STRUCTURING FEE AGREEMENT
Exhibit 99.H.4
[•], 2009
Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated [•], 2009 (the “Underwriting Agreement”), by
and among Xxxxxxxx Premium Technology Growth Fund, Inc. (the “Fund”), RiverSource Investments, LLC
(the “Investment Manager”) and each of the Underwriters named therein, severally, with respect to
the issue and sale of the Fund’s Common Shares (the “Offering”), as described therein. Capitalized
terms used herein and not otherwise defined shall have the meanings given to them in the
Underwriting Agreement.
1. Fee. In consideration of your services assisting the Investment Manager with
respect to the structure and design of the Fund and the organization of the Fund as well as
services related to the sale and distribution of the Fund’s Common Shares, the Investment Manager
shall pay a fee to you in the aggregate amount of $[•] (the “Fee”). The Fee shall be paid on or
before [Closing Date], 2009. The Fee shall be paid by wire transfer to the order of Xxxxx Fargo
Securities, LLC.
In the event that the Investment Manager (or the Fund or any person or entity affiliated with
the Investment Manager or the Fund or acting on behalf of or at the direction of any of the
foregoing) compensates or agrees to compensate any other broker or dealer participating in the
Offering (each, an “Other Broker”) for any services or otherwise in connection with the Offering or
with respect to the Fund or its Common Shares (excluding for this purpose any compensation paid
directly to the entire underwriting syndicate, as a group, pursuant to the Underwriting Agreement),
and whether such compensation be denominated a fee, an expense reimbursement, a set-off, a credit
or otherwise (such compensation with respect to any Other Broker, such Other Broker’s “Other
Compensation”), then the amount of the Fee shall be increased as and to the extent necessary so
that the Fee payable to you hereunder, expressed as a percentage of the aggregate price to the
public of the Common Shares sold by you in the Offering (including any Common Shares over-allotted
by you in the Offering regardless of whether the over-allotment option in the Offering is
exercised), is no less than the Other Compensation, expressed as a percentage of the aggregate
price to the public of the Common Shares sold by such Other Broker in the Offering.
2. Term. This Agreement shall terminate upon the payment of the entire amount of the
Fee, as specified in Section 1 hereof.
3. Indemnification. The Investment Manager agrees to the indemnification and other
agreements set forth in the Indemnification Agreement attached hereto, the provisions of which
are
incorporated herein by reference and shall survive the termination, expiration or supersession of
this Agreement.
4. Not an Investment Adviser; No Fiduciary Duty. The Investment Manager acknowledges
that you are not providing any advice hereunder as to the value of securities or regarding the
advisability of purchasing or selling any securities for the Fund’s portfolio. No provision of
this Agreement shall be considered as creating, nor shall any provision create, any obligation on
the part of you, and you are not agreeing hereby, to: (i) furnish any advice or make any
recommendations regarding the purchase or sale of portfolio securities; or (ii) render any
opinions, valuations or recommendations of any kind or to perform any such similar services. The
Investment Manager hereby acknowledges that your engagement under this Agreement is as an
independent contractor and not in any other capacity, including as a fiduciary. Furthermore, the
Investment Manager agrees that it is solely responsible for making its own judgments in connection
with the matters covered by this Agreement (irrespective of whether you have advised or are
currently advising the Investment Manager on related or other matters).
5. Not Exclusive. Nothing herein shall be construed as prohibiting you or your
affiliates from acting as an underwriter or financial adviser or in any other capacity for any
other persons (including other registered investment companies or other investment managers).
6. Assignment. This Agreement may not be assigned by any party without prior written
consent of the other party.
7. Amendment; Waiver. No provision of this Agreement may be amended or waived except
by an instrument in writing signed by the parties hereto.
8. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
9. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be an original, and all of which, when taken together, shall constitute one agreement.
Delivery of an executed signature page of this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
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This Agreement shall be effective as of the date first written above.
| RIVERSOURCE INVESTMENTS, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Agreed and Accepted:
| XXXXX FARGO SECURITIES, LLC | ||||
By: |
||||
| Name: | ||||
| Title: | ||||
Indemnification Agreement
[•], 2009
Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxx Fargo Securities, LLC (the “Bank”) to assist the
undersigned, Riversource Investments, LLC (together with its affiliates and subsidiaries, the
“Company”) with respect to the matters set forth in the Structuring Fee Agreement dated [•], 2009
between the Company and the Bank (the “Agreement”), in the event that the Bank, any of its
affiliates, each other person, if any, controlling the Bank or any of its affiliates, their
respective officers, current and former directors, employees and agents, or the successors or
assigns of any of the foregoing persons (the Bank and each such other person or entity being
referred to as an “Indemnified Party”) becomes involved in any capacity in any claim, suit, action,
proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative
action or arbitration proceeding) (collectively, a “Proceeding”) with respect to the services
performed pursuant to and in accordance with the Agreement, the Company agrees to indemnify, defend
and hold each Indemnified Party harmless to the fullest extent permitted by law, from and against
any losses, claims, damages, liabilities and expenses, including the fees and expenses of counsel
to the Indemnified Parties, with respect to the services performed pursuant to and in accordance
with the Agreement, except to the extent that it shall be determined by a court of competent
jurisdiction in a judgment that has become final in that it is no longer subject to appeal or other
review, that such losses, claims, damages, liabilities and expenses resulted primarily from the
gross negligence or willful misconduct of such Indemnified Party. In addition, in the event that
an Indemnified Party becomes involved in any capacity in any Proceeding with respect to the
services performed pursuant to and in accordance with the Agreement, the Company will reimburse
such Indemnified Party for its legal and other expenses (including the cost of any investigation
and preparation) as such expenses are incurred by such Indemnified Party in connection therewith.
