XXXXX XXXXX TAX-MANAGED DIVERSIFIED
EQUITY INCOME FUND
AMENDED AND RESTATED ADMINISTRATIVE
SERVICES AGREEMENT
AGREEMENT made this 6th day of
August, 2012, between Xxxxx Xxxxx Tax-
Managed Diversified Equity Income Fund, a
Massachusetts business trust (the "Fund"),
and Xxxxx Xxxxx Management, a
Massachusetts business trust (the
"Administrator").
1. Duties of the Administrator. The
Fund hereby employs the Administrator to act
as administrator for and to administer the
affairs of the Fund, subject to the supervision
of the Trustees of the Fund for the period and
on the terms set forth in this Agreement.
The Administrator hereby accepts such
employment, and agrees to administer the
Fund's business affairs and, in connection
therewith, to furnish for the use of the Fund
office space and all necessary office facilities,
equipment and personnel for administering
the affairs of the Fund. The Administrator
shall also pay the salaries and compensation
of all officers and Trustees of the Fund who
are members of the Administrator's
organization and who render executive and
administrative services to the Fund, and the
salaries and compensation of all other
personnel of the Administrator performing
management and administrative services for
the Fund. The Administrator shall for all
purposes herein be deemed to be an
independent contractor and shall, except as
otherwise expressly provided or authorized,
have no authority to act for or represent the
Fund in any way or otherwise be deemed an
agent of the Fund.
In connection with its responsibilities as
Administrator of the Fund, the Administrator
will:
* assist in preparing all annual, semi-
annual and other reports required to
be sent to Fund shareholders and/or
with the Securities and Exchange
Commission ("SEC"), and arrange for
the printing and dissemination of such
reports to shareholders;
* prepare and assemble all reports
required to be filed by the Fund with
the SEC on Forms N-SAR, or on such
other form as the SEC may substitute
for Form N-SAR, and file such reports
with the SEC;
* review the provision of services by the
Fund's independent accountants,
including, but not limited to, the
preparation by such firm of audited
financial statements of the Fund and
the Fund's federal, state and local tax
returns; and make such reports and
recommendations to the Trustees of
the Fund concerning the performance
of the independent accountants as the
Trustees deem appropriate;
* arrange for the filing with the
appropriate authorities all required
federal, state and local tax returns;
* arrange for the dissemination to
shareholders of the Fund's proxy
materials, and oversee the tabulation of
proxies by the Fund's transfer agent
or other duly authorized proxy
tabulator;
* review and supervise the provision of
custodian services to the Fund; and
make such reports and
recommendations to the Trustees
concerning the provision of such
services as the Trustees deem
appropriate;
* oversee the valuation of all such
portfolio investments and other assets
of the Fund as may be designated by
the Trustees (subject to any guidelines,
directions and instructions of the
Trustees), and review and supervise the
calculation of the net asset value of the
Fund's shares by the custodian;
* negotiate the terms and conditions
under which transfer agency and
dividend disbursing services will be
provided to the Fund, and the fees to
be paid by the Fund in connection
therewith; review and supervise the
provision of transfer agency and
dividend disbursing services to the
Fund; and make such reports and
recommendations to the Trustees
concerning the performance of the
Fund's transfer and dividend
disbursing agent as the Trustees deem
appropriate;
* establish the accounting policies of the
Fund; reconcile accounting issues
which may arise with respect to the
Fund's operations; and consult with
the Fund's independent accountants,
legal counsel, custodian, accounting
and bookkeeping agents and transfer
and dividend disbursing agent as
necessary in connection therewith;
* determine the amount of all
distributions (if any) to be paid by the
Fund to its shareholders; prepare and
arrange for the publishing of notices to
shareholders regarding such
distributions (if required) and provide
the Fund's transfer and dividend
disbursing agent and custodian with
such information as is required for such
parties to effect the payment of
distributions and to implement the
Fund's dividend reinvestment plan;
* review the Fund's bills and authorize
payments of such bills by the Fund's
custodian;
* oversee services provided to the Fund
by external counsel;
* make recommendations to the
Trustees as to whether the Fund should
make repurchase or tender offers for
its own shares; arrange for the
preparation and filing of all documents
required to be filed by the Fund with
the SEC; arrange for the preparation
and dissemination of all appropriate
repurchase or tender offer documents
and papers on behalf of the Fund; and
supervise and conduct the Fund's
periodic repurchase or tender offers
for its own shares;
* monitor any variance between the
market value and net asset value per
share, and periodically report to the
Trustees available actions that may
conform such values;
* monitor the activities of any
shareholder servicing agent retained
by the Administrator and periodically
report to the Trustees about such
activities;
* arrange for the preparation and filing
of all other reports, forms, registration
statements and documents required to
be filed by the Fund with the SEC, the
Financial Industry Regulatory Authority
and any securities exchange where
Fund shares are listed; and
* provide other internal legal, auditing,
accounting and administrative services
as ordinarily required in conducting the
Fund's business affairs.
