STRUCTURING FEE AGREEMENT
Exhibit h.4
July [ ], 2009
Xxxxxx, Xxxxxxxx & Company, Incorporated
1 Financial Plaza
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, XX 00000
1 Financial Plaza
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated July [ ], 2009 (the “Underwriting
Agreement”), by and among Tortoise Power and Energy Infrastructure Fund, Inc. (the “Fund”),
Tortoise Capital Advisors, L.L.C. (the “Adviser”) 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 Adviser 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 Adviser shall pay a fee to you in the aggregate
amount of $[ ] (the “Fee”). The Fee shall be paid on or before [closing date]. The Fee shall be
paid by wire transfer to the order of Xxxxxx, Xxxxxxxx & Company, Incorporated.
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 Adviser 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 Adviser 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 Adviser 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 Adviser 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 Adviser 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.
| TORTOISE CAPITAL ADVISORS, L.L.C. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Agreed and Accepted:
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED.
By: |
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| Title: |
Indemnification Agreement
July [ ], 2009
Xxxxxx, Xxxxxxxx & Company, Incorporated
1 Financial Plaza
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, XX 00000
1 Financial Plaza
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxxx, Xxxxxxxx & Company, Incorporated (the “Bank”) to
assist the undersigned, Tortoise Capital Advisors, L.L.C. (the “Company”) with respect to the
matters set forth in the Structuring Fee Agreement dated July [ ], 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 the Tortoise Power and Energy Infrastructure Fund, Inc. (the “Fund”), 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 the Fund, 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 the Fund, 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 the Fund, 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.
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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 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, TORTOISE CAPITAL ADVISORS, L.L.C. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Agreed and Accepted:
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By: |
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| Title: |
[Indemnification Agreement]
