INVESTMENT ADVISORY AGREEMENT
CLAYMORE/ZACKS MULTI-CAP OPPORTUNITIES FUND
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement"), dated as of
September 29, 2005, between Claymore/Zacks Multi-Cap Opportunities Fund (the
"Fund"), a series of Claymore Trust, a Delaware statutory trust (the "Trust"),
and Claymore Advisors, LLC, a Delaware limited liability company (the
"Adviser").
WHEREAS, the Adviser has agreed to furnish investment advisory services
to the Trust, an open-end management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, this Agreement has been approved in accordance with the
provisions of the 1940 Act, and the Adviser is willing to furnish such services
upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, it is agreed by and between the parties hereto as
follows:
1. In General. The Adviser agrees, all as more fully set forth herein,
to act as investment adviser to the Fund with respect to the investment of the
Fund's assets and to supervise and arrange for the day-to-day operations of the
Fund and the purchase of securities for and the sale of securities held in the
investment portfolio of the Fund.
2. Duties and Obligations of the Adviser with Respect to Investment of
Assets of the Fund. Subject to the succeeding provisions of this section and
subject to the direction and control of the Trust's Board of Trustees, the
Adviser shall (i) act as investment adviser for and supervise and manage the
investment and reinvestment of the Fund's assets and, in connection therewith,
have complete discretion in purchasing and selling securities and other assets
for the Fund and in voting, exercising consents and exercising all other rights
appertaining to such securities and other assets on behalf of the Fund; (ii)
supervise the investment program of the Fund and the composition of its
investment portfolio; and (iii) arrange, subject to the provisions of paragraph
3 hereof, for the purchase and sale of securities and other assets held in the
investment portfolio of the Fund. In performing its duties under this Section 2,
the Adviser may delegate some or all of its duties and obligations under this
Agreement to one or more investment sub- advisers, including but not limited to
delegating the voting of proxies relating to the Fund's portfolio securities in
accordance with the proxy voting policies and procedures of such investment
sub-adviser; provided, however, that any such delegation shall be pursuant to an
agreement with terms agreed upon by the Trust and approved in a manner
consistent with the 1940 Act and provided, further, that no such delegation
shall relieve the Adviser from its duties and obligations of management and
supervision of the management of the Fund's assets pursuant to this Agreement
and to applicable law.
3. Covenants. In the performance of its duties under this Agreement,
the Adviser:
(a) shall at all times conform to, and act in accordance with, any
requirements imposed by: (i) the provisions of the 1940 Act and the Investment
Advisers Act of 1940, as
amended, and all applicable Rules and Regulations of the Securities and Exchange
Commission (the "SEC"); (ii) any other applicable provision of law; (iii) the
provisions of the Agreement and Declaration of Trust and By-Laws of the Trust,
as such documents are amended from time to time; (iv) the investment objectives
and policies of the Fund as set forth in its Registration Statement on Form
N-1A; and (v) any policies and determinations of the Board of Trustees of the
Trust;
(b) will place orders either directly with the issuer or with any
broker or dealer. Subject to the other provisions of this paragraph, in placing
orders with brokers and dealers, the Adviser will attempt to obtain the best
price and the most favorable execution of its orders. In placing orders, the
Adviser will consider the experience and skill of the firm's securities traders
as well as the firm's financial responsibility and administrative efficiency.
Consistent with this obligation, the Adviser may select brokers on the basis of
the research, statistical and pricing services they provide to the Fund and
other clients of the Adviser. Information and research received from such
brokers will be in addition to, and not in lieu of, the services required to be
performed by the Adviser hereunder. A commission paid to such brokers may be
higher than that which another qualified broker would have charged for effecting
the same transaction, provided that the Adviser determines in good faith that
such commission is reasonable in terms either of the transaction or the overall
responsibility of the Adviser to the Fund and its other clients and that the
total commissions paid by the Fund will be reasonable in relation to the
benefits to the Fund over the long-term. In no instance, however, will the
Fund's securities be purchased from or sold to the Adviser, or any affiliated
person thereof, except to the extent permitted by the SEC or by applicable law;
and
(c) will treat confidentially and as proprietary information of the
Fund all records and other information relative to the Fund, and the Fund's
prior, current or potential shareholders, and will not use such records and
information for any purpose other than performance of its responsibilities and
duties hereunder, except after prior notification to and approval in writing by
the Fund, which approval shall not be unreasonably withheld and may not be
withheld where the Adviser may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such information by
duly constituted authorities, or when so requested by the Fund.
