INVESTMENT ADVISORY AGREEMENT
CLAYMORE EXCHANGE-TRADED FUND TRUST 2
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement"), dated as of October 14,
2009, between Claymore Exchange-Traded Fund Trust 2, a Delaware statutory trust
(the "Trust"), and Claymore Advisors, LLC, a Delaware limited liability company
(the "Adviser").
WHEREAS, the Trust, an open-end management investment company registered under
the Investment Company Act of 1940, as amended (the "1940 Act"), is authorized
to issue an unlimited number of shares with each series; and in separate series
representing interests in a separate portfolio of securities and other assets;
and
WHEREAS, the Trust intends to offer its shares in one or more such series, as
listed in Exhibit A or B hereto, which may be amended from time to time to add
or remove a series (each, a "Fund"), and invest the proceeds in securities,
WHEREAS, the Trust had previously retained the Adviser to render investment
advisory services hereunder with respect to each Fund pursuant to an Investment
Advisory Agreement between the Trust and the Adviser dated as of August 16,
2006, as amended as of August 3, 2009 (the "Prior Agreement");
WHEREAS, the Prior Agreement was terminated as a result of its assignment under
the 1940 Act, whereupon the Trust and the Adviser entered into an Interim
Investment Advisory Agreement dated as of October 14, 2009;
WHEREAS, the Trust wishes to continue to have the Adviser furnish investment
advisory services to each Fund on an ongoing basis;
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 each Fund's assets and to supervise and arrange for the day-to-day operations
of each Fund and the purchase of securities for and the sale of securities held
in the investment portfolio of each Fund.
2. Duties and Obligations of the Adviser with Respect to Investment
of Assets of each 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 each Fund's assets and, in connection therewith,
have complete discretion in purchasing and selling securities and other assets
for each Fund and in voting, exercising consents and exercising all other rights
appertaining to such securities and other assets on behalf of each Fund; (ii)
supervise the investment program of each 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 each 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 a 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 each Fund's assets pursuant to
this Agreement and to applicable law. The Adviser shall initially determine and
make such modifications to the identity and number of shares of the securities
to be accepted pursuant to each Fund's benchmark index in exchange for "Creation
Units" for each Fund and the securities that will be applicable that day to
redemption requests received for each Fund as may be necessary as a result of
rebalancing adjustments and corporate action events (and may give directions to
the Trust's custodian with respect to such designations).
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 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 each Fund as set forth in the Trust's
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 each
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 each Fund and its other
clients and that the total commissions paid by such Fund will be
reasonable in relation to the benefits to the Fund over the long-term.
In no instance, however, will a 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
each Fund all records and other information relative to each Fund, and
each 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 applicable 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
such 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
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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 each 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.
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.
During the term of this Agreement for each Fund listed on Exhibit A hereto,
the Adviser shall pay all of the expenses of each such Fund, except for the fee
payments under this Agreement, payments under the Fund's 12b-1 plan, if any,
brokerage expenses, taxes, interest, litigation expenses and other extraordinary
expenses.
8. Compensation of the Adviser. Each 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 the percentage of the Fund's average daily net assets
set forth on Exhibit A or B hereto, as applicable. 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
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negligence on its part in the performance of its duties or from
reckless disregard by it of its duties under this Agreement.
(b) Each 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 applicable 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 applicable 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 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) each 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
with respect to each Fund as of the date (the "Effective Date") this Agreement
has been approved by (a) 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) the vote of a majority of the outstanding voting securities of each Fund
at the time outstanding and entitled to vote. Unless sooner terminated with
respect to each Fund as provided herein, this Agreement shall continue in effect
for a period of two years from the Effective Date. Thereafter, if not
terminated, this Agreement shall continue in effect with respect to each 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 each 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
each 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.)
As additional series, other than the Funds, are established, the Agreement
shall become effective with respect to each such series listed in Exhibit A or
B, as applicable, at the annual fee set forth in such Exhibit upon the initial
public offering of such new series, provided that the Trust has previously
approved this Agreement for continuation as provided in this Section 10.
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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 each Fund of the name or identifying word "Claymore" in the name of each
Fund. Such consent is conditioned upon the employment of the Adviser as the
investment adviser to each 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 a Fund to cease using
"Claymore" in the name of the Fund if such Fund ceases to employ, for any
reason, the Adviser, any successor thereto or any affiliate thereof as
investment adviser of such 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 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.
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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.
CLAYMORE EXCHANGE-TRADED FUND TRUST 2
By:
--------------------------
Name:
Title:
CLAYMORE ADVISORS, LLC
By:
--------------------------
Name:
Title:
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EXHIBIT A
As consideration for the Adviser's services to each of the Funds listed below,
the Adviser shall receive from each Fund a unitary fee of the following annual
percentages of the Fund's average daily net assets during the month.
Name of Series Annual Advisory Fee
-------------- (as a % of average daily net assets)
-----------------------------------
Claymore/BNY Xxxxxx XX Euro-Pacific LDRs 0.35%
ETF
Claymore/AlphaShares China All-Cap ETF 0.70%
Claymore Shipping ETF 0.65%
EXHIBIT B
CLAYMORE EXCHANGE-TRADED FUND TRUST 2
Annual Advisory Fee
Name of Series (as a % of average daily net assets)
-------------- ------------------------------------
Claymore/Beacon Global Exchanges, Brokers & Asset Managers ETF 0.50%
Claymore S&P Global Water Index ETF 0.50%
Claymore/SWM Canadian Energy Income Index ETF 0.50%
Claymore/Zacks Country Rotation ETF 0.50%
Claymore/Zacks International Multi-Asset Income Index ETF 0.50%
Claymore/Xxxx Report Global Luxury Index ETF 0.50%
Claymore/Clear Global Timber Index ETF 0.50%
Claymore/AlphaShares China Real Estate ETF 0.50%
Claymore/Clear Canadian Royalty Trust Index ETF 0.50%
Claymore/AlphaShares China Small Cap Index ETF 0.55%
Claymore/MAC Global Solar Energy Index ETF 0.50%
Claymore/BNY Mellon Frontier Markets ETF 0.50%
Claymore/NYSE Arca Airline ETF 0.50%