Notwithstanding the foregoing, the
Administrator shall not be deemed to have
assumed any duties with respect to, and shall
not be responsible for, the management of
the Fund's assets or the rendering of
investment advice and supervision with
respect thereto or the distribution of shares
of the Fund, nor shall the Administrator be
deemed to have assumed or have any
responsibility with respect to functions
specifically assumed by any transfer agent,
custodian or shareholder servicing agent of
the Fund.
Sub-Administrators. The Administrator
may employ one or more sub-administrators
from time to time to perform such of the acts
and services of the Administrator and upon
such terms and conditions as may be agreed
upon between the Administrator and such
sub-administrators and approved by the
Trustees of the Fund, all as permitted by the
Investment Company Act of 1940.
2. Compensation of the
Administrator. The Board of Trustees of the
Fund have currently determined that, based
on the current level of compensation payable
to Xxxxx Xxxxx Management by the Fund
under the Fund's present Investment
Advisory Agreement with Xxxxx Xxxxx
Management, the Administrator shall receive
no compensation from the Fund in respect of
the services to be rendered and the facilities
to be provided by the Administrator under
this Agreement. If the Trustees subsequently
determine that the Fund should compensate
the Administrator for such services and
facilities, such compensation shall be set forth
in a new agreement or in an amendment to
this Agreement to be entered into by the
parties hereto.
3. Allocation of Charges and
Expenses. It is understood that the Fund will
pay all its expenses other than those expressly
stated to be payable by the Administrator
hereunder, which expenses payable by the
Fund shall include, without implied limitation:
* expenses of maintaining the Fund and
continuing its existence;
* commissions, fees and other expenses
connected with the acquisition and
disposition of securities and other
investments;
* auditing, accounting and legal
expenses;
* taxes and interest;
* governmental fees;
* expenses of repurchase and
redemption (if any) of shares, including
all expenses incurred in conducting
repurchase and tender offers for the
purpose of repurchasing Fund shares;
* expenses of registering and qualifying
the Fund and its shares under federal
and state securities laws and of
preparing registration statements and
amendments for such purposes, and
fees and expenses of registering and
maintaining registrations of the Fund
under state securities laws;
* registration of the Fund under the
Investment Company Act of 1940;
* expenses of reports and notices to
shareholders and of meetings of
shareholders and proxy solicitations
therefor;
* expenses of reports to regulatory
bodies;
* insurance expenses;
* association membership dues;
* fees, expenses and disbursements of
custodians and subcustodians for all
services to the Fund (including without
limitation safekeeping of funds,
securities and other investments,
keeping of books and accounts and
determination of net asset values);
* fees, expenses and disbursements of
transfer agents, dividend disbursing
agents, shareholder servicing agents
and registrars for all services to the
Fund;
* expenses of listing shares with a stock
exchange;
* any direct charges to shareholders
approved by the Trustees of the Fund;
* compensation and expenses of
Trustees of the Fund who are not
members of the Administrator's
organization;
* all payments to be made and expenses
to be assumed by the Fund in
connection with the distribution of
Fund shares;
* any pricing and valuation services
employed by the Fund to value its
investments including primary and
comparative valuation services;
* any investment advisory, sub-advisory
or similar management fee payable by
the Fund;
* all expenses incurred in connection
with the Fund's use of a line of credit,
or issuing and maintaining preferred
shares; and
* such non-recurring items as may arise,
including expenses incurred in
connection with litigation, proceedings
and claims and the obligation of the
Fund to indemnify its Trustees and
officers with respect thereto.
4. Other Interests. It is understood
that Trustees, officers and shareholders of the
Fund are or may be or become interested in
the Administrator as trustees, officers,
employees, shareholders or otherwise and
that trustees, officers, employees and
shareholders of the Administrator are or may
be or become similarly interested in the Fund,
and that the Administrator may be or become
interested in the Fund as a shareholder or
otherwise. It is also understood that trustees,
officers, employees and shareholders of the
Administrator may be or become interested
(as directors, trustees, officers, employees,
shareholders or otherwise) in other
companies or entities (including, without
limitation, other investment companies) that
the Administrator may organize, sponsor or
acquire, or with which it may merge or
consolidate, and which may include the words
"Xxxxx Xxxxx" or any combination thereof
as part of their name, and that the
Administrator or its subsidiaries or affiliates
may enter into advisory or management or
administration agreements or other contracts
or relationship with such other companies or
entities.
