AMENDED AND RESTATED
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made at Boston,
Massachusetts this 10th day of September, 2009 hereby amends and restates in its
entirety the Amended and Restated Agreement and Declaration of Trust
dated
June 23,
2000, as heretofore amended from time to time, and further amends the Amended
and Restated Agreement and Declaration of Trust dated June 23, 2000, by amending
and restating Exhibit 3.6 in its entirety as attached hereto, by the Trustees
hereunder and by the holders of shares of beneficial interest issued hereunder
and to be issued hereunder as hereinafter provided. This Amended and
Restated Agreement and Declaration of Trust shall be effective upon filing with
the Secretary of The Commonwealth of Massachusetts:
WITNESSETH
that
WHEREAS
the Trustees have agreed to manage all property coming into their hands as
trustees of a Massachusetts business trust in accordance with the provisions
hereinafter set forth.
NOW,
THEREFORE, the Trustees hereby direct that this Amended and Restated Agreement
and Declaration of Trust be filed with the Secretary of The Commonwealth of
Massachusetts and with the City Clerk of the City of Boston and do hereby
declare that they will hold all cash, securities and other assets, which they
may from time to time acquire in any manner as Trustees hereunder IN TRUST to
manage and dispose of the same upon the following terms and conditions for the
pro rata benefit of the holders from time to time of Shares in this Trust as
hereinafter set forth.
ARTICLE
I.
Name and
Definitions
Section
1. This
Trust shall be known as GMO Trust with its principal place of business at 00
Xxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and the Trustees shall
conduct the business of the Trust under that name or any other name as they may
from time to time determine.
Section
2. Definitions. Whenever
used herein, unless otherwise required by the context or specifically
provided:
(a) “Trust”
refers to the Massachusetts business trust established by this Amended and
Restated Agreement and Declaration of Trust, as amended from time to
time;
(b) “Trustees”
refers to the Trustees of the Trust named in Article IV hereof or elected in
accordance with such Article;
(c) “Shares”
means the equal proportionate units of interest into which the beneficial
interest in the Trust or in the Trust property belonging to any Series of the
Trust (or in the property belonging to any Series allocable to any Class of that
Series) (as the context may require) shall be divided from time to
time;
(d) “Shareholder”
means a record owner of Shares;
(e) “1940
Act” refers to the Investment Company Act of 1940 and the Rules and Regulations
thereunder, all as amended from time to time;
(f) The terms
“Commission” and “principal underwriter” shall have the meanings given to them
in the 1940 Act;
(g) “Declaration
of Trust” shall mean this Agreement and Declaration of Trust, as amended or
restated from time to time;
(h) “By-Laws”
shall mean the By-Laws of the Trust as amended from time to time;
(i) “Series
Company” refers to the form of registered open-end investment company described
in Section 18(f)(2) of the 1940 Act or in any successor statutory
provision;
(j) “Series”
refers to Series of Shares established and designated under or in accordance
with the provisions of Article III; and
(k) “Class”
refers to any Class of Shares established and designated under or in accordance
with the provisions of Article III. The Shares of any Class shall
represent a subset of Shares of a Series, and together with all other Classes of
the same Series, shall constitute all Shares of that Series.
ARTICLE
II.
Purpose
of Trust
The
purpose of the Trust is to provide investors a managed investment primarily in
securities (including options), debt instruments, commodities, commodity
contracts and options thereon.
ARTICLE
III.
Shares
Section
1. Division
of Beneficial Interest. The beneficial interest in the Trust shall at
all times be divided into an unlimited number of transferable Shares, without
par value. Subject to the provisions of Section 6 of this Article
III, each Share shall have voting rights as provided in Article V hereof, and
holders of the Shares of any Series or Class shall be entitled to receive
dividends, when and as declared with respect thereto in the manner provided in
Article VI, Section 1 hereof. No Share shall have any priority or
preference over any other Share of the same Series and Class with respect to
dividends or distributions upon termination of the Trust or of such Series or
Class made pursuant to Article VIII, Section 4 hereof. All dividends
and distributions shall be made ratably among all Shareholders of a particular
Series or Class from the assets belonging to such Series (or, in the case of a
Class, allocable to such Class) according to the number of Shares of such Series
or Class held of record by such Shareholders on the record date for any dividend
or on the date of termination, as the case may be. Shareholders shall
have no preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust. The Trust may from time to time
divide or combine the Shares of any particular Series or Class into a greater or
lesser number of Shares of that Series or Class without thereby changing the
proportionate beneficial interest of the Shares of that Series or Class in the
assets belonging to that Series (or, in the case of a Class, allocable to such
Class) in any way affecting the rights of Shares of any other Series or
Class.
Section
2. Ownership
of Shares. The ownership of Shares shall be recorded on the books of
the Trust or a transfer or similar agent for the Trust, which books shall be
maintained separately for the Shares of each Series and Class. No
certificates certifying the ownership of Shares shall be issued except as the
Trustees may otherwise determine from time to time. The Trustees may
make such rules as they consider appropriate for the transfer of Shares of each
Series and Class and similar matters. The record books of the Trust
as kept by the Trust or any transfer or similar agent, as the case may be, shall
be conclusive as to who are the Shareholders of each Series and Class and as to
the number of Shares of each Series and Class held from time to time by
each.
Section
3. Investments
in the Trust. The Trustees shall accept investments in the Trust from
such persons and on such terms and for such consideration as they from time to
time authorize.
Section
4. Status
of Shares and Limitation of Personal Liability. Shares shall be
deemed to be personal property giving only the rights provided in this
instrument. Every Shareholder by virtue of having become a
Shareholder shall be held to have expressly assented and agreed to the terms
hereof and to have become a party hereto. The death of a Shareholder
during the continuance of the Trust shall not operate to terminate the same nor
entitle the representative of any deceased Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees, but
entitles such representative only to the rights of said deceased Shareholder
under this Trust. Ownership of Shares shall not entitle the
Shareholder to any title in or to the whole or any part of the Trust property or
right to call for a partition or division of the same or for an accounting, nor
shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer,
employee or agent of the Trust shall have any power to bind personally any
Shareholders, nor except as specifically provided herein to call upon any
Shareholder for the payment of any sum of money or assessment whatsoever other
than such as the Shareholder may at any time personally agree to
pay.
Section
5. Power
of Trustees to Change Provisions Relating to Shares. Notwithstanding
any other provisions of this Declaration of Trust and without limiting the power
of the Trustees to amend the Declaration of Trust as provided elsewhere herein,
the Trustees shall have the power to amend this Declaration of Trust, at any
time and from time to time, in such manner as the Trustees may determine in
their sole discretion, without the need for Shareholder action, so as to add to,
delete, replace or otherwise modify any provisions relating to the Shares
contained in this Declaration of Trust for the purpose of (i) responding to or
complying with any regulations, orders, rulings or interpretations of any
governmental agency or any laws, now or hereafter applicable to the Trust, or
(ii) designating and establishing Series and Classes in addition to the Series
and Classes established in Section 6 of this Article III; provided that before
adopting any such amendment without Shareholder approval the Trustees shall
determine that it is consistent with the fair and equitable treatment of all
Shareholders. The establishment and designation of any Series or
Class of Shares in addition to the Series and Classes established and designated
in Section 6 of this Article III shall be effective upon the execution by a
majority of the then Trustees of an amendment to this Declaration of Trust,
taking the form of a complete restatement or otherwise, setting forth such
establishment and designation and the relative rights and preferences of such
Series or Class, as the case may be, or as otherwise provided in such
instrument.
