringer Harvard REIT I, Inc.,
a Maryland corporation (the “Company”), has adopted
this amended and restated distribution reinvestment plan, effective
as of May 14, 2009 (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. Subject to
the terms hereof, 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
the purchaser’s subscription agreement at the time of
subscription for Shares. Any stockholder who has not previously
elected to participate in the Plan 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 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 Shares 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
with respect to Shares 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 the
Distribution relates. Subject to the preceding sentence, regardless
of the date of the election, a holder of Shares will become a
Participant in the Plan effective on the first day of the month
following the election, and the election will apply to all
Distributions attributable to the 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 directors of the Company (the
“Board”).
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 public offering of the Shares reserved for issuance
under the Plan pursuant to the Company’s prospectus dated
January 5, 2009, as thereafter amended or supplemented (the
“DRP Offering”), the Administrator will invest
Distributions in Shares at a price equal to 95% of 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, regardless of the
price per Share paid by the Participant for the Shares in respect
of which the Distributions are paid. The Valuation Policy in
effect as of the effective date of this Plan is attached hereto as
Exhibit A .
(b)
After termination of the DRP
Offering, the Administrator will invest Distributions in Shares
that may (but are not required to) be supplied from either
(1) 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 (2) Shares purchased by
the Administrator for the Plan in a secondary market (if available)
or on a national stock exchange (if listed) (collectively, the
“Secondary Market”) and registered with the Commission
for resale pursuant to the Plan. Shares registered in a
Future Registration that are not purchased by the Administrator in
the Secondary Market will be issued at a price equal to 95% of the
most recently disclosed Valuation. Shares purchased on the
Secondary Market as set forth in (2) above will be purchased
at the then-prevailing market price, and the average price paid by
the Administrator for all purchases for a single Distribution will
be utilized for purposes of determining the purchase price for
Shares purchased under the Plan on the 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 DRP 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)
Regardless of the pricing determined
pursuant 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 Administrator will invest Distributions in Shares;
provided that if the Board takes such action under this Paragraph
3(c), the Company shall deliver a notice regarding the new price to
each Participant at least 30 days prior to the effective date of
the new price. No advance notice of pricing pursuant to
Paragraphs (a) or (b) above shall be required.
(d)
No selling commission or dealer
manager fee will be paid for Shares purchased pursuant to the
Plan.
(e)
For each Participant, the
Administrator will maintain an account that shall reflect for each
month the Distributions received by the Administrator on behalf of
the Participant. A Participant’s account shall be reduced as
purchases of Shares are made on behalf of the
Participant.
(f)
Distributions shall be invested in
Shares by the Administrator promptly following the payment date
with respect to the Distributions to the extent Shares are
available for purchase under the Plan. If sufficient Shares are not
available, any 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 the accounts will be paid
to the Company and is and will become the property of the
Company.
(g)
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 Shares owned by Participants and any
additional payments received from Participants in respect of the
purchase of Shares.
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 the
Participant’s death prior to receipt of notice in writing of
the death and the expiration of ten days from the date of receipt
of the notice and (b) with respect to the time and the prices
at which Shares are purchased for a Participant.
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 Shares.
(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
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