INVESTMENT MANAGEMENT AND UNITARY FEE AGREEMENT

Exhibit (d)(2)

INVESTMENT MANAGEMENT AND UNITARY FEE AGREEMENT

AGREEMENT, dated as of January 1, 2009, among DWS Value Equity Trust, a Massachusetts business trust (the “Trust”), on its own behalf and on behalf of the DWS S&P 500 Plus Fund (formerly known as the DWS Enhanced S&P 500 Index Fund) (the "Fund”), and Deutsche Investment Management Americas Inc., a Delaware corporation (the “Adviser').

 

WHEREAS, the Trust is engaged in business as an open-end investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”);

 

WHEREAS, the Trust engages in the business of investing and reinvesting the assets of the Fund in accordance with the investment objectives, policies and restrictions specified in the currently effective Prospectuses (the “Prospectus”) and Statements of Additional Information (the “SAI”) of the Fund included in the Trust’s Registration Statement on Form N-1A, as amended from time to time (the “Registration Statement”), filed by the Trust under the Investment Company Act and the Securities Act of 1933, as amended;

 

WHEREAS, the Adviser is engaged principally in rendering investment management services and is registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”);

 

WHEREAS, the Trust desires to retain the Adviser to provide investment management services to the Fund on the terms set out in this Agreement, and the Adviser is willing to provide investment management services to the Fund on the terms set out in this Agreement.

 

NOW, THEREFORE, in consideration of the premises and the covenants contained in this Agreement, the Trust, the Fund and the Adviser agree as follows:

 

 

(a)       The Trust appoints the Adviser to act as investment manager to the Fund. The Adviser accepts its appointment and agrees to provide the services set out in this Agreement for the compensation set out in this Agreement.

 

(b)       Subject to the terms of this Agreement, and the supervision of the Board of Trustees, the Adviser will provide continuing investment management of the assets of the Fund in accordance with the investment objectives, policies and restrictions set forth in the Prospectus and SAI of the Fund; the applicable provisions of the Investment Company Act, the rules and regulations thereunder; the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), relating to regulated investment companies and all rules and regulations thereunder; and all other applicable federal and state laws and regulations. In connection with the services provided under this Agreement, the Adviser will use best efforts to manage the Fund so that it will qualify as

 

a regulated investment company under Subchapter M of the Code and regulations issued under the Code. The Adviser will also monitor, to the extent not monitored by the Fund’s administrator or other agent, the Fund’s compliance with its investment and tax guidelines and other compliance policies. The Fund will have the benefit of the investment analysis and research, the review of current economic conditions and trends and the consideration of long-range investment policy generally available to the Adviser’s investment advisory clients. In managing the Fund in accordance with the requirements set out in this Section 1, the Adviser will be entitled to receive and act upon advice of counsel for the Trust or the Fund.

 

(c)        The Adviser will determine the securities and other instruments to be purchased, sold or entered into by the Fund and place orders with broker-dealers, foreign currency dealers, futures commission merchants or others pursuant to the Adviser’s determinations and all in accordance with the Fund’s policies as set out in the Prospectus and SAI of the Fund or as adopted by the Board of Trustees and disclosed to the Adviser. The Adviser will determine what portion of the Fund's portfolio will be invested in securities and other assets and what portion, if any, should be held uninvested in cash or cash equivalents.

 

(d)   The Adviser will provide assistance to the Board of Trustees in valuing the securities and other instruments held by the Fund, to the extent reasonably required by such valuation policies and procedures as may be adopted by the Fund.

 

(e)    The Adviser will maintain in accordance with applicable law all books and records required of investment advisers under the Advisers Act, and will make available to the Board of Trustees such records upon request.

 

(f)     The Adviser also agrees to make available to the Board of Trustees the following:

 

 

 

(iii)      to the extent held by the Adviser, all of the Fund's investment records and ledgers as are necessary to assist the Trust in complying with the requirements of the Investment Company Act and other applicable laws.

 

To the extent required by law, the Adviser will furnish to regulatory authorities having the requisite authority any information or reports in connection with the services provided under this Agreement that may be requested.

