AMENDED AND RESTATED BY-LAWS OF THE GAMCO WESTWOOD FUNDS
Exhibit (b)(1)
ARTICLE 1
Agreement and Declaration of Trust and Principal Office
Agreement and Declaration of Trust and Principal Office
1.1 Agreement and Declaration of Trust. These By-Laws shall be subject to the
Agreement and Declaration of Trust, as from time to time in effect (the “Declaration of Trust”), of
the above-captioned Massachusetts business trust established by the Declaration of Trust (the
“Trust”).
1.2 Principal Office of the Trust. The principal office of the Trust shall be located
in New York, New York. Its resident agent in Massachusetts shall be CT Corporation System, 0 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, or such other person as the Trustees from time to time may select.
ARTICLE 2
Meetings of Trustees
Meetings of Trustees
2.1 Regular Meetings. Regular meetings of the Trustees may be held without call or
notice at such places and at such times as the Trustees from time to time may determine, provided
that notice of the first regular meeting following any such determination shall be given to absent
Trustees.
2.2 Special Meetings. Special meetings of the Trustees may be held at any time and at
any place designated in the call of the meeting when called by the President or the Treasurer or by
two or more Trustees, sufficient notice thereof being given to each Trustee by the Secretary or an
Assistant Secretary or by the officer or the Trustees calling the meeting.
2.3 Notice of Special Meetings. It shall be sufficient notice to a Trustee of a
special meeting to send notice by mail at least forty-eight hours or by telegram, electronic mail
or any other standard form of telecommunication at least twenty-four hours before the meeting
addressed to the Trustee at his or her usual or last known business or residence address or to give
notice to him or her in person or by telephone at least twenty-four hours before the meeting.
Notice of a meeting need not be given to any Trustee if a written waiver of notice, executed by him
or her before or after the meeting, is filed with the records of the meeting, or to any Trustee who
attends the meeting without protesting prior thereto or at its commencement the lack of notice to
him or her. Neither notice of a meeting nor a waiver of a notice need specify the purposes of the
meeting.
2.4
Notice of Certain Actions by Consent. If in accordance with the provisions of the Declaration of Trust any action is taken by the Trustees by a written consent of less
than
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all of the Trustees, then prompt notice of any such action shall be furnished to each Trustee
who did not execute such written consent, provided that the effectiveness of such action shall not
be impaired by any delay or failure to furnish such notice.
ARTICLE 3
Officers
Officers
3.1 Enumeration; Qualification. The officers of the Trust shall be a President, a
Treasurer, a Secretary, and such other officers, if any, as the Trustees from time to time may in
their discretion elect. The Trust also may have such agents as the Trustees from time to time may
in their discretion appoint. Officers may be but need not be a Trustee or shareholder. Any two or
more offices may be held by the same person.
3.2 Election. The President, the Treasurer and the Secretary shall be elected by the
Trustees upon the occurrence of any vacancy in any such office. Other officers, if any, may be
elected or appointed by the Trustees at any time. Vacancies in any such other office may be filled
at any time.
3.3 Tenure. The President, Treasurer and Secretary shall hold office in each case
until he or she sooner dies, resigns, is removed or becomes disqualified. Each other officer shall
hold office and each agent shall retain authority at the pleasure of the Trustees.
3.4 Powers. Subject to the other provisions of these By-Laws, each officer shall have,
in addition to the duties and powers herein and in the Declaration of Trust set forth, such duties
and powers as commonly are incident to the office occupied by him or her as if the Trust were
organized as a Massachusetts business corporation or such other duties and powers as the Trustees
may from time to time designate.
3.5 President. Unless the Trustees otherwise provide, the President shall preside at
all meetings of the shareholders and of the Trustees. Unless the Trustees otherwise provide, the
President shall be the chief executive officer.
3.6 Treasurer. The Treasurer shall be the chief financial and accounting officer of
the Trust, and, subject to the provisions of the Declaration of Trust and to any arrangement made
by the Trustees with a custodian, investment adviser or manager, or transfer, shareholder servicing
or similar agent, shall be in charge of the valuable papers, books of account and accounting
records of the Trust, and shall have such other duties and powers as may be designated from time to
time by the Trustees or by the President.
3.7 Secretary. The Secretary shall record all proceedings of the shareholders and the
Trustees in books to be kept therefor, which, books or a copy thereof shall be kept at the
principal office of the Trust. In the absence of the Secretary from any meeting of the shareholders
or Trustees, an Assistant Secretary, or if there be none or if he or
she is absent, a temporary Secretary chosen at such meeting shall record the proceedings thereof in the
aforesaid
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books.
