EXHIBIT 4.2
FIRST AMENDMENT
TO THE
SECOND AMENDED AND
RESTATED
DISTRIBUTION REINVESTMENT
PLAN
OF
BEHRINGER HARVARD OPPORTUNITY
REIT I, INC.
Behringer Harvard Opportunity REIT
I, Inc., a Maryland corporation (the “Company”),
hereby adopts this first amendment, effective as of May 11,
2009 (the “Amendment”), to the second amended and
restated distribution reinvestment plan of the Company (the
“Plan”), on the terms and conditions set forth
below. Any capitalized term used herein that is not otherwise
defined herein shall have the meaning ascribed to such term as
provided in the Plan.
1.
Amendment to Paragraph
3 . Paragraph 3 of the
Plan is hereby amended by deleting it in its entirety and replacing
it with the following:
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 October 26, 2007, 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 Amendment 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 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 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 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.
(f) 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.
(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.
2.
Amendment to Paragraph
7 . The first sentence of
Paragraph 7 of the Plan is hereby amended by deleting it in its
entirety and replacing it with the following:
Within 60 days after the end of each
fiscal quarter, the Administrator will deliver 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 and the calendar year pursuant to the
Plan, and the per Share purchase price for such Shares.
3.
Amendment to Paragraph
10(a) . Paragraph
10(a) of the Plan is hereby amended by deleting it in its
entirety and replacing it with the following:
(a) A Participant may terminate
or modify his participation in the Plan at any time by written
notice mailed 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.
4.
Amendment to Paragraph
10(c) . Paragraph
10(c) of the Plan is hereby amended by deleting it in its
entirety and replacing it with the following:
(c) The Administrator may
terminate a Participant’s individual participation in the
Plan, and the Company may suspend or terminate the Plan itself, at
any time by ten days&r