 

(g)       The Adviser will also provide to the Fund’s administrator, custodian, fund accounting agent, shareholder service agents, transfer agents and other service providers, as required, and to the extent held by the Adviser, information relating to all transactions concerning the assets belonging to the Fund, in each case subject to compliance with applicable privacy standards.

 

 

(a) For all services to be rendered, payments to be made and costs to be assumed by the Adviser as provided under this Agreement, the Trust on behalf of the Fund will pay the Adviser in United States Dollars following the last day of each month the unpaid balance of a fee equal to the sum of all the daily management accruals from the previous month.

 

(i) For the period January 1, 2009 through December 31, 2009, the daily management accrual shall be calculated on a daily basis by multiplying the Fund’s prior day’s daily net assets (as defined in Section 2(c) herein) by 0.50% and dividing that product by 365.

 

(ii) Beginning on January 1, 2010 and for the remainder of the term of this Agreement, the daily management accrual shall be calculated on a daily basis by multiplying the Fund's average daily net assets for the previous 365-day period (or 366-day period, if February 29 should fall during the period) ("Performance Period") by 0.50% (the "Base Fee"), adjusted as described below, and dividing the product by the number of days in the Performance Period. The Base Fee used in calculating the daily management accrual shall be increased (but not by more than 0.50%) by an amount equal to the percentage difference by which the investment performance of the Fund for the Performance Period exceeded the sum of the investment record of the Standard & Poor's 500 Index for the Performance Period plus 0.50%. The Base Fee used in calculating the daily management accrual shall be decreased (but not by more than 0.50%) by an amount equal to the percentage difference by which the investment performance of the Fund for the Performance Period is less than the sum of the investment record of the Standard & Poor's 500 Index for the Performance Period plus 0.50%.

 

(iii) It is the intention of the Trust and the Adviser that the fee calculation specified herein shall comply in all respects with Section 205(b) of the Advisers Act and rules and regulations thereunder, and that the terms used in Section 2(a) (ii) shall be defined as provided therein.

 

(b) The Adviser will be entitled to receive during any month such interim payments of its fee under this Section 2 as it will request, provided that no such payment will exceed 75 percent of the amount of its fee then accrued on the books of the Fund and unpaid.

 

(c)       The “daily net assets” of the Fund will mean the value placed on the Fund's net assets as of 4:00 p.m. (New York time) on each day on which the net asset

 

value of the Fund is determined consistent with the provisions of Rule 22c-1 under the Investment Company Act or, if the Fund lawfully determines the value of its net assets as of some other time on each business day, as of such time. The value of the net assets of the Fund will always be determined pursuant to the applicable provisions of the Trust's Declaration of Trust, as amended from time-to-time (the “Declaration”) and the Registration Statement. If the determination of net asset value for the Fund does not take place for any particular day, then for the purposes of this Section 2, the value of the net assets of the Fund as last determined will be deemed to be the value of its net assets as of 4:00 p.m. (New York time), or as of such other time as the value of the net assets of the Fund's portfolio may be lawfully determined on that day. If the Fund determines the value of the net assets of its portfolio more than once on any day, then the last such determination thereof on that day will be deemed to be the sole determination thereof on that day for the purposes of this Section 2.

 

(d)       The Adviser may from time to time agree not to impose all or a portion of its fee otherwise payable under this Agreement and/or undertake to pay or reimburse the Fund for all or a portion of its expenses not otherwise required to be paid by or reimbursed by the Adviser. Unless otherwise agreed, any fee reduction or undertaking may be discontinued or modified by the Adviser at any time. For the month and year in which this Agreement terminates, there will be an appropriate pro ration of any fee based on the number of days that the Agreement is in effect during such month and year, respectively.

 

(e)       All rights to compensation under this Agreement for services performed as of the termination of this Agreement shall survive the termination.

 

 

(a)       The Adviser will provide at its expense the services described in this Agreement. Except as determined by the Board of Trustees and to the extent permitted by applicable law, the Adviser will pay the compensation and expenses of all Trustees, officers and executive employees of the Trust (including the Fund's share of payroll taxes) who are affiliated persons of the Adviser, and the Adviser will make available, without expense to the Fund, the services of such of its directors, officers and employees as may duly be elected officers of the Trust, subject to their individual consent to serve and to any limitations imposed by law.

