Exhibit (k)(3)
ADDITIONAL COMPENSATION AGREEMENT
ADDITIONAL COMPENSATION AGREEMENT (the "Agreement"), dated as of January [
], 2005, between Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") and Fund Asset Management, L.P. (the "Investment
Adviser").
WHEREAS, Diversified Income Strategies Portfolio, Inc. (including any
successor by merger or otherwise, the "Fund") is a newly organized, diversified,
closed-end management investment company registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), and its shares of common stock, par
value $.10 per share ("Common Stock") are registered under the Securities Act of
1933, as amended; and
WHEREAS, the Investment Adviser is the investment adviser of the Fund;
WHEREAS, Xxxxxxx Xxxxx is acting as lead underwriter in an offering of the
Common Stock;
WHEREAS, the Investment Adviser desires to provide additional compensation
to Xxxxxxx Xxxxx for acting as lead underwriter in an offering of the Common
Stock; and
WHEREAS, the Investment Adviser desires to retain Xxxxxxx Xxxxx to provide
after-market support services designed to maintain the visibility of the Fund on
an ongoing basis, and Xxxxxxx Xxxxx is willing to render such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, the parties hereto agree as follows:
1. (a) The Investment Adviser hereby agrees to pay Xxxxxxx Xxxxx additional
compensation for its acting as lead underwriter in the initial
public offering of the Fund's Common Stock and to provide the
following services at the reasonable request of the Investment
Adviser for the period and on the terms and conditions set forth
herein:
(1) after-market support services designed to maintain the
visibility of the Fund on an ongoing basis;
(2) relevant information, studies or reports regarding general
trends in the closed-end investment company and asset
management industries, if reasonably obtainable, and consult
with representatives of the Investment Adviser in connection
therewith; and
(3) information to and consult with the Investment Adviser with
respect to applicable strategies designed to address market
value discounts, if any.
(b) At the request of the Investment Adviser, Xxxxxxx Xxxxx shall limit
or cease any action or service provided hereunder to the extent and
for the time period requested by the Investment Adviser; provided,
however, that pending termination of this Agreement as provided for
in Section 5 hereof, any such limitation or cessation shall not
relieve the Investment Adviser of its payment obligations pursuant
to Section 2 hereof.
(c) Xxxxxxx Xxxxx will promptly notify the Investment Adviser if it
learns of any material inaccuracy or misstatement in, or material
omission from, any written information, as of the date such
information was published, provided by Xxxxxxx Xxxxx to the
Investment Adviser in connection with the performance of services by
Xxxxxxx Xxxxx under this Agreement.
2. The Investment Adviser shall pay Xxxxxxx Xxxxx a fee from its own
resources computed weekly and payable quarterly in arrears commencing
December 31, 2004 at an annualized rate of .15% of the Fund's average
daily net assets (including any assets attributable to any preferred stock
that may be outstanding), as defined in the Fund's prospectus dated
January [ ], 2005 (the "Prospectus"), plus the proceeds of any outstanding
borrowings used for leverage for a term as described in Section 5 hereof;
provided that the sum total amount of the fee hereunder shall not exceed
[______]% of the total price (including all Initial Securities and Option
Securities as such terms are described in the Purchase Agreement, dated
January [ ], 2005, by and among the Fund, the Investment Adviser and each
of the underwriters named therein (the "Purchase Agreement")) to the
public of the Common Stock offered by the Prospectus. All quarterly fees
payable hereunder shall be paid to Xxxxxxx Xxxxx within 15 days following
the end of each calendar quarter.
3. The Investment Adviser acknowledges that the services of Xxxxxxx Xxxxx
provided for hereunder do not include any advice 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 Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx is not hereby agreeing,
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 in connection with providing the services described in Section 1
hereof.
4. Nothing herein shall be construed as prohibiting Xxxxxxx Xxxxx or its
affiliates from providing similar or other services to any other clients
(including other registered investment companies or other investment
managers), so long as Xxxxxxx Xxxxx'x services to the Investment Adviser
are not impaired thereby.
