EXHIBIT (A)(10)
GMO TRUST
AMENDMENT NO. 17
TO
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
The undersigned, constituting at least a majority of the trustees of the
GMO Trust, a Massachusetts business trust created and existing under an Amended
and Restated Agreement and Declaration of Trust dated June 23, 2000 (the
"Declaration of Trust"), a copy of which is on file in the Office of the
Secretary of The Commonwealth of Massachusetts, do hereby direct that this
Amendment No.17 be filed with the Secretary of The Commonwealth of Massachusetts
and do hereby amend the Declaration of Trust by amending and restating Exhibit
3.6 of the Declaration of Trust in its entirety as attached hereto.
The foregoing amendment shall become effective as of the time it is filed
with the Secretary of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, we have hereunto set our hands for ourselves and for
our successors and assigns this 8th day of November, 2004.
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------
R. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/S/ ▇▇▇ ▇. LIGHT
----------------------------------------
▇▇▇ ▇. Light
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit 3.6 to Declaration of Trust
GMO TRUST
Plan pursuant to Rule 18f-3 under the
Investment Company Act of 1940
Effective June 1, 1996
As Amended and Restated February 26, 2004
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
Class I, Class II and Class III Shares:
With certain exceptions described below, eligibility for Class I, Class II
and Class III 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.
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"). Subject to as provided below, a client's Total Investment as of any
Determination Date will equal the market
value of assets managed by GMO and its affiliates for the client (whether in a
pooled vehicle or otherwise) as of such Determination Date.
For Clients establishing a relationship with GMO on or after June 1, 1996:
A client's Total Investment will be determined by GMO at the Determination Date.
For Clients with Accounts as of May 31, 1996: Any client of GMO whose Total
Investment as of May 31, 1996 was equal to or greater than $7 million will
remain eligible for Class III Shares indefinitely, provided that such client
does not make a withdrawal or redemption that causes the client's Total
Investment to fall below $7 million. Any client whose Total Investment as of May
31, 1996 was less than $7 million, but greater than $0, will be eligible for
Class II Shares indefinitely. For clients with GMO accounts as of May 31, 1996,
their initial Total Investment will equal the market value of all of their GMO
investments as of the close of business on May 31, 1996 and will subsequently be
calculated as described in the preceding section.
Class IV, Class V, Class VI, Class VII and Class VIII Shares:
Eligibility for 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 GMO requirement
(calculated as described above for Class I, Class II and Class III shares),
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.
Additional Class Eligibility Information for Class I, Class II, Class III, Class
IV, Class V, Class VI, Class VII and Class VIII Shares:
GMO will make all determinations as to aggregation of client accounts for
purposes of determining eligibility. 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. The Trust may waive eligibility
requirements for certain types of accounts (e.g., other Funds of the Trust).
Class M Shares:
Investors purchasing through third party intermediaries will be eligible to
purchase Class M Shares.
Class Characteristics
Class I, Class II, Class III, Class IV, Class V, Class VI, Class VII and
Class VIII Shares:
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.
Class M:
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.
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-3I
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, Gains and Losses
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-3I(2) under
the Act, consistent with the provisions set forth in "Expense Allocations"
above.
Conversion and Exchange Features
For all Classes except Class M, on each Determination Date, the value of
each client's Total Investment and Total Fund Investment with GMO will be
determined. 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 to afford the client a reasonable
opportunity to make an additional investment to remain eligible for
the client's current class of shares, as set forth in the Prospectus
in effect from time to time. 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.
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.
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 their 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.
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. Clients whose Total Investment as of May 31, 1996 is equal to $7
million or more will be eligible to remain invested in Class III Shares
indefinitely (irrespective of whether the Fund has a higher investment minimum),
provided that such client does not make a withdrawal or redemption that causes
the client's Total Investment to fall below $7 million. Clients whose Total
Investment as of May 31, 1996 is less than $7 million but greater than $0 will
be eligible to invest in or convert to Class II Shares indefinitely
(irrespective of whether the Fund has a higher investment minimum).
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.
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 any
Fund 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."
Dividends
Dividends paid by the Trust with respect to its Class I, Class II, Class
III, Class IV, Class V, Class VI, Class VII, Class VIII Shares and Class M
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 26th day of February, 2004
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------