 

(b)       Except as otherwise specifically provided in Sections 3(c) and 3(d) or as determined by the Board of Trustees, to the extent permitted by applicable law, the Adviser shall pay all of the Fund's expenses incurred in the ordinary course of its business, including, without limitation: administrative services, maintenance of books and records which are maintained by the Trust, the Fund's custodian or other agents of the Trust; fees and expenses of the Fund's accounting agent, custodians, sub-custodians, depositories (for securities and/or commodities), transfer agents, dividend disbursing agents and registrars; and payment for portfolio pricing or valuation services to pricing agents, accountants, bankers and other specialists, if any. The Adviser shall also

 

reimburse the Fund for the fees and expenses of the Trust's Trustees who are not "interested persons" and their counsel, and for the fees of the Fund's independent accountants.

(c)      The Adviser will not be required to pay: (a) portfolio transaction and other investment-related costs, including brokerage commissions, dealer and underwriter spreads, commitment fees on leverage facilities (but not commitment fees on credit facilities), prime broker fees and expenses, interest expense or dividend expenses related to short sales; (b) taxes; and (c) extraordinary expenses. For purposes of this Agreement, “extraordinary expenses” mean any unusual, unexpected and/or nonrecurring expenses that are approved as such by the Board of Trustees.

 

(d)       The Adviser will not be required to pay expenses of any activity which is primarily intended to result in sales of shares of the Fund (the “Shares”) if and to the extent that (i) such expenses are required to be borne by a principal underwriter that acts as the distributor of the Fund's Shares pursuant to an underwriting agreement that provides that the underwriter will assume some or all of such expenses, or (ii) the Trust on behalf of the Fund will have adopted a plan in conformity with Rule 12b-1 under the Investment Company Act providing that the Fund (or some other party) will assume some or all of such expenses. The Adviser will pay such sales expenses as are not required to be paid by the principal underwriter pursuant to the underwriting agreement or are not permitted to be paid by the Fund (or some other party) pursuant to such a plan.

 

4.         Delegation of Investment Management Services. Subject to the prior approval of a majority of the members of the Board of Trustees, including a majority of the Trustees who are not “interested persons”, and, to the extent required by applicable law, by the shareholders of the Fund, the Adviser may, through a sub-advisory agreement or other arrangement, delegate to a sub-advisor any of the duties enumerated in this Agreement, including the management of all or a portion of the assets being managed. Subject to the prior approval of a majority of the members of the Board of Trustees, including a majority of the Trustees who are not “interested persons”, and, to the extent required by applicable law, by the shareholders of the Fund, the Adviser may adjust such duties, the portion of assets being managed, and the fees to be paid by the Adviser; provided, that in each case the Adviser will continue to oversee the services provided by such company or employees and any such delegation will not relieve the Adviser of any of its obligations under this Agreement.

 

 

(a) Subject to the policies established by, and any direction from the Trust’s Board of Trustees, the Adviser will be responsible for selecting the brokers or dealers that will execute the purchases and sales for the Fund. Subject to the foregoing, it is understood that the Adviser will not be deemed to have acted unlawfully, or to have breached a fiduciary duty to the Trust or be in breach of any obligation owing to the Trust under this Agreement, or otherwise, solely by reason of its having directed a securities transaction on behalf of a series to a broker-dealer in compliance with the provisions of Section 28(e) of the Securities Exchange Act of 1934 or as otherwise permitted from time to time by a series’ Prospectus and SAI.

 

 

(b)       Subject to the policies established by, and any direction from, the Fund’s Board of Trustees, the Adviser may direct any of its affiliates to execute portfolio transactions for the Fund on an agency basis. The commissions paid to the Adviser’s affiliates must be in accordance with Rule 17e-1 under the Investment Company Act.