4. Services Not Exclusive. Nothing in this Agreement shall prevent the
Adviser or any officer, employee or other affiliate thereof from acting as
investment adviser for any other person, firm or corporation, or from engaging
in any other lawful activity, and shall not in any way limit or restrict the
Adviser or any of its officers, employees or agents from buying, selling or
trading any securities for its or their own accounts or for the accounts of
others for whom it or they may be acting; provided, however, that the Adviser
will undertake no activities which, in its judgment, will adversely affect the
performance of its obligations under this Agreement.
5. Books and Records. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Adviser hereby agrees that all records which it
maintains for the Fund are the property of the Trust and further agrees to
surrender promptly to the Trust any such records upon the Trust's request. The
Adviser further agrees to preserve for the periods prescribed by Rule 31a-2
under the 1940 Act the records required to be maintained by Rule 31a-1 under the
1940 Act.
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6. Agency Cross Transactions. From time to time, the Adviser or brokers
or dealers affiliated with it may find themselves in a position to buy for
certain of their brokerage clients (each an "Account") securities which the
Adviser's investment advisory clients wish to sell, and to sell for certain of
their brokerage clients securities which advisory clients wish to buy. Where one
of the parties is an advisory client, the Adviser or the affiliated broker or
dealer cannot participate in this type of transaction (known as a cross
transaction) on behalf of an advisory client and retain commissions from one or
both parties to the transaction without the advisory client's consent. This is
because in a situation where the Adviser is making the investment decision (as
opposed to a brokerage client who makes his own investment decisions), and the
Adviser or an affiliate is receiving commissions from both sides of the
transaction, there is a potential conflicting division of loyalties and
responsibilities on the Adviser's part regarding the advisory client. The
Securities and Exchange Commission has adopted a rule under the Investment
Advisers Act of 1940, as amended, which permits the Adviser or its affiliates to
participate on behalf of an Account in agency cross transactions if the advisory
client has given written consent in advance. By execution of this Agreement, the
Trust authorizes the Adviser or its affiliates to participate in agency cross
transactions involving an Account. The Trust may revoke its consent at any time
by written notice to the Adviser.
7. Expenses. During the term of this Agreement, the Adviser will bear
all costs and expenses of its employees and any overhead incurred in connection
with its duties hereunder and shall bear the costs of any salaries or trustees
fees of any officers or trustees of the Trust who are affiliated persons (as
defined in the 0000 Xxx) of the Adviser.
8. Compensation of the Adviser. The Fund agrees to pay to the Adviser
and the Adviser agrees to accept as full compensation for all services rendered
by the Adviser as such, a fee accrued daily and paid monthly in arrears at an
annual rate equal to 0.90% of the Fund's average daily net assets. For any
period less than a month during which this Agreement is in effect, the fee shall
be prorated according to the proportion which such period bears to a full month
of 28, 29, 30 or 31 days, as the case may be.
9. Limitation on Liability.
(a) The Adviser will not be liable for any error of judgment or mistake
of law or for any loss suffered by Adviser or by the Trust in connection with
the performance of this Agreement, except a loss resulting from a breach of
fiduciary duty with respect to the receipt of compensation for services or a
loss resulting from willful misfeasance, bad faith or gross negligence on its
part in the performance of its duties or from reckless disregard by it of its
duties under this Agreement.
(b) The Fund may, but shall not be required to, make advance payments
to the Adviser in connection with the expenses of the Adviser in defending any
action with respect to which damages or equitable relief might be sought against
the Adviser under this Section (which payments shall be reimbursed to the Fund
by the Adviser as provided below) if the Fund receives (i) a written affirmation
of the Adviser's good faith belief that the standard of conduct necessary for
the limitation of liability in this Section has been met and (ii) a written
undertaking to reimburse the Fund whether or not the Adviser shall be deemed to
have liability under this Section, such reimbursement to be due upon (1) a final
decision on the merits by a court or other
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body before whom the proceeding was brought as to whether or not the Adviser is
liable under this Section or (2) in the absence of such a decision, upon the
request of the Adviser for reimbursement by a majority vote of a quorum
consisting of trustees of the Trust who are neither "interested persons" of the
Trust (as defined in Section 2(a)(19) of the 0000 Xxx) nor parties to the
proceeding ("Disinterested Non-Party Trustees"). In addition, at least one of
the following conditions must be met: (A) the Adviser shall provide a security
for such Adviser undertaking, (B) the Fund shall be insured against losses
arising by reason of any lawful advance, or (C) a majority of a quorum of the
Disinterested Non-Party Trustees of the Trust or an independent legal counsel in
a written opinion, shall determine, based on a review of readily available facts
(as opposed to a full trial-type inquiry), that there is reason to believe that
the Adviser ultimately will be found not to be liable under this Section.