3.8 Resignations and Removals. Any Trustee or officer may resign at any time by
written instrument signed by him or her and delivered to the President or Secretary or to a meeting
of the Trustees. Such resignation shall be effective upon receipt unless specified to be effective
at some other time. The Trustees may remove any officer elected by them with or without cause.
Except to the extent expressly provided in a written agreement with the Trust, no Trustee or
officer resigning and no officer removed shall have any right to any compensation for any period
following his or her resignation or removal, or any right to damages on account of such removal.
ARTICLE 4
Committees
Committees
4.1 Appointment. The Trustees may appoint from their number an executive committee and
other committees. Except as the Trustees otherwise may determine, any such committee may make rules
for conduct of its business.
4.2 Quorum; Voting. A majority of the members of any Committee of the Trustees shall
constitute a quorum for the transaction of business, and any action of such a Committee may be
taken at a meeting by a vote of a majority of the members present(a quorum being present).
ARTICLE 5
Reports
Reports
The Trustees and officers shall render reports at the time and in the manner required by the
Declaration of Trust or any applicable law. Officers and Committees shall render such additional
reports as they may deem desirable or as may from time to time be required by the Trustees.
ARTICLE 6
Fiscal Year
Fiscal Year
Except as from time to time otherwise provided by the Trustees, the fiscal year of the Trust
shall end on November 30th in each year.
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ARTICLE 7
Seal
Seal
The seal of the Trust shall consist of a flat-faced die with the word “Massachusetts,”
together with the name of the Trust and the year of its organization cut or-engraved thereon but,
unless otherwise required by the Trustees, the seal shall not be necessary to be placed on, and in
its absence shall not impair the validity of, any document, instrument or other paper executed and
delivered by or on behalf of the Trust.
ARTICLE 8
Execution of Papers
Execution of Papers
Except as the Trustees generally or in particular cases may authorize the execution thereof in
some other manner, all deeds, leases, contracts, notes and other obligations made by the Trustees
shall be signed by the President, any Vice President, or by the Treasurer and need not bear the
seal of the Trust.
ARTICLE 9
Issuance of Share Certificates
Issuance of Share Certificates
9.1 Sale of Shares. Except as otherwise determined by the Trustees, the Trust will
issue and sell for cash or securities from time to time, full and fractional shares of its shares
of beneficial interest, such shares to be issued and sold at a price of not less than net asset
value per share as from time to time determined in accordance with the Declaration of Trust and
these By-Laws and, in the case of fractional shares, at a proportionate reduction in such price. In
the case of shares sold for securities, such securities shall be valued in accordance with the
provisions or determining value of assets of the Trust as stated in the Declaration of Trust and
these By-Laws. The officers of the Trust are severally authorized to take all such actions as may
be necessary or desirable to carry out this Section 9.1.
9.2 Share Certificates. In lieu of issuing certificates for shares, the Trustees or
the transfer agent either may issue receipts therefor or may keep accounts upon the books of the
Trust for the record holders of such shares, who shall in either case, for all purposes hereunder,
be deemed to be the holders of certificates for such shares as if they had accepted such
certificates and shall be held to have expressly assented and agreed to the terms hereof.
The Trustees at any time may authorize the issuance of share certificates. In that event, each
shareholder shall be entitled to a certificate stating the number of shares owned by him, in such
form as shall be prescribed from time to time by the Trustees. Such certificate shall be signed by
the President or Vice President and by the Treasurer or Assistant Treasurer. Such signatures may be
facsimile if the certificate is signed by a transfer agent, or by a registrar, other
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than a Trustee, officer or employee of the Trust. In case any officer who has signed or whose
facsimile signature has been placed on such certificate shall cease to be such officer before such
certificate is issued, it may be issued by the Trust with the same effect as if he or she were such
officer at the time of its issue.
9.3 Loss of Certificates. The Trust, or if any transfer agent is appointed for the
Trust, the transfer agent with the approval of any two officers of the Trust, is authorized to
issue and countersign replacement certificates for the shares of the Trust which have been lost,
stolen or destroyed subject to the deposit of a bond or other indemnity in such form and with such
security, if any, as the Trustees may require.
9.4 Discontinuance of Issuance of Certificates. The Trustees at any time may
discontinue the issuance of share certificates and by written notice to each shareholder, may
require the surrender of share certificates to the Trust for cancellation. Such surrender and
cancellation shall not affect the ownership of shares in the Trust.
