EXHIBIT 10.1
SECOND AMENDED AND RESTATED
DISTRIBUTION REINVESTMENT PLAN
Behringer Harvard REIT I, Inc.
Effective as of January 15, 2006
Behringer Harvard REIT I, Inc.,
a Maryland corporation (the “Company”), has adopted
this 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
and conditions set forth below.
1.
ELECTION TO PARTICIPATE. 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 such purchaser’s subscription
agreement at the time of subscription for Shares. Any
stockholder who has not previously elected to participate in the
Plan, and subject to
Section 10(b) herein any participant in any previous or
subsequent publicly offered limited partnership, real estate
investment trust or other real estate program sponsored by the
Company or its affiliates, including but not limited to Behringer
Harvard Mid-Term Value Enhancement Fund I LP and Behringer Harvard
Short-Term Opportunity Fund I LP (“Affiliated
Programs”), 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 or shares of stock or units of limited
partnership interest of an Affiliated Program (collectively
“Securities”) 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 Securities 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
or an Affiliated Program with respect to Securities 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 such Distribution
relates. Subject to the preceding sentence, regardless of the
date of such election, a holder of Securities will become a
Participant in the Plan effective on the first day of the month
following such election, and the election will apply to all
Distributions attributable to such 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 the Company or board or general partner of an Affiliated
Program, as applicable.
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 second public
offering of the Shares reserved for issuance under the Plan
pursuant to the Company’s prospectus dated February 11,
2005, as thereafter amended or supplemented (the “Second
Offering”), the Administrator will invest Distributions in
Shares
1
at a price of $9.50 per Share regardless of the
price per Security paid by the Participant for the Securities in
respect of which the Distributions are paid.
(b)
After termination of the Second Offering, the Administrator will
invest Distributions in Shares that may (but are not required to)
be supplied from either (i) 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
(ii) Shares purchased by the Administrator for the Plan in a
secondary market (if available) or on a national stock exchange or
The Nasdaq Stock Market (if listed) (collectively, the
“Secondary Market”) and registered with the Commission
for resale pursuant to the Plan. Shares purchased on the
Secondary Market as set forth in (ii) 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 purchases of Shares in the Plan on
such 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 Second 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)
If a Participant designates in writing that such
Participant’s broker who made the initial sale of Securities
to the Participant shall receive commissions for purchases under
the Plan, then such broker shall be paid a selling commission not
to exceed 1% of value of the Shares purchased under the Plan
(reduced commission rates will apply as set forth in paragraph
(a) above). No dealer manager fee will be paid for
Shares purchased pursuant to the Plan. Each Participant is
permitted to identify, change or eliminate the name of his account
executive at a participating broker-dealer with respect to Shares
purchased pursuant to the Plan. In the event that no account
executive is identified, or in the event that the account executive
is not employed by a broker-dealer having a valid selling agreement
with the dealer manager, no selling commission will be paid with
respect to such purchases. If no such broker is designated,
or if the Participant designates only a portion of the selling
commission to be paid to the Participant’s broker, the amount
that would have been paid as a selling commission will be retained
and used by the Company.
(d)
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.
(e)
Distributions shall be invested in Shares by the Admin
