EXHIBIT 5
AMENDED AND RESTATED BY-LAWS
OF
GMO TRUST
Effective as of March 24, 2005
ARTICLE 1
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 GMO Trust (the "Trust"), the Massachusetts business
trust established by the Declaration of Trust.
1.2 Principal Office of the Trust. The principal office of the Trust shall be
located in Boston, Massachusetts.
ARTICLE 2
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 may from time to time
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
Chairman of the Board, the President, or the Treasurer or by two or more
Trustees, sufficient notice thereof being given to each Trustee by the Clerk or
an Assistant Clerk or by the person or persons calling the meeting.
2.3 Notice. It shall be sufficient notice to a Trustee of a special meeting to
send notice by mail or courier at least forty-eight hours or by telegram at
least twenty-four hours before the meeting addressed to the Trustee at his usual
or last known business or residence address or to give notice to him in person
or by telephone, telex or telecopy or other electronic means (including by
facsimile, telephone voice-message or e-mail) in each case 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 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. Neither notice of a meeting nor a waiver of a notice need specify the
purposes of the meeting.
2.4 Quorum. At any meeting of the Trustees a majority of the Trustees then in
office shall constitute a quorum. Any meeting may be adjourned from time to time
by a majority of the votes cast upon the question, whether or not a quorum is
present, and the meeting may be held as adjourned without further notice.
2.5 Action by Vote. When a quorum is present at any meeting, a majority of
Trustees present may take any action, except when a larger vote is expressly
required by law, by the Declaration of Trust or by these By-Laws.
2.6 Action by Writing. Except as required by law, any action required or
permitted to be taken at any meeting of the Trustees may be taken without a
meeting if a majority of the Trustees (or such larger proportion thereof as
shall be required by any express provision of the Declaration of Trust or these
By-Laws) consent to the action in writing and such written consents are filed
with the records of the meetings of Trustees. Such consent shall be treated for
all purposes as a vote taken at a meeting of Trustees.
2.7 Presence through Communications Equipment. Except as required by law, the
Trustees may participate in a meeting of Trustees by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting.
2.8 Committees. Except as provided below or as otherwise specifically provided
in the resolutions constituting a Committee of the Trustees and providing for
the conduct of its meetings, 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) or evidenced by one or more
writings signed by such a majority. Members of a Committee may participate in a
meeting of such Committee by means of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time and participation by such means
shall constitute presence in person at a meeting.
With respect to a Pricing Committee of the Trustees, one or more of the
Committee members shall constitute a quorum for the transaction of business.
Except as specifically provided in the resolutions constituting a Committee of
the Trustees and providing for the conduct of its meetings, Article 2, Section
2.3 of these By-Laws relating to special meetings shall govern the notice
requirements for Committee meetings, except that it shall be sufficient notice
to a Pricing Committee of the Trustees to provide notice by telephone or to send
notice by telegram, telex or telecopy or other electronic means (including by
facsimile, by telephone voice-message or e-mail) in each case at least fifteen
minutes before the meeting.
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ARTICLE 3
Officers and Chairman of the Board
3.1 Enumeration; Qualification. The officers of the Trust shall be a President,
a Treasurer, a Clerk, and such other officers, if any, as the Trustees from time
to time may in their discretion elect. The Trust may also have such agents as
the Trustees from time to time may in their discretion appoint. Any officer may,
but need not, be a Trustee or shareholder of the Trust. Any two or more offices
may be held by the same person.
3.2 Election and Tenure. The President, the Treasurer, the Clerk, and such other
officers as the Trustees may in their discretion from time to time elect shall
each be elected by the Trustees to serve until his successor is elected or
qualified, or until he sooner dies, resigns, is removed or becomes disqualified.
Each officer shall hold office and each agent shall retain authority at the
pleasure of the Trustees.
3.3 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 are commonly incident to the office
occupied by him or her as if the Trust were organized as a Massachusetts
business corporation and such other duties and powers as the Trustees may from
time to time designate.
