Exhibit 99.(g)(i)
INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement"), dated as of
__________, 2005, between Fiduciary/Claymore Dynamic Equity Fund, 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, a closed-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 Trust with respect to the investment of the
Trust's assets and to supervise and arrange for the day-to-day operations
of the Trust and the purchase of securities for and the sale of securities
held in the investment portfolio of the Trust.
2. DUTIES AND OBLIGATIONS OF THE ADVISER WITH RESPECT TO INVESTMENT OF ASSETS
OF THE TRUST. 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 Trust's assets and, in connection
therewith, have complete discretion in purchasing and selling securities
and other assets for the Trust and in voting, exercising consents and
exercising all other rights appertaining to such securities and other
assets on behalf of the Trust; (ii) supervise the investment program of the
Trust and the composition of its investment portfolio; and (iii) arrange,
subject to the provisions of paragraph 4 hereof, for the purchase and sale
of securities and other assets held in the investment portfolio of the
Trust. 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 sub-investment advisers; 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
Trust's assets pursuant to this Agreement and to applicable law.
3. DUTIES AND OBLIGATIONS OF ADVISER WITH RESPECT TO THE ADMINISTRATION OF THE
TRUST. The Adviser also agrees to furnish office facilities and equipment
and clerical, bookkeeping and administrative services (other than such
services, if any, provided by the Trust's Custodian, Transfer Agent,
Administrator and Dividend Disbursing Agent and other service providers)
for the Trust. To the extent requested by the Trust, the Adviser agrees to
provide the following administrative services:
(a) Oversee the determination and publication of the Trust's net asset
value in accordance with the Trust's policy as adopted from time to
time by the Board of Trustees;
(b) Oversee the maintenance by the Trust's Custodian and Transfer Agent
and Dividend Disbursing Agent of certain books and records of the
Trust as required under Rule 31a-1(b)(4) of the 1940 Act and maintain
(or oversee maintenance by the Trust's Administrator or such other
persons as approved by the Board of Trustees) such other books and
records required by law or for the proper operation of the Trust;
(c) Oversee the preparation and filing of the Trust's federal, state and
local income tax returns and any other required tax returns;
(d) Review the appropriateness of and arrange for payment of the Trust's
expenses;
(e) Prepare (or oversee the preparation) for review and approval by
officers of the Trust financial information for the Trust's
semi-annual and annual reports, proxy statements and other
communications with shareholders required or otherwise to be sent to
Trust shareholders, and arrange for the printing and dissemination of
such reports and communications to shareholders;
(f) Prepare (or oversee the preparation) for review by an officer of the
Trust the Trust's periodic financial reports required to be filed with
the Securities and Exchange Commission ("SEC") on Form N-SAR, N-CSR
and such other reports, forms and filings, as may be mutually agreed
upon;
(g) Prepare reports relating to the business and affairs of the Trust as
may be mutually agreed upon and not otherwise appropriately prepared
by the Trust's Custodian, counsel or auditors;
(h) Prepare (or oversee the preparation of) such information and reports
as may be required by any stock exchange or exchanges on which the
Trust's shares are listed;
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(i) Make such reports and recommendations to the Board of Trustees
concerning the performance of the independent accountants as the Board
of Trustees may reasonably request or deems appropriate;
(j) Make such reports and recommendations to the Board of Trustees
concerning the performance and fees of the Trust's Custodian, Transfer
Agent, Administrator and Dividend Disbursing Agent as the Board of
Trustees may reasonably request or deems appropriate;
(k) Oversee and review calculations of fees paid to the Trust's service
providers;
(l) Oversee the Trust's portfolio and perform necessary calculations as
required under Section 18 of the 1940 Act;
(m) Consult with the Trust's officers, independent accountants, legal
counsel, Custodian, Administrator or other accounting agent, Transfer
Agent and Dividend Disbursing Agent in establishing the accounting
policies of the Trust and monitor financial and shareholder accounting
services;
(n) Review implementation of any share purchase programs authorized by the
Board of Trustees;
(o) Determine the amounts available for distribution as dividends and
distributions to be paid by the Trust to its shareholders; prepare and
arrange for the printing of dividend notices to shareholders; and
provide the Trust's Dividend Disbursing Agent and Custodian with such
information as is required for such parties to effect the payment of
dividends and distributions and to implement the Trust's dividend
reinvestment plan;
(p) Prepare such information and reports as may be required by any banks
from which the Trust borrows funds;
(q) Provide such assistance to the Custodian and the Trust's counsel and
auditors as generally may be required to properly carry on the
business and operations of the Trust;
(r) Assist in the preparation and filing of Forms 3, 4, and 5 pursuant to
Section 16 of the Securities Exchange Act of 1934, as amended, and
Section 30(f) of the 1940 Act for the officers and trustees of the
Trust, such filings to be based on information provided by those
persons;
(s) Respond to or refer to the Trust's officers or Transfer Agent,
shareholder (including any potential shareholder) inquiries relating
to the Trust; and
(t) Supervise any other aspects of the Trust's administration as may be
agreed to by the Trust and the Adviser.
