AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST GMO TRUST
Exhibit (a)1
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST
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.
-2-
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.
-3-
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;
-4-
(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:
-5-
(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.
-6-
(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.
-7-
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
-8-
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;
-9-
(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.
-10-
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:
-11-
(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
-12-
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.
-13-
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
-14-
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
-15-
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.
-16-
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.
-17-
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.
-18-
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.
-19-
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 | ||||
-20-
Exhibit 3.6 to Declaration of Trust
Plan pursuant to Rule 18f-3 under the
Investment Company Act of 1940
Investment Company Act of 1940
Effective June 1, 1996
As Amended and Restated June 15, 2009
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
-21-
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.
-22-
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:
| (i) | 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. | ||
| (ii) | 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 |
-23-
| 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. |
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:
| • | 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 | ||
| • | 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). |
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
-24-
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
-25-
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.
-26-
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 | |||||
-27-
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 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
-28-
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
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
-29-