 

(c)       The Adviser and any of its affiliates will not deal with the Trust or any of its affiliates in any transaction in which the Adviser or any of its affiliates acts as a principal with respect to any part of the Fund order, except in compliance with the Investment Company Act, the rules and regulations under the Investment Company Act and any applicable Securities & Exchange Commission ("SEC") or SEC staff guidance or interpretation. If the Adviser or any of its affiliates is participating in an underwriting or selling group, the Fund may not buy securities from the group except in accordance with policies established by the Board of Trustees in compliance with the Investment Company Act, the rules and regulations under the Investment Company Act and any applicable SEC or SEC staff guidance or interpretation.

 

(d)           The Adviser will promptly communicate to the Fund’s administrator and to the officers and the Trustees of a Trust such information relating to portfolio transactions as they may reasonably request.

 

 

(a)       As an inducement to the Adviser undertaking to provide services to the Trust and the Fund pursuant to this Agreement, the Trust and the Fund agree that the Adviser will not be liable under this Agreement for any error of judgment or mistake of law or for any loss suffered by the Trust or the Fund in connection with the matters to which this Agreement relates, provided that nothing in this Agreement will be deemed to protect or purport to protect the Adviser against any liability to the Trust, the Fund or its shareholders to which the Adviser would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties, or by reason of its reckless disregard of its obligations and duties under this Agreement.

 

(b)       The rights of exculpation provided under this Section 6 are not to be construed so as to provide for exculpation of any person described in this Section 6 for any liability (including liability under U.S. federal securities laws that, under certain circumstances, impose liability even on persons that act in good faith) to the extent (but only to the extent) that exculpation would be in violation of applicable law, but will be construed so as to effectuate the applicable provisions of this Section 6 to the maximum extent permitted by applicable law.

 

 

7.     Term and Termination.

 

(a)       This Agreement will remain in force with respect to each party until December 31, 2010 and continue in force from year to year thereafter, but only so long as such continuance is specifically approved at least annually (a) by the vote of a majority of the Trustees who are not parties to this Agreement or “interested persons” of any party to this Agreement, cast in person at a meeting called for the purpose of voting on such approval, and (b) by the vote of a majority of the Trustees of the Trust, or by the vote of a majority of the outstanding voting securities of the Fund. The requirement that continuance of this Agreement be “specifically approved at least annually” will be construed in a manner consistent with the Investment Company Act, the rules and regulations under the Investment Company Act and any applicable SEC or SEC staff guidance or interpretation.

 

(b)       This Agreement may be terminated at any time, without the payment of any penalty, by the vote of a majority of the outstanding voting securities of the Fund or by the Trust's Board of Trustees on 60 days' written notice to the Adviser, or by the Adviser on 60 days' written notice to the Trust. This Agreement will terminate automatically in the event of its assignment (as defined under the Investment Company Act).

 

8.         Amendment. No provision of this Agreement may be changed, waived, discharged, or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge, or termination is sought, and no amendment of this Agreement will be effective until approved in a manner consistent with the Investment Company Act, rules and regulations under the Investment Company Act and any applicable SEC or SEC staff guidance or interpretation.

 

9.           Services Not Exclusive. The Adviser’s services to the Trust and the Fund pursuant to this Agreement are not exclusive and it is understood that the Adviser may render investment advice, management and services to other persons (including other investment companies) and to engage in other activities, so long as its services under this Agreement are not impaired by such other activities. It is understood and agreed that officers or directors of the Adviser may serve as officers or Trustees of the Trust, and that officers or Trustees of the Trust may serve as officers or directors of the Adviser to the extent permitted by law; and that the officers and directors of the Adviser are not prohibited from engaging in any other business activity or from rendering services to any other person, or from serving as partners, officers, trustees or directors of any other firm, trust or corporation, including other investment companies. Whenever the Fund and one or more other accounts or investment companies advised by the Adviser have available funds for investment, investments suitable and appropriate for each will be allocated in accordance with procedures believed by the Adviser to be equitable to each entity over time. Similarly, opportunities to sell securities will be allocated in a manner believed by the Adviser to be equitable to each entity over time. The Trust and the Fund recognize that in some cases this procedure may adversely affect the size of the position that may be acquired or disposed of for the Fund.