Without
limiting the generality of the foregoing, the Trustees may, for the above-stated
purposes, amend the Declaration of Trust to:
(a) create
one or more Series or Classes of Shares (in addition to any Series or Classes
already existing or otherwise) with such rights and preferences and such
eligibility requirements for investment therein as the Trustees shall determine
and reclassify any or all outstanding Shares as shares of particular Series or
Classes in accordance with such eligibility requirements;
(b) amend any
of the provisions set forth in paragraphs (a) through (j) of Section 6 of this
Article III;
(c) combine
one or more Series or Classes of Shares into a single Series or Class on such
terms and conditions as the Trustees shall determine;
(d) change or
eliminate any eligibility requirements for investment in Shares of any Series or
Class, including without limitation the power to provide for the issue of Shares
of any Series or Class in connection with any merger or consolidation of the
Trust with another trust or company or any acquisition by the Trust of part or
all of the assets of another trust or company;
(e) change
the designation of any Series or Class of Shares;
(f) change
the method of allocating dividends among the various Series and Classes of
Shares;
(g) allocate
any specific assets or liabilities of the Trust or any specific items of income
or expense of the Trust to one or more Series or Classes of Shares;
and
(h) specifically
allocate assets to any or all Series or Classes of Shares or create one or more
additional Series or Classes of Shares which are preferred over all other Series
or Classes of Shares in respect of assets specifically allocated thereto or any
dividends paid by the Trust with respect to any net income, however determined,
earned from the investment and reinvestment of any assets so allocated or
otherwise and provide for any special voting or other rights with respect to
such Series or Classes.
Section
6. Establishment
and Designation of Series. Without limiting the authority of the
Trustees set forth in Section 5, inter alia, to establish and designate any
further Series or Classes or to modify the rights and preferences of any Series,
each Series set forth on Schedule 3.6 hereto (as may be amended from time to
time by the Trustees) shall be, and are hereby, established and
designated. In addition, with respect to each such Series, the Class
I Shares, Class II Shares, Class III Shares, Class IV Shares, Class V Shares,
Class VI Shares, Class VII Shares, Class VIII Shares and Class M Shares which
each such Series may issue from time to time, shall be, and are hereby,
established and designated, which Classes shall have the respective rights and
preferences as are set forth in Exhibit 3.6 attached hereto as it may be amended
from time to time by the Board of Trustees.
Shares of
each Series (or Class, as the case may be) established in this Section 6 shall
have the following relative rights and preferences:
(a) Assets
belonging to Series. All consideration received by the Trust for the
issue or sale of Shares of a particular Series, together with all assets in
which such consideration is invested or reinvested, all income, earnings,
profits, and proceeds thereof from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall irrevocably belong to that Series for
all purposes, subject only to the rights of creditors, and shall be so recorded
upon the books of account of the Trust. Such consideration, assets,
income, earnings, profits and proceeds thereof, from whatever source derived,
including, without limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds, in whatever form the same may be, are herein
referred to as “assets belonging to” that Series. In the event that
there are any assets, income, earnings, profits and proceeds thereof, funds or
payments which are not readily identifiable as belonging to any particular
Series (collectively “General Assets”), the Trustees shall allocate such General
Assets to, between or among any one or more of the Series established and
designated from time to time in such manner and on such basis as they, in their
sole discretion, deem fair and equitable, and any General Asset so allocated to
a particular Series shall belong to that Series. Each such allocation
by the Trustees shall be conclusive and binding upon the Shareholders of all
Series for all purposes.
(b) Liabilities
Belonging to Series. The assets belonging to each particular Series
shall be charged solely with the liabilities of the Trust in respect to that
Series, expenses, costs, charges and reserves attributable to that Series, and
any general liabilities of the Trust which are not readily identifiable as
belonging to any particular Series but which are allocated and charged by the
Trustees to and among any one or more of the Series established and designated
from time to time in a manner and on such basis as the Trustees in their sole
discretion deem fair and equitable. The liabilities, expenses, costs,
charges, and reserves so charged to a Series are herein referred to as
“liabilities belonging to” that Series. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the holders of all Series for all
purposes.
(c) Dividends,
Distributions, Redemptions, and Repurchases. Notwithstanding any
other provisions of this Declaration, including, without limitation, Article VI,
no dividend or distribution (including, without limitation, any distribution
paid upon termination of the Trust or of any Series or Class) with respect to,
nor any redemption or repurchase of, the Shares of any Series shall be effected
by the Trust other than from the assets belonging to such Series, nor shall any
Shareholder of any particular Series otherwise have any right or claim against
the assets belonging to any other Series except to the extent that such
Shareholder has such a right or claim hereunder as a Shareholder of such other
Series.
(d) Voting. Notwithstanding
any of the other provisions of this Declaration, including, without limitation,
Section 1 of Article V, the Shareholders of any particular Series or Class shall
not be entitled to vote on any matters as to which such Series or Class is not
affected except as otherwise required by the 1940 Act or other applicable
law. On any matter submitted to a vote of Shareholders, all Shares of
the Trust then entitled to vote shall be voted by individual Series, unless
otherwise required by the 1940 Act or other applicable law.
(e) Equality. All
the Shares of each particular Class of a Series shall represent an equal
proportionate interest in the assets allocable to that Class, and each Share of
any particular Series shall be equal to each other Share of that Series (subject
to the liabilities allocated to each Class of that Series).
(f) Fractions. Any
fractional Share of a Series or Class shall carry proportionately all the rights
and obligations of a whole share of that Series or Class, including rights with
respect to voting, receipt of dividends and distributions, redemption of Shares
and termination of the Trust.
(g) Exchange
Privilege. The Trustees shall have the authority to provide that the
holders of Shares of any Series or Class shall have the right to exchange said
Shares for Shares of one or more other Series or Class of Shares in accordance
with such requirements and procedures as may be established by the
Trustees.
(h) Combination
of Series or Classes. The Trustees shall have the authority, without
the approval of the Shareholders of any Series or Class unless otherwise
required by applicable law, to combine the assets and liabilities belonging to
any two or more Series (or the assets allocable to any two or more Classes) into
assets and liabilities belonging (or allocable) to a single Series (or
Class).
(i) Elimination
of Series or Classes. At any time that there are no Shares
outstanding of any particular Series or Class previously established and
designated, the Trustees may amend this Declaration of Trust to abolish that
Series or Class and to rescind the establishment and designation thereof, such
amendment to be effected in the manner provided in Section 5 of this Article
III.
(j) Assets
and Liabilities Allocable to a Class. The assets and liabilities
belonging to a Series shall be proportionately allocated among all the Classes
of that Series according to the percentage of net assets allocated to each
particular Class. For purposes of determining the assets and
liabilities belonging to a Series that are allocable to a Class of that Series,
subject to the provisions of paragraph (g) of Section 5 of this Article III,
expenses shall be accrued as set forth in Exhibit 3.6 attached
hereto.
Section
7. Indemnification
of Shareholders. In case any Shareholder or former Shareholder shall
be held to be personally liable solely by reason of his or her being or having
been a Shareholder of the Trust or of a particular Series and not because of his
or her acts or omissions or for some other reason, the Shareholder or former
Shareholder (or his or her heirs, executors, administrators or other legal
representatives or in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled out of the assets of the Series of
which he is a Shareholder or former Shareholder to be held harmless from and
indemnified against all loss and expense arising from such
liability.
Section
8. No
Preemptive Rights. Shareholders shall have no preemptive or other
right to subscribe to any additional Shares or other securities issued by the
Trust.
ARTICLE
IV.