5. Limitation of Liability of the
Administrator. The services of the
Administrator to the Fund are not to be
deemed to be exclusive, the Administrator
being free to render services to others and
engage in other business activities. In the
absence of willful misfeasance, bad faith,
gross negligence or reckless disregard of
obligations or duties hereunder on the part of
the Administrator, the Administrator shall not
be subject to liability to the Fund or to any
shareholder of the Fund for any act or
omission in the course of, or connected with,
rendering services hereunder or for any losses
which may be sustained in the acquisition,
holding or disposition of any security or other
investment.
6. Duration and Termination of this
Agreement. This Agreement shall become
effective upon the date of its execution, and,
unless terminated as herein provided, shall
remain in full force and effect through and
including the second anniversary of the
execution of this Agreement and shall
continue in full force and effect indefinitely
thereafter, but only so long as such
continuance after such date is specifically
approved at least annually (i) by the Board of
Trustees of the Fund and (ii) by the vote of a
majority of those Trustees of the Fund who
are not interested persons of the
Administrator or the Fund.
Either party hereto may, at any time on
sixty (60) days' prior written notice to the
other, terminate this Agreement without the
payment of any penalty, by action of the
Trustees of the Fund or the trustee of the
Administrator, as the case may be, and the
Fund may, at any time upon such written
notice to the Administrator, terminate the
Agreement by vote of a majority of the
outstanding voting securities of the Fund.
This Agreement shall terminate automatically
in the event of its assignment.
7. Amendments of the Agreement.
This Agreement may be amended by a writing
signed by both parties hereto, provided that
no amendment to this Agreement shall be
effective until approved (i) by the vote of a
majority of those Trustees of the Fund who
are not interested persons of the
Administrator or the Fund, and (ii) by vote of
the Board of Trustees of the Fund.
8. Limitation of Liability. Each party
expressly acknowledges the provision in the
other party's Agreement and Declaration of
Trust limiting the personal liability of trustees,
officers and shareholders, and each party
hereby agrees that it shall only have recourse
to the assets of the other party for payment
of claims or obligations arising out of this
Agreement and shall not seek satisfaction
from the Trustees, officers or shareholders of
the other party.
9. Use of the Name "Xxxxx
Xxxxx." The Administrator hereby consents
to the use by the Fund of the name "Xxxxx
Xxxxx" as part of the Fund's name;
provided, however, that such consent shall be
conditioned upon the employment of the
Administrator or one of its affiliates as the
administrator of the Fund. The name "Xxxxx
Xxxxx" or any variation thereof may be used
from time to time in other connections and
for other purposes by the Administrator and
its affiliates and other investment companies
that have obtained consent to the use of the
name "Xxxxx Xxxxx." The Administrator
shall have the right to require the Fund to
cease using the name "Xxxxx Xxxxx" as part
of the Fund's name if the Fund ceases, for
any reason, to employ the Administrator or
one of its affiliates as the Fund's
administrator. Future names adopted by the
Fund for itself, insofar as such names include
identifying words requiring the consent of the
Administrator, shall be the property of the
Administrator and shall be subject to the
same terms and conditions.
10. Certain Definitions. The terms
"assignment" and "interested persons"
when used herein shall have the respective
meanings specified in the Investment
Company Act of 1940 as now in effect or as
hereafter amended subject, however, to such
exemptions as may be granted by the
Securities and Exchange Commission by any
rule, regulation or order. The term "vote of
a majority of the outstanding voting
securities" shall mean the vote of the lesser
of (a) 67 per centum or more of the shares of
the Fund present or represented by proxy at
the meeting if the holders of more than 50
per centum of the outstanding shares of the
Fund are present or represented by proxy at
the meeting, or (b) more than 50 per centum
of the outstanding shares of the Fund.
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be
executed on the day and year first above
written.
XXXXX XXXXX TAX-MANAGED DIVERSIFIED
XXXXX XXXXX MANAGEMENT
EQUITY INCOME FUND
By:
By:
Xxxxxxx Xxxxxxxx
Xxxxxxx X. Gemma
Treasurer
Vice President
14
021_0065
021_0065