3.4 Chairman of the Board. There shall be a Chairman of the Board, who shall not
be an officer of the Trust. The functions of the Chairman of the Board may be
performed by more than one person. Any Chairman of the Board shall be elected by
a majority of the Trustees, including a majority of the disinterested Trustees
if required by the Investment Company Act of 1940, as amended (the "Investment
Company Act"). If required by the Investment Company Act, any Chairman of the
Board shall be a disinterested Trustee and may, but need not, be a shareholder
of the Trust. The powers and duties of the Chairman of the Board shall include
any and all such powers and duties relating to the Trustees as, from time to
time, may be conferred upon or assigned to the Chairman of the Board by the
Trustees or as may be required by law, provided that the Chairman of the Board
shall have no individual authority to act for the Trust as an officer of the
Trust. In carrying out his responsibilities and duties, the Chairman of the
Board may seek assistance and input from other Trustees or Committees of the
Trustees, officers of the Trust and the Trust's investment adviser and other
service providers, as deemed necessary or appropriate. The Trustees, including a
majority of the disinterested Trustees if required by the Investment Company
Act, may appoint one or more persons to perform the duties of the Chairman of
the Board in the event of his absence at any meeting or in the event of his
disability. The Chairman of the Board shall serve until his successor is elected
or qualified, or until he sooner dies, resigns, is removed or becomes
disqualified.
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3.5 President and Vice Presidents. The President shall have the duties and
powers specified in these By-Laws and shall have such other duties and powers as
may be determined by the Trustees.
Any Vice Presidents shall have such duties and powers as shall be designated
from time to time by the Trustees.
3.6 Chief Executive Officer. The Chief Executive Officer of the Trust shall be
the President or such other officer as is designated by the Trustees and shall,
subject to the control of the Trustees, have general charge and supervision of
the business of the Trust. If no such designation is made, the President shall
be the Chief Executive Officer.
The Chief Executive Officer shall serve as the principal executive officer of
the Trust for purposes of the Trust's regulatory filings, including without
limitation all filings relating to the Trust's registration statement (including
amendments thereto) and all certifications required pursuant to the
Xxxxxxxx-Xxxxx Act of 2002 and its implementing rules and regulations (together,
the "Xxxxxxxx-Xxxxx Act"). The Chief Executive Officer shall also serve as the
principal executive officer of the Trust for all other purposes in connection
with the Trust's compliance with the Xxxxxxxx-Xxxxx Act, including, together
with the Treasurer, responsibility for establishing, maintaining and evaluating
disclosure controls and procedures for the Trust.
3.7 Treasurer. The Treasurer shall be the chief financial and accounting officer
of the Trust, and shall, 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, 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 Chief Executive Officer.
The Treasurer shall serve as the principal financial and accounting officer of
the Trust for purposes of the Trust's regulatory filings, including without
limitation all filings relating to the Trust's registration statement (including
amendments thereto) and all certifications required pursuant to the
Xxxxxxxx-Xxxxx Act. The Treasurer shall also serve as the principal financial
officer of the Trust for all other purposes in connection with the Trust's
compliance with the Xxxxxxxx-Xxxxx Act, including, together with the Chief
Executive Officer, responsibility for establishing, maintaining and evaluating
disclosure controls and procedures for the Trust.
3.8 Clerk. The Clerk 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 Clerk from any
meeting of the Shareholders or Trustees, an assistant Clerk, or if there be none
or if he is absent, a temporary clerk chosen at such meeting shall record the
proceedings thereof in the aforesaid books.
3.9 Resignations and Removals. The Chairman of the Board may resign from his
duties as such, and any officer of the Trust may resign such office, at any time
by written instrument signed by
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him and delivered to the President or the Clerk 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 at any time remove any officer of
the Trust with or without cause by a vote of a majority of the Trustees. The
Trustees may at any time relieve any Chairman of the Board from his duties as
such with or without cause by a vote or consent of a majority of the Trustees,
including a majority of the disinterested Trustees. Except to the extent
expressly provided in a written agreement with the Trust, no officer of the
Trust or Chairman of the Board resigning and no officer of the Trust or Chairman
of the Board 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.