The
Trustees
Section
1. Election
and Tenure. The Trustees may fix the number of vacancies arising from
an increase in the number of Trustees, or remove Trustees with or without
cause. Each Trustee shall serve during the continued lifetime of the
Trust until he dies, resigns or is removed, or if sooner, until the next meeting
of Shareholders called for the purpose of electing Trustees and until the
election and qualification of his successor. Any Trustee may resign
at any time by written instrument signed by him and delivered to any officer of
the Trust or to a meeting of the Trustees. Such resignation shall be
effective upon receipt unless specified to be effective at some other
time. Except to the extent expressly provided in a written agreement
with the Trust, no Trustee resigning and no Trustee removed shall have any right
to any compensation for any period following his resignation or removal, or any
right to damages on account of such removal. The Shareholders may fix
the number of Trustees and elect Trustees at any meeting of Shareholders called
by the Trustees for that purpose.
Section
2. Effect
of Death, Resignation, etc. of a Trustee. The death, declination,
resignation, retirement, removal, or incapacity of the Trustees, or any of them,
shall not operate to annul the Trust or to revoke any existing agency created
pursuant to the terms of this Declaration of Trust.
Section
3. Powers. Subject
to the provisions of this Declaration of Trust, the business of the Trust shall
be managed by the Trustees, and they shall have all powers necessary or
convenient to carry out that responsibility including the power to engage in
securities transactions of all kinds on behalf of the Trust. Without
limiting the foregoing, the Trustees may adopt By-Laws not inconsistent with
this Declaration of Trust providing for the regulation and management of the
affairs of the Trust and may amend and repeal them to the extent that such
By-Laws do not reserve that right to the Shareholders; they may fill vacancies
in or remove from their number (including any vacancies created by an increase
in the number of Trustees); they may remove from their number with or without
cause; they may elect and remove such officers and appoint and terminate such
agents as they consider appropriate; they may appoint from their own number and
terminate one or more committees consisting of two or more Trustees which may
exercise the powers and authority of the Trustees to the extent that the
Trustees determine; they may employ one or more custodians of the assets of the
Trust and may authorize such custodians to employ subcustodians and to deposit
all or any part of such assets in a system or systems for the central handling
of securities or with a Federal Reserve Bank, retain a transfer agent or a
shareholder servicing agent, or both, provide for the distribution of Shares by
the Trust, through one or more principal underwriters or otherwise, set record
dates for the determination of Shareholders with respect to various matters, and
in general delegate such authority as they consider desirable to any officer of
the Trust, to any committee of the Trustees and to any agent or employee of the
Trust or to any such custodian or underwriter.
Without
limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest
and reinvest cash, and to hold cash uninvested;
(b) To sell,
exchange, lend, pledge, mortgage, hypothecate, lease, or write options with
respect to or otherwise deal in any property rights relating to any or all of
the assets of the Trust;
(c) To vote
or give assent, or exercise any rights of ownership, with respect to stock or
other securities or property; and to execute and deliver proxies or powers of
attorney to such person or persons as the Trustees shall deem proper, granting
to such person or persons such power and discretion with relation to securities
or property as the Trustees shall deem proper;
(d) To
exercise power and rights of subscription or otherwise which in any manner arise
out of ownership of securities;
(e) To hold
any security or property in a form not indicating any trust, whether in bearer,
unregistered or other negotiable form, or in its own name or in the name of a
custodian or subcustodian or a nominee or nominees or otherwise;
(f) To
consent to or participate in any plan for the reorganization, consolidation or
merger of any corporation or issuer of any security which is held in the Trust;
to consent to any contract, lease, mortgage, purchase or sale of property by
such corporation or issuer; and to pay calls or subscriptions with respect to
any security held in the Trust;
(g) To join
with other security holders in acting through a committee, depositary, voting
trustee or otherwise, and in that connection to deposit any security with, or
transfer any security to, any such committee, depositary or trustee, and to
delegate to them such power and authority with relation to any security (whether
or not so deposited or transferred) as the Trustees shall deem proper and to
agree to pay, and to pay, such portion of the expenses and compensation of such
committee, depositary or trustee as the Trustees shall deem proper;
(h) To
compromise, arbitrate or otherwise adjust claims in favor of or against the
Trust or any matter in controversy, including but not limited to claims for
taxes;
(i) To enter
into joint ventures, general or limited partnerships and any other combinations
or associations;
(j) To borrow
funds or other property;
(k) To
endorse or guarantee the payment of any notes or other obligations of any
person; to make contracts of guaranty or suretyship, or otherwise
assume liability for payment thereof;
(l) To
purchase and pay for entirely out of Trust property such insurance as they may
deem necessary or appropriate for the conduct of the business, including without
limitation, insurance policies insuring the assets of the Trust and payment of
distributions and principal on its portfolio investments, and insurance policies
insuring the Shareholders, Trustees, officers, employees, agents, investment
advisers, principal underwriters, or independent contractors of the Trust
individually against all claims and liabilities of every nature arising by
reason of holding being or having held any such office or position, or by reason
of any action alleged to have been taken or omitted by any such person as
Trustee, officer, employee, agent, investment adviser, principal underwriter, or
independent contractor, including any action taken or omitted that may be
determined to constitute negligence, whether or not the Trust would have the
power to indemnify such person against liability; and
(m) To pay
pensions as deemed appropriate by the Trustees and to adopt, establish and carry
out pension, profit-sharing, share bonus, share purchase, savings, thrift and
other retirement, incentive and benefit plans, trusts and provisions, including
the purchasing of life insurance and annuity contracts as a means of providing
such retirement and other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust.
The
Trustees shall not in any way be bound or limited by any present or future law
or custom in regard to investments by Trustees. The Trustees shall
not be required to obtain any court order to deal with any assets of the Trust
or take any other action hereunder.
Section
4. Payment
of Expenses by the Trust. The Trustees are authorized to pay or cause
to be paid out of the principal or income of the Trust, or partly out of
principal and partly out of income, as they deem fair, all expenses, fees,
charges, taxes and liabilities incurred or arising in connection with the Trust,
or in connection with the management thereof, including but not limited to, the
Trustees’ compensation and such expenses and charges for the services of the
Trust’s officers, employees, investment adviser or manager, principal
underwriter, auditor, counsel, custodian, transfer agent, shareholder servicing
agent, and such other agents or independent contractors and such other expenses
and charges as the Trustees may deem necessary or proper to incur.
Section
5. Payment
of Expenses by Shareholders. The Trustees shall have the power, as
frequently as they may determine, to cause each Shareholder, or each Shareholder
of any particular Series or Class, to pay directly, in advance or arrears, for
charges of the Trust’s custodian or transfer, shareholder servicing or similar
agent, an amount fixed from time to time by the Trustees, by setting off such
charges due from such Shareholder from declared but unpaid dividends owed such
Shareholder and/or by reducing the number of Shares in the account of such
Shareholder by that number of full and/or fractional Shares which represents the
outstanding amount of such charges due from such Shareholder.
Section
6. Ownership
of Assets of the Trust. Title to all of the assets of the Trust shall
at all times be considered as vested in the Trustees.