ARTICLE 10
Indemnification
Indemnification
10.1 Trustees, Officers, etc. The Trust shall indemnify each of its Trustees and
officers (including persons who serve at the Trust’s request as directors, officers or trustees of
another organization in which the Trust has any interest as a shareholder, creditor or otherwise)
(hereinafter referred to as a “Covered Person”) against all liabilities and expenses, including but
not limited to amounts paid in satisfaction of judgments, in compromise or as fines and penalties,
and counsel fees reasonably incurred by any Covered Person in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which such Covered Person may be or may have been involved
as a party or otherwise or with which such person may be or may have been threatened, while in
office or thereafter, by reason of being or having been such a Trustee or officer, except with
respect to any matter as to which such Covered Person shall have been finally adjudicated in a
decision on the merits in any such action, suit or other proceeding not to have acted in good faith
in the reasonable belief that such Covered Person’s action was in the best interests of the Trust
and except that no Covered Person shall be indemnified against any liability to the Trust or its
Shareholders to which such Covered Person would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person’s office. Expenses, including counsel fees so incurred by any such
Covered Person (but excluding amounts paid in satisfaction of judgments, in compromise or as fines
or penalties), may be paid from time to time by the Trust in advance of the final disposition or
any such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Covered
Person to repay amounts so paid to the Trust if it is ultimately determined that indemnification of
such expenses is not authorized under this Article, provided that (a) such Covered Person shall
provide security for his undertaking, (b) the Trust shall be insured against losses arising by
reason of such Covered Person’s failure to fulfill his undertaking, or (c) a majority of the
Trustees who are disinterested persons and who are not Interested Persons (as
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that term is defined in the Investment Company Act of 1940) (provided that a majority of such
Trustees then in office act on the matter), or independent legal counsel in a written opinion,
shall determine, based on a review of readily available facts (but not a full trial-type inquiry),
that there is reason to believe such Covered Person ultimately will be entitled to indemnification.
10.2 Compromise Payment. As to any matter disposed of (whether by a compromise
payment, pursuant to a consent decree or otherwise) without an adjudication in a decision on the
merits by a court, or by any other body before which the proceeding was brought, that such Covered
Person either (a) did not act in good faith in the reasonable belief that such Covered Person’s
action was in the best interests of the Trust or (b) is liable to the Trust or its Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of such Covered Person’s office, indemnification shall be provided if (a)
approved as in the best interest of the Trust, after notice that it involves such indemnification,
by at least a majority of the Trustees who are disinterested persons and are not Interested Persons
(provided that a majority of such Trustees then in office act on the matter), upon a determination,
based upon a review of readily available facts (but not a full trial-type inquiry) that such
Covered Person acted in good faith in the reasonable belief that such Covered Person’s action was
in the best interests of the Trust and is not liable to the Trust or its Shareholders by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in
the conduct of such Covered Person’s office, or (b) there has been obtained an opinion in writing
of independent legal counsel, based upon a review of readily available facts (but not a full
trial-type inquiry) to the effect that such Covered Person appears to have acted in good faith in
the reasonable belief that such Covered Person’s action was in the best interests of the Trust and
that such indemnification would not protect such Covered Person against any liability to the Trust
to which such Covered Person 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.
Any approval pursuant to this Section shall not prevent the recovery from any Covered Person of any
amount paid to such Covered Person in accordance with this Section as indemnification if such
Covered Person is subsequently adjudicated by a court of competent jurisdiction not to have acted
in good faith in the reasonable belief that such Covered Person’s action was in the best interests
of the Trust or to have been liable to the Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person’s office.
10.3 Indemnification Not Exclusive. The right of indemnification hereby provided shall
not be exclusive of or affect any other rights to which any such Covered Person may be entitled. As
used in this Article 10, the term “Covered Person” shall include such person’s heirs, executors and
administrators, and a “disinterested person” is a person against whom none of the actions, suits or
other proceedings in question or another action, suit, or other proceeding on the same or similar
grounds is then or has been pending. Nothing contained in this article shall affect any rights to
indemnification to which personnel of the Trust, other than Trustees and officers, and other
persons may be entitled by contract or otherwise under law, nor the power of the Trust to purchase
and maintain liability insurance on behalf of such person.
10.4 Limitation: Notwithstanding any provisions in the Declaration of Trust and these By-Laws
pertaining to indemnification, all such provisions are limited by the following
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undertaking set forth in the rules promulgated by the Securities and Exchange Commission: In
the event that a claim for indemnification is asserted by a Trustee, officer or controlling person
of the Trust in connection with the registered securities of the Trust, the Trust will not make
such indemnification unless (i) the Trust has submitted, before a court or other body, the question
of whether the person to be indemnified was liable by reason of willful misfeasance, bad faith,
gross negligence, or reckless disregard of duties, and has obtained a final decision on the merits
that such person was not liable by reason of such conduct or (ii) in the absenceof such decision,
the Trust shall have obtained a reasonable determination, based upon a review of the facts, that
such person was not liable by virtue of such conduct, by (a) the vote of a majority of Trustees who
are neither interested persons as such term is defined in the Investment Company Act of 1940, nor
parties to the proceeding or (b) an independent legal counsel in a written opinion. The Trust will
not advance attorneys’ fees or other expenses incurred by the person to be indemnified unless the
Trust shall have (i) received an undertaking by or on behalf of such person to repay the advance
unless it is ultimately determined that such person is entitled to indemnification and one of the
following conditions shall have occurred: (x) such person shall provide security for his
undertaking, (y) the Trust shall be insured against losses arising by reason of any lawful advances
or (z) a majority of the disinterested, non-party Trustees of the Trust, or an independent legal
counsel in a written opinion, shall have determined that based on a review of readily available
facts there is reason to believe that such person ultimately will be found entitled to
indemnification.