 

10.       Avoidance of Inconsistent Position. In connection with purchases or sales of portfolio securities and other investments for the account of the Fund, neither the Adviser nor any of its directors, officers, or employees will act as a principal or agent or receive any

 

commission, except in accordance with applicable law and policies and procedures adopted by the Board of Trustees. The Adviser or its agent will arrange for the placing of all orders for the purchase and sale of portfolio securities and other investments for the Fund's account with brokers or dealers selected by it in accordance with Fund policies as expressed in the Registration Statement. If any occasion should arise in which the Adviser gives any advice to its clients concerning the Shares of the Fund, it will act solely as investment counsel for such clients and not in any way on behalf of the Fund.

 

11.       Delivery of Documents. Copies of the Registration Statement and the Fund’s Prospectus and SAI have been furnished to the Adviser by the Trust. The Trust has also furnished the Adviser with copies properly certified or authenticated of each of the following additional documents related to the Trust and the Fund:

 

 

 

 

The Trust will promptly furnish the Adviser from time to time with copies, properly certified or authenticated, of all amendments of or supplements, if any, to the foregoing, including the Prospectus, the SAI and the Registration Statement.

 

 

(a)       The Declaration, a copy of which, together with all amendments thereto, is on file in the Office of the Secretary of The Commonwealth of Massachusetts, provides that the name “DWS Value Equity Trust” refers to the Trustees under the Declaration collectively as Trustees and not as individuals or personally, and that no shareholder of the Fund, or Trustee, officer, employee, or agent of the Trust, will be subject to claims against or obligations of the Trust or of the Fund to any extent whatsoever, but that the Trust estate only will be liable.

 

(b)       The Adviser is hereby expressly put on notice of the limitation of liability as set forth in the Declaration and it agrees that the obligations assumed by the Trust on behalf of the Fund pursuant to this Agreement will be limited in all cases to the Fund and its assets, and it will not seek satisfaction of any such obligation from the shareholders or any shareholder of the Fund or any other series of the Trust, or from any Trustee, officer, employee or agent of the Trust. The Adviser understands that the rights and obligations of the Fund, or series, under the Declaration are separate and distinct from those of any and all other series.

 

 

13.   Miscellaneous.

 

(a)    The captions in this Agreement are included for convenience of reference only and in no way define or limit any of the provisions hereof or otherwise affect their construction or effect. This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

 

(b)   Any question of interpretation of any term or provision of this Agreement having a counterpart in or otherwise derived from a term or provision of the Investment Company Act will be resolved by reference to such term or provision of the Investment Company Act and to interpretations thereof, if any, by the United States Courts or in the absence of any controlling decision of any such court, by rules, regulations or orders of the SEC issued pursuant to the Investment Company Act. In addition, where the effect of a requirement of the Investment Company Act reflected in any provision of this Agreement is modified or interpreted by any applicable order or orders of the SEC or any rules or regulations adopted by, or interpretative releases of, the SEC thereunder, such provision will be deemed to incorporate the effect of such order, rule, regulation or interpretative release.

 

(c)    This Agreement will be construed in accordance with the laws of The Commonwealth of Massachusetts without regard to choice of law or conflicts of law principles thereof, provided that nothing in this Agreement will be construed in a manner inconsistent with the Investment Company Act, or in a manner which would cause the Fund to fail to comply with the requirements of Subchapter M of the Code.

 

(d)       This Agreement constitutes the entire agreement between the parties concerning the subject matter, and supersedes any and all prior understandings.

 

(e)       If any provision, term or part of this Agreement is deemed to be void, unenforceable, or invalid for any reason by a court decision, statute, rule, or otherwise, the remaining provisions of this Agreement will remain in full force and effect as if such invalid provision, term or part was not a part of this Agreement.

 

(f)     This Agreement will supersede all prior investment advisory or management agreements entered into between the Adviser and the Trust on behalf of the Fund.

 

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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the day and year first written above.

 

DWS Value Equity Trust

 

By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇

 

 

DWS Value Equity Trust,

on behalf of

DWS S&P 500 Plus Fund

 

By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇

 

 

Deutsche Investment Management Americas Inc.

 

By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇

 

 

Deutsche Investment Management Americas Inc.

 

By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