Section
7. Advisory,
Management and Distribution Contracts. Subject to such requirements
and restrictions as may be set forth in the By-Laws, the Trustees may, at any
time and from time to time, contract for exclusive or nonexclusive advisory
and/or management services for the Trust or for any Series with Grantham, Mayo,
Van Otterloo & Co. LLC (including any limited liability company, provided
that a majority of the beneficial owners of Grantham, Mayo, Van Otterloo &
Co. LLC hold a majority of the equity interest in such entity and substantially
all business of Grantham, Mayo, Van Otterloo & Co. LLC is assigned thereto)
or any other partnership, corporation, trust, association or other organization
(the “Manager”); and any such contract may contain such other terms as the
Trustees may determine, including, without limitation, authority for a Manager
to determine from time to time without prior consultation with the Trustees what
investments shall be purchased, held, sold or exchanged and what portion, if
any, of the assets of the Trust shall be held uninvested and to make changes in
the Trust’s investments. The Trustees may also, at any time and from
time to time, contract with the Manager or any other partnership, corporation,
trust, association or other organization, appointing it exclusive or
nonexclusive distributor or principal underwriter for the Shares, every such
contract to comply with such requirements and restrictions as may be set forth
in the By-Laws; and any such contract may contain such other terms as the
Trustees may determine.
The fact
that:
(i) any of
the Shareholders, Trustees or officers of the Trust is a shareholder, director,
officer, partner, trustee, employee, manager, adviser, principal underwriter,
distributor or affiliate or agent of or for any partnership, corporation, trust,
association, or other organization, or of or for any parent or affiliate of any
organization, with which an advisory or management contract, or principal
underwriter’s or distributor’s contract, or transfer, shareholder servicing or
other agency contract may have been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a Shareholder or has an
interest in the Trust, or that
(ii) any
corporation, trust, association or other organization with which an advisory or
management contract or principal underwriter’s or distributor’s contract, or
transfer, shareholder servicing or other agency contract may have been or may
hereafter be made also has an advisory or management contract, or principal
underwriter’s or distributor’s contract, or transfer, shareholder servicing or
other agency contract with one or more other corporations, trusts, associations,
or other organizations, or has other business or interests,
shall not
affect the validity of any such contract or disqualify any Shareholder, Trustee
or officer of the Trust from voting upon or executing the same or create any
liability or accountability to the Trust or its Shareholders.
ARTICLE
V.
Shareholders’
Voting Powers and Meetings
Section
1. Voting
Powers. The Shareholders shall have power to vote only (i) for
the election of Trustees as provided in Article IV, Section 1, (ii) with
respect to any amendment of this Declaration of Trust to the extent and as
provided in Article VIII, Section 8, (iii) to the same extent as the
stockholders of a Massachusetts business corporation as to whether or not a
court action, proceeding or claim should or should not be brought or maintained
derivatively or as a class action on behalf of the Trust or the Shareholders,
(iv) with respect to the termination of the Trust or any Series or Class to
the extent and as provided in Article VIII, Section 4, and (v) with respect
to such additional matters relating to the Trust as may be required by this
Declaration of Trust, the By-Laws or any registration of the Trust with the
Commission (or any successor agency) or any state, or as the Trustees may
consider necessary or desirable. Each whole Share shall be entitled
to one vote as to any matter on which it is entitled to vote and each fractional
Share shall be entitled to a proportionate fractional vote. There
shall be no cumulative voting in the election of Trustees. Shares may
be voted in person or by proxy. A proxy with respect to Shares held
in the name of two or more persons shall be valid if executed by any one of them
unless at or prior to exercise of the proxy the Trust receives a specific
written notice to the contrary from any one of them. A proxy
purporting to be executed by or on behalf of a Shareholder shall be deemed valid
unless challenged at or prior to its exercise and the burden of proving
invalidity shall rest on the challenger. At any time when no Shares
of a Series or Class are outstanding the Trustees may exercise all rights of
Shareholders of that Series or Class with respect to matters affecting that
Series or Class and may with respect to that Series or Class take any action
required by law, this Declaration of Trust or the By-Laws to be taken by the
Shareholders.
Section
2. Voting
Power and Meetings. Meetings of the Shareholders may be called by the
Trustees for the purpose of electing Trustees as provided in Article IV, Section
1 and for such other purposes as may be prescribed by law, by this Declaration
of Trust or by the By-Laws. Meetings of the Shareholders may also be
called by the Trustees from time to time for the purpose of taking action upon
any other matter deemed by the Trustees to be necessary or
desirable. A meeting of Shareholders may be held at any place
designated by the Trustees. Written notice of any meeting of
Shareholders shall be given or caused to be given by the Trustees by mailing
such notice at least seven days before such meeting, postage prepaid, stating
the time and place of the meeting, to each Shareholder at the Shareholder’s
address as it appears on the records of the Trust. Whenever notice of
a meeting is required to be given to a Shareholder under this Declaration of
Trust or the By-Laws, a written waiver thereof, executed before or after the
meeting by such Shareholder or his attorney thereunto authorized and filed with
the records of the meeting, shall be deemed equivalent to such
notice.
Section
3. Quorum
and Required Vote. Except when a larger quorum is required by law, by
the By-Laws or by this Declaration of Trust, 40% of the Shares entitled to vote
shall constitute a quorum at a Shareholders’ meeting. When any one
Series or Class is to vote separately from any other Shares which are to vote on
the same matters as a separate Series or Class, 40% of the Shares of each such
Series or Class entitled to vote shall constitute a quorum at a Shareholder’s
meeting of that Series or Class. Any meeting of Shareholders may be
adjourned from time to time by a majority of the votes property cast upon the
question, whether or not a quorum is present, and the meeting may be held as
adjourned within a reasonable time after the date set for the original meeting
without further notice. When a quorum is present at any meeting, a
majority of the Shares voted shall decide any questions and a plurality shall
elect a Trustee, except when a larger vote is required by any provision of this
Declaration of Trust or the By-Laws or by law. If any question on
which the Shareholders are entitled to vote would adversely affect the rights of
any Series or Class of Shares, the vote of a majority (or such larger vote as is
required as aforesaid) of the Shares of such Series or Class which are entitled
to vote, voting separately, shall also be required to decide such
question.
Section
4. Action
by Written Consent. Any action taken by Shareholders may be taken
without a meeting if Shareholders holding a majority of the Shares entitled to
vote on the matter (or such larger proportion thereof as shall be required by
any express provision of this Declaration of Trust or by the By-Laws) and
holding a majority (or such larger proportion as aforesaid) of the Shares of any
Series or Class entitled to vote separately on the matter consent to the action
in writing and such written consents are filed with the records of the meetings
of Shareholders. Such consent shall be treated for all purposes as a
vote taken at a meeting of Shareholders.
Section
5. Record
Dates. For the purpose of determining the Shareholders of any Series
or Class who are entitled to vote or act at any meeting or any adjournment
thereof, the Trustees may from time to time fix a time, which shall be not more
than 60 days before the date of any meeting of Shareholders, as the record date
for determining the Shareholders of such Series or Class having the right to
notice of and to vote at such meeting and any adjournment thereof, and in such
case only Shareholders of record on such record date shall have such right,
notwithstanding any transfer of shares on the books of the Trust after the
record date. For the purpose of determining the Shareholders of any
Series or Class who are entitled to receive payment of any dividend or of any
other distribution, the Trustees may from time to time fix a date, which shall
be before the date for the payment of such dividend or such other payment, as
the record date for determining the Shareholders of such Series or Class having
the right to receive such dividend or distribution. Without fixing a
record date the Trustees may for voting and/or distribution purposes close the
register or transfer books for one or more Series or Class for all or any part
of the period between a record date and a meeting of shareholders or the payment
of a distribution. Nothing in this section shall be construed as
precluding the Trustees from setting different record dates for different Series
or Classes.
Section
6. Additional
Provisions. The By-Laws may include further provisions for
Shareholders’ votes and meetings and related matters.
ARTICLE
VI.
