STRUCTURING FEE AGREEMENT
Exhibit 99.H.5
[•], 2009
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement is between RiverSource Investments, LLC (the “Company”) and UBS Securities LLC
(“UBS”) with respect to the Xxxxxxxx Premium Technology Growth Fund, Inc. (the “Fund”).
1. Fee. In consideration of certain financial advisory services that UBS has provided to the
Company in assisting the Company in structuring and organizing the Fund, the Company shall pay a
fee to UBS of [•] (the “Fee”). The Fee shall be paid promptly upon the closing of the initial
public offering of the Fund.
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 Company 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. Confidential Advice. Except to the extent legally required (after consultation with, and,
in the case of UBS’ advice, approval (not to be unreasonably withheld) as to form and substance by,
UBS and its counsel), none of (i) the name of UBS, (ii) any advice rendered by UBS to the Company,
or (iii) the terms of this Agreement or any communication from UBS in connection with the services
performed by UBS pursuant to this Agreement will be quoted or referred to orally or in writing, or
in the case of (ii) and (iii), reproduced or disseminated, by the Company or any of its affiliates
or any of their agents, without UBS’ prior written consent, which consent will not be unreasonably
withheld in the case of clause (i) and (iii) (but not (ii)).
5. Information. The Company recognizes and confirms that UBS (a) has used and relied
primarily on the information provided by the Company and on information available from generally
recognized public sources in performing the services contemplated by this Agreement without having
assumed responsibility for independently verifying the same, (b) has not assumed responsibility for
the accuracy, completeness or reasonableness of such information and (c) has not made an appraisal
of any assets or liabilities (contingent or otherwise) of the Fund.
6. Not an Investment Advisor. The Company acknowledges that you have not provided any advice
hereunder as to the value of securities or regarding the advisability of purchasing or selling any
securities for the Fund’s portfolio. The Company acknowledges and
agrees that UBS has been retained to act solely as an advisor to the Company, and the
Company’s engagement of UBS is not intended to confer rights upon any person (including the Fund or
any shareholders, employees or creditors of the Company or the Fund) not a party hereto as against
UBS or its affiliates, or their respective directors, officers, employees or agents, successors, or
assigns. UBS has acted as an independent contractor under this Agreement, and not in any other
capacity including as a fiduciary, and any duties arising out of its engagement shall be owed
solely to the Company.
7. Not Exclusive. Nothing herein shall be construed as prohibiting you or your affiliates
from acting as an underwriter or financial advisor or in any other capacity for any other persons
(including other registered investment companies or other investment managers).
8. Amendment; Waiver. No provision of this Agreement may be amended or waived except by an
instrument in writing signed by the parties hereto.
9. Governing Law. This Agreement and any claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement (“Claim”), directly or
indirectly, shall be governed by and construed in accordance with the laws of the State of New
York. 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 UBS consent to the jurisdiction of such courts
and personal service with respect thereto. EACH OF UBS 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.
10. 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 |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Agreed and Accepted:
UBS SECURITIES LLC
By: |
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| Title: | ||||
By: |
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| Name: | ||||
| Title: |
Indemnification Agreement
[•], 2009
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of UBS Securities LLC (“UBS”) to advise and assist the
undersigned (the “Company”) with the matters set forth in the Structuring Fee Agreement dated [•],
2009 between the Company and UBS (the “Agreement”), in the event that UBS 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”) in connection with any matter in relating to or arising out of the Agreement,
including, without limitation, related services and activities prior to the date of the Agreement,
the Company agrees to indemnify, defend and hold UBS harmless to the fullest extent permitted by
law, from and against any losses, claims, damages, liabilities and expenses in connection with any
such Proceeding, 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 (including bad faith) of UBS. In addition, in the event that
UBS becomes involved in any capacity in any such Proceeding, the Company will reimburse UBS for its
legal and other expenses (including the cost of any investigation and preparation) as such expenses
are incurred by UBS in connection therewith. 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 and other constituencies,
on the one hand, and UBS, 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 and other constituencies, 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 and other constituencies, as the case may be, as a result
of or in connection with the transaction (whether or not consummated) for which UBS has been
retained to perform services bears to the fees paid to UBS under the Agreement; provided, that in
no event shall the Company contribute less than the amount necessary to assure that UBS is not
liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees
actually received by UBS 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 UBS, on the other hand. The Company will not settle any Proceeding in respect of which indemnity
may be sought hereunder, whether or not UBS is an actual or potential party to such Proceeding,
without UBS’ prior written consent. For purposes of this Indemnification Agreement, UBS shall
include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS
Securities LLC or any of its affiliates, their respective officers, current and former directors,
employees and agents, and the successors and assigns of all of the foregoing persons. 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 neither UBS nor any of its affiliates, directors, agents, employees or
controlling persons shall have any liability to the Company or any person asserting claims on
behalf of or in right of the Company in connection with or as a result of either UBS’ engagement
under the Agreement or any matter referred to in the Agreement, including, without limitation,
related services and activities prior to the date of 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 UBS 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 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 UBS 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 UBS OR ANY INDEMNIFIED PARTY. EACH OF UBS 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 UBS’ engagement. 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.
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| Very truly yours, RIVERSOURCE INVESTMENTS, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Agreed and Accepted:
UBS SECURITIES LLC
By: |
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| Title: | ||||
By: |
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| Name: | ||||
| Title: |
[Indemnification Agreement]