ARTICLE 4
Indemnification
4.1 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
proceedings, 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 any alleged act or
omission as a Trustee or officer or by reason of his 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 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 interest 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, may be paid from
time to time by the Trust in advance of the final disposition of any such
action, suit or proceeding on the condition that the amounts so paid shall be
repaid to the Trust if it is ultimately determined that indemnification of such
expenses is not authorized under this Article.
4.2 Compromise Payment. As to any matter disposed of by a compromise payment by
any such Covered Person referred to in Section 4.1 above, pursuant to a consent
decree or otherwise, no such indemnification either for said payment or for any
other expenses shall be provided unless such compromise shall be approved as in
the best interests of the Trust, after notice that it involved such
indemnification, (a) by a disinterested majority of the Trustees then in office;
or
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(b) by a majority of the disinterested Trustees then in office; or (c) by any
disinterested person or persons to whom the question may be referred by the
Trustees, provided that in the case of approval pursuant to clause (b) or (c)
there has been obtained an opinion in writing of independent legal counsel to
the effect that such Covered Person appears to have acted in good faith in the
reasonable belief that his or her action was in the best interests of the Trust
and that such indemnification would not protect such person against any
liability to the Trust or its Shareholders to which such 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 office; or (d) by
vote of Shareholders holding a majority of the Shares entitled to vote thereon,
exclusive of any Shares beneficially owned by any interested Covered Person.
Approval by the Trustees pursuant to clause (a) or (b) or by any disinterested
person or persons pursuant to clause (c) of this Section shall not prevent the
recovery from any Covered Person of any amount paid to such Covered Person in
accordance with any of such clauses 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.
4.3 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 4, the term "Covered Person"
shall include such person's heirs, executors and administrators; an "interested
Covered Person" is one against whom the action, suit or other proceeding in
question or another action, suit or other proceeding on the same or similar
grounds is then or has been pending; and a "disinterested Trustee" or
"disinterested person" is a Trustee or a person against whom none of such
actions, suits or other proceedings 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 any such person.
ARTICLE 5
5.1 General. 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
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
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6.1 General. Except as from time to time otherwise provided by the Trustees, the
initial fiscal year of the Trust shall end on such date as is determined in
advance or in arrears.
ARTICLE 7
Seal
7.1 General. 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 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
8.1 General. Except as the Trustees may generally or in particular cases
authorize the execution thereof in some other manner, all checks, notes, drafts
and other obligations and all registration statements and amendments thereto and
all applications and amendments thereto to the Securities and Exchange
Commission shall be signed by one or more of the Chairman of the Board, the
President, any Vice President or the Treasurer or any of such other officers or
agents as shall be designated for that purpose by a vote of the Trustees.
ARTICLE 9
Provisions Relating to the
Conduct of the Trust's Business
9.1 Certain Definitions. When used herein the following words shall have the
following meanings: "Distributor" shall mean any one or more partnerships,
corporations, firms or associations which have distributor's or principal
underwriter's contracts in effect with the Trust providing that redeemable
shares of any class or series issued by the Trust shall be offered and sold by
such Distributor. "Adviser" shall mean any partnership, corporation, firm or
association which may at the time have an advisory or management contract with
the Trust.
9.2 Limitation on Dealings with Officers or Trustees. The Trust will not lend
any of its assets to the Distributor or Adviser or to any officer or director of
the Distributor or Adviser or any officer or Trustee of the Trust and shall not
permit any officer or Trustee or any officer or director of the Distributor or
Adviser, to deal for or on behalf of the Trust with himself as principal or
agent, or with any partnership, association or corporation in which he has a
financial interest; provided
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that the foregoing provisions shall not prevent (a) officers and Trustees of the
Trust or officers and directors of the Distributor or Adviser from buying,
holding or selling shares in the Trust or from being partners, officers or
directors of or otherwise financially interested in the Distributor or the
Adviser; (b) a purchase or sale of securities or other property if such
transaction is permitted by or is exempt or exempted from the provisions of the
Investment Company Act of 1940 and does not involve any commission or profit to
any securities dealer who is, or one or more of whose partners, shareholders,
officers or directors is, an officer or Trustee of the Trust or an officer or
director of the Distributor or Adviser; (c) employment of legal counsel,
registrars, transfer agents, shareholder servicing agents, dividend disbursing
agents or custodians who are or any one of which has a partner, shareholder,
officer or director who is, an officer or Trustee of the Trust or an officer or
director of the Distributor or Adviser if only customary fees are charged for
services to the Trust; and (d) sharing of statistical, research, legal and
management expenses and office hire and expenses with any other investment
company in which an officer or Trustee of the Trust or an officer or director of
the Distributor or Adviser is an officer or director or otherwise financially
interested.