Net
Income, Distributions, Allocations, and Redemptions and Repurchases
Section
1. Distributions
of Net Income. The Trustees shall each year, or more frequently if
they so determine in their sole discretion, distribute to the Shareholders of
each Series or Class, in shares of that Series or Class, cash or otherwise, an
amount approximately equal to the net income attributable to the assets
belonging to such Series (or the assets allocable to such Class) and may from
time to time distribute to the Shareholders of each Series or Class, in shares
of that Series, cash or otherwise, such additional amounts, but only from the
assets belonging to such Series (or allocable to that Class), as they may
authorize; provided, however, that with respect to GMO World Opportunity Overlay
Fund and any other Series for which it is determined, prior to the time that any
Shares of such Series are outstanding, that the Series will elect to be treated
as a partnership for tax purposes, the Trustees shall determine in their sole
discretion the timing and amount of any distributions to Shareholders of such
Series. All dividends and distributions on Shares of a particular
Series or Class shall be distributed pro rata to the holders of that Series or
Class in proportion to the number of Shares of that Series or Class held by such
holders and recorded on the books of the Trust at the date and time of record
established for that payment or such dividend or distributions.
The
manner of determining net income, income, asset values, capital gains, expenses,
liabilities and reserves of any Series or Class may from time to time be altered
as necessary or desirable in the judgment of the Trustees to conform such manner
of determination to any other method prescribed or permitted by applicable
law. Net income shall be determined by the Trustees or by such person
as they may authorize at the times and in the manner provided in the
By-Laws. Determinations of net income of any Series or Class and
determination of income, asset value, capital gains, expenses, and liabilities
made by the Trustees, or by such person as they may authorize, in good faith,
shall be binding on all parties concerned. The foregoing sentence
shall not be construed to protect any Trustee, officer or agent of the Trust
against any liability to the Trust or its security holders to which he would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office.
If, for
any reason, the net income of any Series or Class determined at any time is a
negative amount, the pro rata share of such negative amount allocable to each
Shareholder of such Series or Class shall constitute a liability of such
Shareholder to that Series or Class which shall be paid out of such
Shareholder’s account at such times and in such manner as the Trustees may from
time to time determine (x) out of the accrued dividend account of such
Shareholder, (y) by reducing the number of Shares of that Series or Class in the
account of such Shareholder, or (z) otherwise.
Section
2. Allocations. In respect of any Series that is treated
as a partnership for federal income tax purposes, the Trustees (or such other
person designated by the Trustees as having responsibility for making tax
determinations on behalf of the Series) shall have authority to make special
allocations of income, gain, loss or deduction among Shareholders
upon withdrawals or transfers of shares as necessary to avoid
mandatory basis adjustments in the assets of the Series as required by Internal
Revenue Code of 1986, as amended (the “Code”), section 743 or 734 that would
otherwise apply as a result of amendments to such Code sections under The
American Jobs Creation Act of 2004, enacted on October 22, 2004.
For avoidance of doubt, nothing in this
Section 2 shall preclude the Trust from purchasing Shares of any Series or Class
offered for redemption at net asset value less any applicable redemption fee as
the Board may approve from time to time.
Section
3. Redemptions and Repurchases. The Trust shall
purchase such Shares as are offered by any Shareholder for redemption, upon the
presentation of a proper instrument of transfer together with a request directed
to the Trust or a person designated by the Trust that the Trust purchase such
Shares or in accordance with such other procedures for redemption as the
Trustees may from time to time authorize; and the Trust will pay therefor the
net asset value thereof, as determined in accordance with the By-Laws, next
determined. Payment for said Shares shall be made by the Trust to the
Shareholder within seven days after the date on which the request is
made. The obligation set forth in this Section 2 is subject to the
provision that in the event that any time the New York Stock Exchange is closed
for other than weekends or holidays, or if permitted by the rules of the
Commission during periods when trading on the Exchange is restricted or during
any emergency which makes it impracticable for the Trust to dispose of the
investments of the applicable Series or to determine fairly the value of the net
assets belonging to such Series (or net assets allocable to such Class) or
during any other period permitted by order of the Commission for the protection
of investors, such obligations may be suspended or postponed by the
Trustees. The Trust may also purchase or repurchase Shares at a price
not exceeding the net asset value of such Shares in effect when the purchase or
repurchase or any contract to purchase or repurchase is made.
The
redemption price may in any case or cases be paid wholly or partly in kind if
the Trustees determine that such payment is advisable in the interest of the
remaining Shareholders of the Series or Class the Shares of which are being
redeemed. In making any such payment wholly or partly in kind, the
Trust shall, so far as may be practicable, deliver assets which approximate the
diversification of all of the assets belonging at the time to the Series (or
allocable to the Class) the Shares of which are being
redeemed. Subject to the foregoing, the fair value, selection and
quantity of securities or other property so paid or delivered as all or part of
the redemption price may be determined by or under authority of the
Trustees. In no case shall the Trust be liable for any delay of any
corporation or other person in transferring securities selected for delivery as
all or part of any payment in kind.
Section
4. Redemptions at the Option of the Trust. The Trust shall
have the right at its option and at any time to redeem Shares of any Shareholder
at the net asset value thereof as described in Section 1 of this Article
VI: (i) if at such time such Shareholder owns Shares of any
Series or Class having an aggregate net asset value of less than an amount
determined from time to time by the Trustees; or (ii) to the extent that such
Shareholder owns Shares equal to or in excess of a percentage determined from
time to time by the Trustees of the outstanding Shares of the Trust or of any
Series or Class.
ARTICLE
VII.
Compensation and Limitation of
Liability of Trustees
Section
1. Compensation. The
Trustees as such shall be entitled to reasonable compensation from the Trust;
they may fix the amount of their compensation. Nothing herein shall
in any way prevent the employment of any Trustee for advisory, management,
legal, accounting, investment banking or other services and payment for the same
by the Trust.
Section
2. Limitation
of Liability. The Trustees shall not be responsible or liable in any
event for any neglect or wrong-doing of any officer, agent, employee, Manager or
principal underwriter of the Trust, nor shall any Trustee be responsible for the
act or omission of any other Trustee, but nothing herein contained shall protect
any Trustee against any liability to which he would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office.
Every
note, bond, contract, instrument, certificate or undertaking and every other act
or thing whatsoever issued, executed or done by or on behalf of the Trust or the
Trustees or any of them in connection with the Trust shall be conclusively
deemed to have been issued, executed or done only in or with respect to their or
his capacity as Trustees or Trustee, and such Trustees or Trustee shall not be
personally liable thereon.
ARTICLE
VIII.
Miscellaneous
Section
1. Trustees,
Shareholders, etc. Not Personally Liable; Notice. All persons
extending credit to, contracting with or having any claim against the Trust or
any Series or Class shall look only to the assets of the Trust, or, to the
extent that the liability of the Trust may have been expressly limited by
contract to the assets of a particular Series (or the assets allocable to a
particular Class), only to the assets belonging to the relevant Series (or
allocable to the relevant Class), for payment under such credit, contract or
claim; and neither the Shareholders nor the Trustees, nor any of the Trust’s
officers, employees or agents, whether past, present or future, shall be
personally liable therefor. Nothing in this Declaration of Trust
shall protect any Trustee against any liability to which such Trustee would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee.
