Exhibit (d)
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:
1. Appointment and Services.
(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
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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:
(i) periodic reports on the investment
performance of the Fund;
(ii) additional reports and information related
to the Adviser's duties under this Agreement
as the Board of Trustees may reasonably
request; and
(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
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concerning the assets belonging to the Fund, in each case subject to
compliance with applicable privacy standards.
2. Unitary Fee.
(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 Class S shares 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 Class S shares 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
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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.
3. Expenses.
(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
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"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.
5. Selection of Brokers and Affiliated Transactions.
(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.
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(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.
6. Limitation of Liability of Manager.
(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.
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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.
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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:
(i) The Amended and Restated Declaration dated June 2, 2008, as amended
and/or restated to date, together with all filed certificates regarding
the establishment and designation of a series of Shares of the Trust,
to the extent applicable.
(ii) By-Laws of the Trust as in effect on the date hereof.
(iii) Resolutions of the Trustees of the Trust approving the form of
this Agreement.
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.
12. Limitation of Liability for Claims.
(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.
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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/Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President & Secretary
DWS Value Equity Trust,
on behalf of
DWS S&P 500 Plus Fund
By: /s/Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President & Secretary
Deutsche Investment Management Americas Inc.
By: /s/Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Operating Officer
Deutsche Investment Management Americas Inc.
By: /s/Xxxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Managing Director
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