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All services are to be furnished through the medium of any directors, officers
or employees of the Adviser or its affiliates as the Adviser deems appropriate
in order to fulfill its obligations hereunder. The Trust will reimburse the
Adviser or its affiliates for all out-of- pocket expenses incurred by them in
connection with the performance of the administrative services described in this
paragraph 3.
4. 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, as amended and restated, and
By-Laws of the Trust, as such documents are amended from time to time;
(iv) the investment objectives and policies of the Trust as set forth
in its Registration Statement on Form N-2; 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 Trust
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 Trust and its other
clients and that the total commissions paid by the Trust will be
reasonable in relation to the benefits to the Trust over the
long-term. In no instance, however, will the Trust'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 Trust
all records and other information relative to the Trust, and the
Trust'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
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writing by the Trust, 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 Trust.
5. 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.
6. 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 Trust 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.
7. 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.
8. 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
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officers or trustees of the Trust who are affiliated persons (as defined in
the 0000 Xxx) of the Adviser.
9. COMPENSATION OF THE ADVISER.
(a) The Trust 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 monthly fee (the "Investment Advisory Fee") in arrears at
an annual rate equal to 1.00% of the average daily value of the
Trust's Managed Assets. "Managed Assets" means the total assets of the
Trust (including the assets attributable to the proceeds from any
financial leverage) minus the sum of the accrued liabilities (other
than the aggregate indebtedness constituting financial leverage). The
liquidation preference of any preferred shares of the Trust, if any,
constituting financial leverage shall not be considered a liability of
the Trust. 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.
(b) For purposes of this Agreement, the total assets of the Trust shall be
calculated pursuant to the procedures adopted by resolutions of the
Trustees of the Trust for calculating the value of the Trust's assets
or delegating such calculations to third parties.
10. 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 Trust 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 Trust
by the Adviser as provided below) if the Trust 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 Trust 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 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
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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 Trust 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.
11. DURATION AND TERMINATION. This Agreement shall become effective as of
the date hereof and, unless sooner terminated with respect to the Trust 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
Trust 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 Trust at the time outstanding and entitled to vote, and
(b) 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. 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 Trust 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.)
13. 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.
14. AMENDMENT OF THIS AGREEMENT. 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 which enforcement of the change, waiver,
discharge or termination is sought. Any amendment of this Agreement shall be
subject to the 1940 Act.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware for contracts to be per formed
entirely therein without reference to choice of law principles thereof and in
accordance with the applicable provisions of the 1940 Act.
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16. USE OF THE NAME CLAYMORE. The Adviser has consented to the use by the
Trust of the name or identifying word "Claymore" in the name of the Trust. Such
consent is conditioned upon the employment of the Adviser as the investment
adviser to the Trust. 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 Trust to cease using "Claymore"
in the name of the Trust if the Trust ceases to employ, for any reason, the
Adviser, any successor thereto or any affiliate thereof as investment adviser of
the Trust.
17. 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.
18. 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.
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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.
FIDUCIARY/CLAYMORE DYNAMIC
EQUITY FUND
By:
-----------------------------
Name: Xxxxxxxxxx Xxxxxxxxx
Title: Secretary
CLAYMORE ADVISORS, LLC
By:
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Name: Xxxxxxxx Xxxxxxx
Title: Senior Managing Director
and General Counsel
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