Every
note, bond, contract, instrument, certificate or undertaking made or issued on
behalf of the Trust by the Trustees, by any officers or officer or otherwise
shall give notice that this Declaration of Trust is on file with the Secretary
of The Commonwealth of Massachusetts and shall recite that the same was executed
or made by or on behalf of the Trust or by them as Trustee or Trustees or as
officers or officer or otherwise and not individually and that the obligations
of such instrument are not binding upon any of them or the shareholders
individually but are binding only upon the assets and property of the Trust or
upon the assets belonging to the Series (or allocable to the Class) for the
benefit of which the Trustees have caused the note, bond, contract, instrument,
certificate or undertaking to be made, or issued, and may contain such further
recital as he or they may deem appropriate, but the omission of any such recital
shall not operate to bind any Trustee or Trustees or officers or officer or
Shareholders or any other person individually.
Section
2. Trustee’s
Good Faith Action, Expert Advice, No Bond or Surety. The exercise by
the Trustees of their powers and discretions hereunder shall be binding upon
everyone interested. A Trustee shall be liable for his own willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee, and for nothing else, and
shall not be liable for errors of judgment or mistakes of fact or
law. The Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust, and shall be
under no liability for any act or omission in accordance with such advice or for
failing to follow such advice. The Trustees shall not be required to
give any bond as such, nor any surety if a bond is required.
Section
3. Liability
of Third Persons Dealing with Trustees. No person dealing with the
Trustees shall be bound to make any inquiry concerning the validity of any
transaction made or to be made by the Trustees or to see to the application of
any payments made or property transferred to the Trust or upon its
order.
Section
4. Termination
of Trust or Series or Class. Unless terminated as provided herein,
the Trust shall continue without limitation of time. The Trust may be
terminated at any time by vote of at least 66-2/3% of the Shares of each Series
entitled to vote and voting separately by Series or by the Trustees by written
notice to the Shareholders. Any Series may be terminated at any time
by vote of at least 66-2/3% of the Shares of that Series or by the Trustees by
written notice to the Shareholders of that Series. Any Class may be
separately terminated at any time by vote of at least a majority of the Shares
of that Class present and voting on the question (a quorum being present) or by
the Trustees by written notice to the Shareholders of that Class.
Upon
termination of the Trust (or any Series or Class, as the case may be), after
paying or otherwise providing for all charges, taxes, expenses and liabilities
belonging, severally, to each Series or allocable to each Class (or the
applicable Series or Classes, as the case may be), whether due or accrued or
anticipated as may be determined by the Trustees, the Trust shall in accordance
with such procedures as the Trustees consider appropriate reduce the remaining
assets belonging, severally, to each Series or allocable to each Class (or the
applicable Series or Classes, as the case may be), to distributable form in cash
or shares or other securities, or any combination thereof, and distribute the
proceeds belonging to each Series or allocable to each Class (or the applicable
Series or Classes, as the case may be), to the Shareholders of that Series or
Class, as a Series or Class, ratably according to the number of Shares of that
Series or Class held by the several Shareholders on the date of
termination.
Section
5. Merger
and Consolidation. The Trustees may cause the Trust to be merged into
or consolidated with another trust or company or its shares exchanged under or
pursuant to any state or federal statute, if any, or otherwise to the extent
permitted by law, if such merger or consolidation or share exchange has been
authorized by vote of a majority of the outstanding Shares; provided that in all
respects not governed by statute or applicable law, the Trustees shall have
power to prescribe the procedure necessary or appropriate to accomplish a sale
of assets, merger or consolidation.
Section
6. Filing
of Copies, References, Headings. The original or a copy of this
instrument and of each amendment hereto shall be kept at the office of the Trust
where it may be inspected by any Shareholder. A copy of this
instrument and of each amendment hereto shall be filed by the Trust with the
Secretary of The Commonwealth of Massachusetts and with any other governmental
office where such filing may from time to time be required. Anyone
dealing with the Trust may rely on a certificate by an officer of the Trust as
to whether or not any such amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it were the
original, may rely on a copy certified by an officer of the Trust to be a copy
of this instrument or of any such amendments. In this instrument and
in any such amendment, references to this instrument, and all expressions like
“herein”, “hereof” and “hereunder”, shall be deemed to refer to this instrument
as amended or affected by any such amendments. Headings are placed
herein for convenience of reference only and shall not be taken as a part hereof
or control or affect the meaning, construction or effect of this
instrument. This instrument may be executed in any number of
counterparts each of which shall be deemed an original.
Section
7. Applicable
Law. This Declaration of Trust is made in The Commonwealth of
Massachusetts, and it is created under and is to be governed by and construed
and administered according to the laws of said Commonwealth. The
Trust shall be of the type commonly called a Massachusetts business trust, and
without limiting the provisions hereof, the Trust may exercise all powers which
are ordinarily exercised by such a trust.
Section
8. Amendments. This
Declaration of Trust may be amended at any time by an instrument in writing
signed by a majority of the then Trustees when authorized so to do by vote of a
majority of the Shares entitled to vote, except that amendments described in
Article III, Section 5 hereof or having the purpose of changing the name of the
Trust or of supplying any omission, curing any ambiguity or curing, correcting
or supplementing any defective or inconsistent provision contained herein shall
not require authorization by Shareholder vote.
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11823131_5.DOC
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IN
WITNESS WHEREOF, the Trustees as aforesaid do hereto set their hands this 10th
day of September 2009.
/s/
XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx
Trustee
/s/ W.
XXXXXXXX XXXXXXXXX
W.
Xxxxxxxx Xxxxxxxxx
Trustee
/s/ XXXXX
XXXXXX
Xxxxx
Xxxxxx
Trustee
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11823131_5.DOC
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Exhibit 3.6 to Declaration of
Trust
Plan
pursuant to Rule 18f-3 under the
Investment
Company Act of 1940
Effective
June 1, 1996
As
Amended and Restated June 15, 2009
This Plan
(the “Plan”) is adopted by GMO Trust (the “Trust”) pursuant to Rule 18f-3 under
the Investment Company Act of 1940 (the “Act”) and sets forth the general
characteristics of, and the general conditions under which the Trust may offer,
multiple classes of shares of its now existing and hereafter created portfolios
(“Funds”). This Plan may be revised or amended from time to time as
provided below.
Class
Designations
Each Fund
of the Trust may from time to time issue one or more of the following classes of
shares: Class I Shares, Class II Shares, Class III Shares, Class IV
Shares, Class V Shares, Class VI Shares, Class VII Shares, Class VIII Shares and
Class M Shares. Each of the classes of shares of any Fund will
represent interests in the same portfolio of investments and, except as
described herein, shall have the same rights and obligations as each other
class. Each class shall be subject to such investment minimums and
other conditions of eligibility as are set forth in the Trust’s prospectus or
statement of additional information as from time to time in effect (the
“Prospectus”). The Trust may determine to modify such investment minimums from
time to time as set forth in the Prospectus from time to time.
Class
Eligibility
Eligibility
Information for Class I, Class II, Class III, Class IV, Class V, Class VI, Class
VII and Class VIII Shares:
With
certain exceptions described below, eligibility for Class I, Class II, Class
III, Class IV, Class V, Class VI, Class VII and Class VIII Shares is dependent
upon the client meeting either (i) a minimum “Total Fund Investment”
requirement, which includes only a client’s total investment in the particular
Fund, or (ii) a minimum “Total Investment” with Grantham, Mayo, Van Otterloo
& Co. LLC (“GMO” or the “Manager”) requirement, provided that clients who
qualify for investment in Class IV, Class V, Class VI, Class VII or Class VIII
shares of a particular Fund as a result of satisfying the minimum Total
Investment requirement may also be required to make a minimum investment in such
Fund, in such amount as is set forth in the Prospectus from time to
time.
Determination
of Total Investments: A client’s Total Investment will be determined
by GMO (i) at the time of the client’s initial investment, (ii) at the close of
business on the last business day of each business quarter, or (iii) on such
other dates as may be determined by GMO (each a “Determination
Date”).