10. Duration and Termination. This Agreement shall become effective as
of the date hereof and, unless sooner terminated with respect to the Fund as
provided herein, shall continue in effect for a period of two years. Thereafter,
if not terminated, this Agreement shall continue in effect with respect to the
Fund for successive periods of 12 months, provided such continuance is
specifically approved at least annually by both (a) the vote of a majority of
the Trust's Board of Trustees or the vote of a majority of the outstanding
voting securities of the Fund at the time outstanding and entitled to vote, and
(b) 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. Notwithstanding the
foregoing, this Agreement may be terminated by the Trust at any time, without
the payment of any penalty, upon giving the Adviser 60 days' notice (which
notice may be waived by the Adviser), provided that such termination by the
Trust shall be directed or approved by the vote of a majority of the Trustees of
the Trust in office at the time or by the vote of the holders of a majority of
the voting securities of the Fund at the time outstanding and entitled to vote,
or by the Adviser on 60 days' written notice (which notice may be waived by the
Trust). This Agreement will also immediately terminate in the event of its
assignment. (As used in this Agreement, the terms "majority of the outstanding
voting securities," "interested person" and "assignment" shall have the same
meanings of such terms in the 1940 Act.)
11. Notices. Any notice under this Agreement shall be in writing to the
other party at such address as the other party may designate from time to time
for the receipt of such notice and shall be deemed to be received on the earlier
of the date actually received or on the fourth day after the postmark if such
notice is mailed first class postage prepaid.
12. Amendment of this Agreement. This Agreement may only be amended by
an instrument in writing signed by the parties hereto. Any amendment of this
Agreement shall be subject to the 1940 Act.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware for contracts to be performed
entirely therein without reference to choice of law principles thereof and in
accordance with the applicable provisions of the 1940 Act.
14. Use of the Name Claymore. The Adviser has consented to the use by
the Fund of the name or identifying word "Claymore" in the name of the Fund.
Such consent is conditioned
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upon the employment of the Adviser as the investment adviser to the Fund. The
name or identifying word "Claymore" may be used from time to time in other
connections and for other purposes by the Adviser and any of its affiliates. The
Adviser may require the Fund to cease using "Claymore" in the name of the Fund
if the Fund ceases to employ, for any reason, the Adviser, any successor thereto
or any affiliate thereof as investment adviser of the Fund.
15. Additional Limitation of Liability. The parties hereto are
expressly put on notice that a Certificate of Trust, referring to the Trust's
Agreement and Declaration of Trust (the "Certificate"), is on file with the
Secretary of the state of Delaware. The Certificate was executed by a trustee of
the Trust on behalf of the Trust as trustee, and not individually, and, as
provided in the Trust's Agreement and Declaration of Trust, the obligations of
the Trust are not binding on the Trust's trustees, officers or shareholders
individually but are binding only upon the assets and property of the Trust, or
the particular series in question, as the case may be.
16. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding on, and shall inure to the
benefit of the parties hereto and their respective successors.
17. Counterparts. This Agreement may be executed in counterparts by the
parties hereto, each of which shall constitute an original counterpart, and all
of which, together, shall constitute one Agreement.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by their duly authorized officers, all as of the day
and the year first above written.
CLAYMORE TRUST ON BEHALF OF
CLAYMORE/ZACKS MULTI-CAP
OPPORTUNITIES FUND
By:/s/ Xxxxxxx X. Xxxxxx III
---------------------------
Name: Xxxxxxx X. Xxxxxx III
Title: Vice President
CLAYMORE ADVISORS, LLC
By:/s/ Xxxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Senior Managing
Director and
General Counsel
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