Promptly as reasonably practicable after receipt by an Indemnified Party of notice of the
commencement of any Proceeding, such Indemnified Party will, if a claim in respect thereof is to be
made under this paragraph, notify the Company in writing of the commencement thereof; but the
failure so to notify the Company (i) will not relieve the Company from liability under this
paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event
shall not relieve the Company from any liability which it may have otherwise than on account of
this Indemnification Agreement. Counsel to the Indemnified Parties shall be selected by the Bank.
An indemnifying party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with the consent of the
Indemnified Parties) also be counsel to the Indemnified Party. No indemnifying party shall,
without the prior written consent of the Indemnified Parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties
are actual or
potential parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each Indemnified Party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any Indemnified Party.
If such indemnification were not to be available for any reason, the Company agrees to
contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion
appropriate to reflect the relative benefits received or sought to be received by the Company and
its stockholders and affiliates, on the one hand, and the Indemnified Parties, on the other hand,
in the matters contemplated by the Agreement or (ii) if (but only if and to the extent) the
allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company and its stockholders and affiliates, on the one hand, and the party
entitled to contribution, on the other hand, as well as any other relevant equitable
considerations. The Company agrees that for the purposes of this paragraph the relative benefits
received, or sought to be received, by the Company and its stockholders and affiliates, on the one
hand, and the party entitled to contribution, on the other hand, of a transaction as contemplated
shall be deemed to be in the same proportion that the total value received or paid or contemplated
to be received or paid by the Company or its stockholders or affiliates, as the case may be, as a
result of or in connection with the transaction (whether or not consummated) for which the Bank has
been retained to perform services bears to the fees paid to the Bank under the Agreement; provided,
that in no event shall the Company contribute less than the amount necessary to assure that the
Indemnified Parties are not liable for losses, claims, damages, liabilities and expenses in excess
of the amount of fees actually received by the Bank pursuant to the Agreement. Relative fault
shall be determined by reference to, among other things, whether any alleged untrue statement or
omission or any other alleged conduct relates to information provided by the Company or other
conduct by the Company (or its employees or other agents), on the one hand, or by the Bank, on the
other hand. Notwithstanding the provisions of this paragraph, an Indemnified Party shall not be
entitled to contribution from the Company if it is determined that such Indemnified Party was
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act
of 1933, as amended) and the Company was not guilty of such fraudulent misrepresentation. The
Company will not settle any Proceeding in respect of which indemnity may be sought hereunder,
whether or not an Indemnified Party is an actual or potential party to such Proceeding, without the
Bank’s prior written consent (which consent shall not be unreasonably withheld). The foregoing
indemnity and contribution agreement shall be in addition to any rights that any Indemnified Party
may have at common law or otherwise.
The Company agrees that no Indemnified Party shall have any liability to the Company or any
person asserting claims on behalf of or in right of the Company with respect to the services
performed pursuant to and in accordance with the Agreement, except to the extent that it shall be
determined by a court of competent jurisdiction in a judgment that has become final in that it is
no longer subject to appeal or other review that any losses, claims, damages, liabilities or
expenses incurred by the Company resulted primarily from the gross negligence or willful misconduct
of the Bank in performing the services that are the subject of the Agreement.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE
WHATSOEVER WITH RESPECT TO THE
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SERVICES PERFORMED PURSUANT TO AND IN ACCORDANCE WITH THE AGREEMENT (“CLAIM”), DIRECTLY OR
INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT
OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE
EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE COMPANY AND THE INDEMNIFIED
PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE
COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM
ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST THE
BANK OR ANY INDEMNIFIED PARTY. EACH INDEMNIFIED PARTY AND THE COMPANY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
IN ANY WAY RELATING TO THIS AGREEMENT. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING
OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT SHALL BE
CONCLUSIVE AND BINDING UPON THE COMPANY AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION
OF WHICH THE COMPANY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT.
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The foregoing Indemnification Agreement shall remain in full force and effect notwithstanding
any termination of the Bank’s engagement under the Agreement. This Indemnification Agreement may
be executed in two or more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same agreement.
| Very truly yours, RIVERSOURCE INVESTMENTS, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Agreed and Accepted:
| XXXXX FARGO SECURITIES, LLC | ||||
By: |
||||
| Name: | ||||
| Title: | ||||
[Indemnification Agreement]