A
client’s Total Investment as of any Determination Date will be determined as of
such Determination Date by reference to the criteria set forth in the Prospectus
(as amended from time to time) and this Plan, provided that any changes to the
definition of Total Investment must be approved by the Trust’s Board of Trustees
and provided further that, in the event that the terms of this Plan and the
Prospectus conflict, the provisions of this Plan shall apply. For the
avoidance of doubt, a determination as to aggregation of client accounts does
not constitute a change in the definition of Total Investment.
Aggregation of Accounts. GMO
will make all determinations as to aggregation of client accounts for purposes
of determining eligibility. GMO may, in its sole discretion,
determine that an account is part of a larger client relationship with GMO that
includes other accounts managed by GMO and its affiliates (including accounts
managed for affiliates of the client) and, accordingly, that the account should
be aggregated with those other accounts for purposes of determining its
eligibility for a particular class of shares of a Fund. When making
decisions regarding whether an account should be aggregated with other accounts
because they are part of a larger client relationship, GMO considers several
factors, including, but not limited to, whether: the multiple
accounts are for one or more subsidiaries of the same parent company; the
multiple accounts have the same beneficial owner regardless of the legal form of
ownership; the investment mandate is the same or substantially similar across
the relationship; the asset allocation strategies are substantially similar
across the relationship; GMO reports to the same investment board; the
consultant is the same for the entire relationship; GMO services the
relationship through a single GMO relationship manager; the relationships have
substantially similar reporting requirements; and/or the relationship can be
serviced from a single geographic location.
Commitments
to Invest. For purposes of calculating a client’s Total Fund
Investment or Total Investment on a Determination Date, GMO may determine to
include assets which the client has committed to deliver to GMO or its
affiliates for management over an agreed upon period of time, but which have not
been delivered as of the Determination Date.
Waiver of
Eligibility Requirements. The Trust may waive eligibility
requirements for certain types of accounts (e.g., other Funds of the Trust and
other registered investment companies advised or subadvised by GMO that invest
in the Funds).
Eligibility
Information for Class M Shares:
Investors
purchasing through third party intermediaries will be eligible to purchase Class
M Shares.
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11823131_5.DOC
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Class
Characteristics
Class I,
Class II, Class III, Class IV, Class V, Class VI, Class VII and Class VIII
Shares:
Shareholder
Service Fees. The sole difference among the various classes of shares
is the level of shareholder service fee (“Shareholder Service Fee”) borne by the
class for client and shareholder service, reporting and other support provided
to such class by GMO. The multiple class structure reflects the fact
that, as the size of the client relationship increases, the cost to service that
relationship is expected to decrease as a percentage of the
account. Thus, the Shareholder Service Fee is lower for classes for
which eligibility criteria generally require greater assets under GMO’s
management.
Conversion Features. For
Class I, Class II, Class III, Class IV, Class V, Class VI, Class VII and Class
VIII Shares, the value of each client’s Total Investment and Total Fund
Investment with GMO will be determined on each Determination
Date. Based on that determination, and subject to the following, each
client’s shares of each Fund will be converted to the class of shares of that
Fund which is then being offered bearing the lowest Shareholder Service Fee for
which the client satisfies all minimum investment requirements (or, to the
extent the client already holds shares of that class, the client will remain in
that class). With respect to any Fund:
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(i)
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To
the extent a client satisfies all minimum investment requirements for a
class of shares then being offered that bears a lower Shareholder Service
Fee than the class held by the client on the Determination Date, the
client’s shares will be automatically converted to that class within the
period of time following the Determination Date specified in the
Prospectus in effect from time to
time.
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(ii)
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If
a client no longer satisfies all minimum investment requirements for the
class of shares held by the client as of the last Determination Date of a
calendar year, the Trust will convert the client’s shares to the class
which is then being offered bearing the lowest Shareholder Service Fee for
which the client satisfies all minimum investment requirements (and which
class will typically bear a higher Shareholder Service Fee than the class
held by the client as of the last Determination Date of that calendar
year). To the extent the client no longer satisfies all minimum
investment requirements for any class as of the last Determination Date of
a calendar year, the Trust will convert the client’s shares to the class
of that Fund which is then being offered bearing the highest Shareholder
Service Fee. Notwithstanding the foregoing, a client’s shares
will not be converted to a class of shares bearing a higher Shareholder
Service Fee without prior notification by the Trust. In
addition, as described in the Prospectus in effect from time to time, to
the extent the client makes an additional investment and/or the value of
the client’s shares otherwise increases prior to the expiration of the
notice period so as to satisfy all minimum investment requirements for the
client’s current class of shares, the client will remain in the class of
shares then held by the client. Solely for the purpose of
determining whether a client has satisfied the additional investment
requirement referenced in the preceding sentence, the value of the
client’s shares shall be the greater of (A) the value of the client’s
shares on the relevant Determination Date or (B) the value of the client’s
shares on the date that GMO reassesses the value of the client’s account
for the purpose of sending the above referenced notice. In
addition, if the client is not able to make an additional investment in a
Fund solely because the Fund is closed to new investment or is capacity
constrained, the client will remain in the class of shares then held by
the client unless the Manager approves reopening the Fund to facilitate an
additional investment. Any conversion of a client’s shares to a
class of shares bearing a higher Shareholder Service Fee would occur
within the period of time following the last Determination Date of a
calendar year specified in the Prospectus in effect from time to
time.
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Notwithstanding
anything to the contrary in clause (ii) above, if a client no longer satisfies
all minimum investment requirements for the class of shares held by the client
as of any date, the Trust may convert the client's shares to the class which is
then offered bearing the lowest Shareholder Service Fee for which the client
satisfies all minimum investment requirements (or, if there is no such class,
the class of that Fund which is then being offered bearing the highest
Shareholder Service Fee) without notice if either:
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●
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The
Manager believes client has engaged in an abusive pattern of investments
and/or redemptions (e.g., a large investment just before a Determination
Date and a redemption right after the Determination
Date); or
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●
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The
total expense ratio borne by client immediately following such conversion
is equal to or less than the total expense ratio borne by client
immediately prior to such conversion (after giving effect to any
applicable fee and expense waivers or
reimbursements).
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Shares of
one class will always convert into shares of another class on the basis of the
relative net asset value of the two classes, without the imposition of any sales
load, fee or other charge. The conversion of a client’s investment
from one class of shares to another is not a taxable event, and will not result
in the realization of gain or loss that may exist in Fund shares held by the
client. The client’s tax basis in the new class of shares will equal
its basis in the old class before conversion. The conversion of
shares from one class to another class of shares may be suspended if the opinion
of counsel obtained by the Trust that the conversion does not constitute a
taxable event under current federal income tax law is no longer
available.
Special Rules for Clients with Accounts
as of May 31, 1996. Certain special rules will be applied by the
Manager with respect to clients for whom GMO managed assets prior to the
creation of multiple classes on May 31, 1996. Any client that has
been a continuous shareholder of GMO Foreign Fund or GMO International Intrinsic
Value Fund since May 31, 1996 (prior to the issuance of multiple classes of
shares) will be eligible indefinitely to remain invested in Class III shares of
such Funds.
Notwithstanding the foregoing special
rules applicable to clients owning shares of the Funds on May 31, 1996, such
clients shall always be eligible to remain in and/or be converted to any class
of shares of the relevant Fund with a lower Shareholder Service Fee which the
client would be eligible to purchase pursuant to the eligibility requirements
set forth elsewhere in this Plan or in the Prospectus.