9.3 Limitation on Dealing in Securities of the Trust by Certain Officers,
Trustees, Distributor or Adviser. Neither the Distributor nor Adviser, nor any
officer or Trustee of the Trust or officer, director or partner of the
Distributor or Adviser shall take long or short positions in securities issued
by the Trust; provided, however, that:
(a) The Distributor may purchase from the Trust and otherwise deal in
shares issued by the Trust pursuant to the terms of its contract with the Trust;
(b) Any officer or Trustee of the Trust or officer or director or partner
of the Distributor or Adviser or any trustee or fiduciary for the benefit of any
of them may at any time, or from time to time, purchase from the Trust or from
the Distributor shares issued by the Trust at the price available to the public
or to such officer, Trustee, director, partner or fiduciary as long as such
purchase is not in contravention of any applicable state or federal requirement;
and
(c) The Distributor or the Adviser may at any time, or from time to time,
purchase for investment shares issued by the Trust.
9.4 Securities and Cash of the Trust to be Held by Custodian Subject to Certain
Terms and Conditions. All securities and cash owned by the Trust shall be held
in conformity with applicable provisions of the Investment Company Act of 1940
and the rules thereunder, each as may be amended from time to time.
9.5 Determination of Net Asset Value. The Trustees or any officer or officers or
agent or agents of the Trust designated from time to time for this purpose by
the Trustees shall determine at least once daily the net income and the value of
all the assets attributable to any class or series of shares of the Trust on
each day upon which the New York Stock Exchange is open for unrestricted trading
or at such other times as the Trustees shall, consistent with the Investment
Company Act of 1940 and the rules thereunder, designate. In determining asset
values, all
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securities for which representative market quotations are readily
available shall be valued at market value and other securities and assets shall
be valued at fair value, all as determined in good faith by the Trustees or an
officer or officers or agent or agents, as aforesaid, in accordance with
accounting principles generally accepted at the time. Notwithstanding the
foregoing, the assets belonging to any class or series of shares of the Trust
may, if so authorized by the Trustees, be valued in accordance with the
amortized cost method, subject to the power of the Trustees to alter the method
for determining asset values. The value of such assets so determined, less total
liabilities belonging to that class or series of shares (exclusive of capital
stock and surplus) shall be the net asset value until a new asset value is
determined by the Trustees or such officers or agents. In determining the net
asset value the Trustees or such officers or agents may include in liabilities
such reserves for taxes, estimated accrued expenses and contingencies in
accordance with accounting principles generally accepted at the time as the
Trustees or such officers or agents may in their best judgment deem fair and
reasonable under the circumstances. The manner of determining net asset value
may from time to time be altered as necessary or desirable in the judgment of
the Trustees to conform it to any other method prescribed or permitted by
applicable law or regulation. Determinations of net asset value made by the
Trustees or such officers or agents 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.
ARTICLE 10
Amendment to the By-Laws
10.1 General. These By-Laws may be amended or repealed, in whole or in part, by
a majority of the Trustees then in office at any meeting of the Trustees.
ARTICLE 11
Meetings of Shareholders
11.1 Presence through Communications Equipment. Except as required by law, the
Shareholders of the Trust may participate in a meeting of Shareholders by means
of a conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other at the same time
and participation by such means shall constitute presence in person at a
meeting. Participation by such means shall be pursuant to reasonable procedures
approved by the officers of the Trust in connection with such meeting.
11.2 Proxy Instructions Transmitted by Telephonic or Electronic Means. The
placing of a Shareholder's name on a proxy pursuant to telephonic or
electronically transmitted instructions obtained pursuant to procedures
reasonably designed to verify that such instructions have been
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authorized by such Shareholder shall constitute execution of such proxy by or on
behalf of such Shareholder.
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