ARTICLE 11
Shareholders
Shareholders
11.1 Meetings. A meeting of the shareholders shall be called by the Secretary whenever
ordered by the Trustees, or requested in writing by the holder or holders of at least 10% of the
outstanding shares entitled to vote at such meeting. If the meeting is a meeting of the
shareholders of one or more series of shares, but not a meeting of all shareholders of the Trust,
then only the shareholders of such one or more series shall be entitled to notice of and to vote at
the meeting. If the Secretary, when so ordered or requested, refuses or neglects for more than five
days to call such meeting, the Trustees, or the shareholders so requesting may, in the name of the
Secretary, call the meeting by giving notice thereof in the manner required when notice is given by
the Secretary.
11.2 Access to Shareholder List. Shareholders of record may apply to the Trustees for
assistance in communicating with other shareholders for the purpose of calling a meeting in order
to vote upon the question of removal of a Trustee. When ten or more shareholders of record who have
been such for at least six months preceding the date of application and who hold in the aggregate
shares having a net asset value of at least $25,000 or at least 1% of the outstanding shares,
whichever is less, so apply, the Trustees shall within five business days either:
(i) afford to such applicants access to a list of names and addresses of all shareholders as
recorded on the books of the Trust; or
(ii) inform such applicants of the approximate number of shareholders of record and the
approximate cost of mailing material to them and, within a reasonable time thereafter, mail, at the
applicants’ expense, materials submitted by the applicants, to all such
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shareholders of record. The Trustees shall not be obligated to mail materials which they
believe to be misleading or in violation of applicable law.
11.3 Record Dates. For the purpose of determining the shareholders of any series who
are entitled to vote or act at any meeting or any adjournment thereof, or who are entitled to
receive payment of any dividend or of any other distribution, the Trustees from time to time may
fix a time, which shall be not more than 90 days before the date of any meeting of shareholders or
the date of payment of any dividend or of any other distribution, as the record date for
determining the shareholders of such series having the right to notice of and to vote at such
meeting and any adjournment thereof or the right to receive such dividend or distribution, 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; or without fixing such record
date the Trustees may for any such purposes close the register or transfer books for all or part of
such period.
11.4 Place of Meetings. All meetings of the shareholders shall be held at the
principal office of the Trust or at such other place within the United States as shall be
designated by the Trustees or the President of the Trust.
11.5 Notice of Meetings. A written notice of each meeting of shareholders, stating the
place, date and hour and the purposes of the meeting, shall be given at least ten days before the
meeting to each shareholder entitled to vote thereat by (i) leaving such notice with him or at his
residence or usual place of business, (ii) by mailing it, postage prepaid, and addressed to such
shareholder at his address as it appears in the records of the Trust, or (iii) to the extent
permitted by applicable law, electronic mail or other form of legally permissible electronic
transmission. Such notice shall be given by the Secretary or an Assistant Secretary or by an
officer designated by the Trustees. No notice of any meeting of shareholders need be given to a
shareholder if a written waiver of notice, executed before or after the meeting by such shareholder
or his attorney thereunto duly authorized, is filed with the records of the meeting. Notice
directed to a shareholder by electronic mail or other form of electronic transmission may be
transmitted to any address at which the shareholder receives electronic mail or other electronic
transmissions.
11.6 Ballots. No ballot shall be required for any election unless requested by a
shareholder present or represented at the meeting and entitled to vote in the election.
11.7 Proxies. Shareholders entitled to vote may vote (i) in person, (ii) by proxy in
writing dated not more than six months before the meeting named therein, which proxies shall be
filed with the Secretary or other person responsible to record the proceedings of the meeting
before being voted or (iii) by transmitting any authorization by telegram, cablegram, datagram,
electronic mail, or any other legally permissible electronic or telephonic means in accordance with
the Trust’s procedures. Unless otherwise specifically limited by their terms, such proxies shall
entitle the holders thereof to vote at any adjournment of such meeting but shall not be valid after
the final adjournment of such meeting.
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