Class
M:
Rule
12b-1 and Administration Fees. Class M Shares are subject to a Rule
12b-1 fee not to exceed 1.00%, and an administration fee. Up to 0.25%
of the Rule 12b-1 fee may be paid by the Fund’s distributor to third parties in
connection with services primarily intended to result in the sale of Class M
Shares and/or certain other services to Class M Shares. A portion of
the administration fee may be paid by GMO to third parties for providing record
keeping and other services to the Class M Shares.
Conversion
Features. Clients holding Class M Shares are not currently eligible
to convert their Class M Shares to any other class of shares offered by the
Trust.
Allocations
to Each Class
Expense
Allocations:
Shareholder
Service Fees payable by the Trust to the shareholder servicer of the Trust’s
shares (the “Shareholder Servicer”) shall be allocated, to the extent
practicable, on a class-by-class basis, excluding Class M Shares, which pay no
Shareholder Service Fees. In addition, all Rule 12b-1 fees and
administration fees payable by the Trust in respect of its Class M Shares shall
be allocated exclusively to Class M Shares. Subject to the approval
of the Trust’s Board of Trustees, including a majority of the independent
Trustees, the following “Class Expenses” may (if such expense is properly
assessable at the class level) in the future be allocated on a class-by-class
basis: (a) transfer agency costs attributable to each class, (b)
printing and postage expenses related to preparing and distributing materials
such as shareholder reports, prospectuses and proxy statements to current
shareholders of a specific Class, (c) SEC registration fees incurred with
respect to a specific class, (d) blue sky and foreign registration fees and
expenses incurred with respect to a specific class, (e) the expenses of
personnel and services required to support shareholders of a specific class
(including, but not limited to, maintaining telephone lines and personnel to
answer shareholder inquiries about their accounts or about the Trust), (f)
litigation and other legal expenses relating to a specific class of shares, (g)
Trustees’ fees or expenses incurred as a result of issues relating to a specific
class of shares, (h) accounting and consulting expenses relating to a specific
class of shares, (i) any fees imposed pursuant to a non-Rule 12b-1 shareholder
service plan that relate to a specific class of shares, and (j) any additional
expenses, not including advisory or custodial fees or other expenses related to
the management of the Trust’s assets, if these expenses are actually incurred in
a different amount with respect to a class, or if services are provided with
respect to a class, or if services are provided with respect to a class that are
of a different kind or to a different degree than with respect to one or more
other classes.
All
expenses not now or hereafter designated as Class Expenses (“Fund Expenses”)
will be allocated to each class on the basis of the net asset value of that
class in relation to the net asset value of the relevant Fund.
However,
notwithstanding the above, a Fund may allocate all expenses other than Class
Expenses on the basis of any methodology permitted by Rule
18f-3(c) under the Act, provided, however, that until such time as this Plan is
amended with respect to the Fund’s allocation methodology, the Fund will
allocate all expenses other than Class Expenses on the basis of relative net
assets.
Waivers
and Reimbursements:
The
Manager, the Shareholder Servicer, the Funds’ distributor and the Funds’
administrator may choose to waive or reimburse Shareholder Service Fees, Rule
12b-1 Fees, administration fees, or any other Class Expenses on a voluntary or
temporary basis.
Income,
Gain and Loss Allocations:
Income
and realized and unrealized capital gains and losses shall be allocated to each
class on the basis of the net asset value of that class in relation to the net
asset value of the relevant Fund.
Each Fund
may allocate income and realized and unrealized capital gains and losses to each
share based on any methodology permitted by Rule 18f-3(c)(2) under the Act,
consistent with the provisions set forth in “Expense Allocations”
above.
Redemptions
at the Option of the Trust
Notwithstanding
anything to the contrary in this Plan, pursuant to Article VI, Section 3 of the
Trust’s Amended and Restated Agreement and Declaration of Trust, the Trust has
the right to redeem unilaterally any shareholder of the Trust (i) if at such
time such shareholder owns shares of any Fund or class thereof having an
aggregate net asset value of less than an amount determined from time to time by
the Trustees or (ii) to the extent that such shareholder owns shares equal to or
in excess of a percentage, determined from time to time by the Trustees, of the
outstanding shares of the Trust or of any Fund or class thereof.
Dividends
Dividends
paid by the Trust with respect to any class of shares, to the extent any
dividends are paid, will be calculated in the same manner, at the same time and
will be in the same amount, except that any Shareholder Service Fee, Rule 12b-1
Fee or administration fee payments relating to a class of shares will be borne
exclusively by that class and, if applicable, Class Expenses relating to a class
shall be borne exclusively by that class.
Voting
Rights
Each
share of the Trust entitles the shareholder of record to one
vote. Each class of shares of the Trust will vote separately as a
class on matters for which class voting is required under applicable
law.
Amendments
The Plan
may be amended from time to time in accordance with the provisions and
requirements of Rule 18f-3 under the Act.
Adopted
this 15th day of June, 2009
By:__/s/
Xxxxx Xxxxxxxx __
Name: Xxxxx
Xxxxxxxx
Title: Clerk
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Schedule
3.6 to Declaration of Trust
Series
GMO U.S.
Core Equity Fund
GMO
Tobacco-Free Core Fund
GMO
Quality Fund
GMO U.S.
Intrinsic Value Fund
GMO U.S.
Growth Fund
GMO U.S.
Small/Mid Cap Value Fund
GMO U.S.
Small/Mid Cap Growth Fund
GMO Real
Estate Fund
GMO
Tax-Managed U.S. Equities Fund
GMO
International Core Equity Fund
GMO
International Intrinsic Value Fund
GMO
International Growth Equity Fund
GMO
Developed World Stock Fund
GMO
Currency Hedged International Equity Fund
GMO
Foreign Fund
GMO
Foreign Small Companies Fund
GMO
International Small Companies Fund
GMO
Emerging Markets Fund
GMO
Emerging Countries Fund
GMO
Tax-Managed International Equities Fund
GMO
Domestic Bond Fund
GMO Core
Plus Bond Fund
GMO
International Bond Fund
GMO
Strategic Fixed Income Fund
GMO
Currency Hedged International Bond Fund
GMO
Global Bond Fund
GMO
Emerging Country Debt Fund
GMO
Short-Duration Investment Fund
GMO
Short-Duration Collateral Share Fund
GMO
Inflation Indexed Plus Bond Fund
GMO U.S.
Equity Allocation Fund
GMO
International Equity Allocation Fund
GMO
International Opportunities Equity Allocation Fund
GMO
Global Equity Allocation Fund
GMO World
Opportunities Equity Allocation Fund
GMO
Global Balanced Asset Allocation Fund
GMO
Strategic Opportunities Allocation Fund
GMO
Benchmark-Free Allocation Fund
GMO Alpha
Only Fund
GMO
Alternative Asset Opportunity Fund
GMO
Short-Duration Collateral Fund
GMO
Special Purpose Holding Fund
GMO
Special Situations Fund
GMO
Taiwan Fund
GMO World
Opportunity Overlay Fund
GMO
Flexible Equities Fund
GMO
Arlington Fund
GMO
Berkeley Fund
GMO
Clarendon Fund
GMO
Dartmouth Fund
GMO
Exeter Fund
GMO
Fairfield Fund
GMO
Gloucester Fund
GMO
Hereford Fund
GMO
Ipswich Fund
GMO St.
Xxxxx Fund
GMO U.S.
Treasury Fund
GMO Asset
Allocation Bond Fund
GMO Asset
Allocation International Bond Fund
GMO World
Opportunity Overlay Share Fund
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11823131_5.DOC
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