5. The term of this Agreement shall commence upon the date referred to above
and shall be in effect so long as the Investment Adviser acts as the
investment manager to the Fund pursuant to the Advisory Agreement (as such
term is defined in the Purchase Agreement) or other subsequent advisory
agreement.
6. The Investment Adviser will xxxxxxx Xxxxxxx Xxxxx with such information as
Xxxxxxx Xxxxx believes appropriate to its assignment hereunder (all such
information so furnished being the "Information"). The Investment Adviser
recognizes and confirms that Xxxxxxx Xxxxx (a) will use and rely primarily
on the Information and on information available from generally recognized
public sources in performing the services contemplated by this Agreement
without having independently verified the same and (b) does not assume
responsibility for the accuracy or completeness of the Information and
such other information. To the best of the Investment Adviser's knowledge,
the Information to be furnished by the Investment Adviser when delivered,
will be true and correct in all material respects and will not contain any
material misstatement of fact or omit to state any material fact necessary
to make the statements contained therein not misleading. The Investment
Adviser will promptly notify Xxxxxxx Xxxxx if it learns of any material
inaccuracy or misstatement in, or material omission from, any Information
delivered to Xxxxxxx Xxxxx.
7. It is understood that Xxxxxxx Xxxxx is being engaged hereunder solely to
provide the services described above to the Investment Adviser and that
Xxxxxxx Xxxxx is not acting as an agent or fiduciary of, and shall have no
duties or liability to the current or future shareholders of the Fund or
any other third party in connection with its engagement hereunder, all of
which are hereby expressly waived.
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8. The Investment Adviser agrees that Xxxxxxx Xxxxx shall have no liability
to the Investment Adviser or the Fund for any act or omission to act by
Xxxxxxx Xxxxx in the course of its performance under this Agreement, in
the absence of gross negligence or willful misconduct on the part of
Xxxxxxx Xxxxx.
9. 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") shall be governed by and construed in accordance with the laws
of the State of New York.
10. 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 Investment Adviser and Xxxxxxx Xxxxx
consent to the jurisdiction of such courts and personal service with
respect thereto. Each of Xxxxxxx Xxxxx and the Investment Adviser waives
all right to trial by jury in any proceeding (whether based upon contract,
tort or otherwise) in any way arising out of or relating to this
Agreement. The Investment Adviser agrees that a final judgment in any
proceeding or counterclaim brought in any such court shall be conclusive
and binding upon the Investment Adviser and may be enforced in any other
courts to the jurisdiction of which the Investment Adviser is or may be
subject, by suit upon such judgment.
11. This Agreement may not be assigned by either party without the prior
written consent of the other party.
12. This Agreement embodies the entire agreement and understanding between the
parties hereto and supersedes all prior agreements and understandings
relating to the subject matter hereof. If any provision of this Agreement
is determined to be invalid or unenforceable in any respect, such
determination will not affect such provision in any other respect or any
other provision of this Agreement, which will remain in full force and
effect. This Agreement may not be amended or otherwise modified or waived
except by an instrument in writing signed by both Xxxxxxx Xxxxx and the
Investment Adviser.
13. All notices required or permitted to be sent under this Agreement shall be
sent, if to the Investment Adviser:
Fund Asset Management, L.P.
X.X. Xxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Vice President
or if to Xxxxxxx Xxxxx:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Debt and Equity New Issues
4 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
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or such other name or address as may be given in writing to the other
parties. Any notice shall be deemed to be given or received on the third
day after deposit in the US mail with certified postage prepaid or when
actually received, whether by hand, express delivery service or facsimile
transmission, whichever is earlier.
14. This Agreement may be executed in separate counterparts, each of which is
deemed to be an original and all of which taken together constitute one
and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Additional
Compensation Agreement as of the date first above written.
FUND ASSET MANAGEMENT, X.X. XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: PRINCETON SERVICES, INC.
General Partner
By: _____________________________ By: _________________________________
Name: Name:
Title: Title:
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