EXHIBIT (B)
AMENDED AND RESTATED BY-LAWS
OF
GMO TRUST
Effective as of March 1, 2007
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 (a)
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, (b) to send notice by email at
least twenty-four hours before the meeting addressed to the Trustee at his usual
or last known email address, or (c) to give notice to him in person or by
telephone, telex or telecopy or other electronic means (including by facsimile
or telephone voice-message) 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. Subject to the provisions of Section 2.9, 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.
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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.
2.9 Emergency Procedures. For purposes of this Section 2.9, an emergency shall
exist if, in the judgment of one or more officers of the Trust, action by the
Trustees is necessary or desirable and a quorum of the Trustees or a Committee
thereof, as defined in Article 2, Sections 2.4 and 2.8 of these By-Laws, cannot
readily be assembled because of a catastrophic event. During the existence of an
emergency, an emergency meeting of the Trustees or a Committee thereof may be
called by any officer of the Trust by giving notice to the Trustees in the media
contemplated by Article 2, Sections 2.3 and 2.8 of these By-Laws but with only
fifteen minutes advance notice. The Trustee or Trustees in attendance at such
emergency meeting shall constitute a quorum of the Trustees or the relevant
Committee thereof at any such emergency meeting, and shall have all of the
powers of the Trustees or the Committee thereof to conduct the business of the
Trust and to take any action on behalf of the Trustees or the Committee thereof
that is in accordance with applicable law, the Declaration of Trust, and these
By-Laws. During the existence of an emergency, every Trustee attending a meeting
of a Committee shall be an alternate member of that Committee, shall have all of
the powers of a member of such Committee, and shall be deemed a member of such
Committee for purposes of constituting a quorum of the Committee.
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Failure of any Trustee to receive actual notice of an emergency meeting called
pursuant to this Section 2.9 shall not affect the power of the Trustee or
Trustees present at such meeting to exercise the powers described in this
Section 2.9.
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.
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.
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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 principal financial officer, responsibility for establishing,
maintaining and evaluating disclosure controls and procedures for the Trust.
3.7 Treasurer. The Treasurer 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.
3.8 Chief Financial Officer. The Treasurer or such other officer as is
designated by the Trustees shall be the Chief Financial Officer of the Trust.
The Chief Financial Officer 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 Chief Financial Officer 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 principal executive officer, responsibility for establishing,
maintaining and evaluating disclosure controls and procedures for the Trust.
3.9 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.
3.10 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 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.
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ARTICLE 4
Indemnification
4.1 Trustees, Officers, etc. The Trust shall, to the maximum extent permitted by
applicable law, 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 or not opposed to 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 (but excluding amounts paid in satisfaction
of judgments, in compromise or as fines or penalties), shall be paid by the
Trust in advance of the final disposition of 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, however, that
(a) such Covered Person shall provide security for his or her undertaking, (b)
the Trust shall be insured against losses arising by reason of such Covered
Person's failure to fulfill his or her undertaking, or (c) either a majority of
the Trustees who are disinterested persons and who are not Interested Persons of
the Trust (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.
4.2 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 or not
opposed to 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 (x) approved as in or not
opposed to the best interests 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 of the Trust (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 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 (y)
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 indemnification would not protect such Covered
Person 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 his or her office. Any approval pursuant to this Section 4.2 shall
not prevent the recovery from any Covered Person of any amount paid to such
Covered Person in accordance with this Section 4.2 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 or
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not opposed to 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 Rebuttable Presumption. For purposes of the determination or opinion
referred to in clause (c) of Section 4.1 or clauses (x) or (y) of Section 4.2,
the disinterested Trustees acting on the matter or independent legal counsel, as
the case may be, shall be entitled to rely upon a rebuttable presumption that
the Covered Person has not engaged in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office.
4.4 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, whether by contract or otherwise. As used in this
Article 4, the term "Covered Person" shall include such person's heirs,
executors and administrators; 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; and the term "Interested Person"
shall have the meaning set forth in the Investment Company Act. Nothing
contained in this Article 4 shall affect the power of the Trust to purchase and
maintain liability insurance on behalf of any such person.
4.5 Amendment. Notwithstanding any other provision of these By-Laws relating to
their amendment generally, any repeal or modification of this Article 4 shall
not adversely affect any right or protection of a Trustee or officer of the
Trust with respect to any acts or omission of such Trustee or officer occurring
prior to such repeal or modification except as may be required by law.
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
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.
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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 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 Determination of Net Asset Value. The net asset value per share of each
class and each series of shares of the Trust shall be determined in accordance
with the Investment Company Act and the rules thereunder and any related
procedures adopted by the Trustees from time to time. Determinations made under
and pursuant to this Section 9.1 in good faith and in accordance with the
provisions of the Investment Company Act and the rules thereunder shall be
binding on all parties concerned.
ARTICLE 10
Amendment to the By-Laws
10.1 General. Subject to the provisions of Section 4.5, these By-Laws may be
amended or repealed, in whole or in part, by a majority of the Trustees then in
office.
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 authorized by
such Shareholder shall constitute execution of such proxy by or on behalf of
such Shareholder.
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