FIRST AMENDMENT TO AGREEMENT AND DECLARATION OF TRUST
This First Amendment (the "Amendment") to the Agreement and
Declaration of Trust of Old Mutual Funds III (the "Trust")
amends the Agreement and Declaration of Trust of the Trust
dated as of February 20, 2008, as amended (the "Agreement").
By unanimous written consent, the Board of Trustees and the
Shareholders of the Trust, in accordance with Section 9.8 of
the Agreement, have approved the Amendment to the Agreement.
Pursuant to Section 9.8 of the Agreement, this Amendment may
be executed by a duly authorized officer of the Trust.
NOW THEREFORE, the Agreement is hereby amended as follows:
1. Section 4.3 of the Agreement is hereby amended and
restated as set forth below:
Section 4.3 Action by the Trustees. The Board of
Trustees or any committee thereof shall act by majority vote
of those present at a meeting duly called (including a
meeting by telephonic or other electronic means, unless the
1940 Act requires that a particular action be taken only at
a meeting of the Trustees in person) at which a quorum
required by the By-Laws is present. Any action that may be
taken by the Board of Trustees or any committee thereof by
majority vote at a meeting duly called and at which a quorum
required by the By-Laws is present, may also be taken by
consent in writing or by electronic transmission (without a
meeting) signed by the Trustees or members of the committee
having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting
at which all Trustees or members of the committee entitled
to vote thereon were present and voted. Any such writing or
writings and electronic transmission or transmissions, as
the case may be, shall be filed with the minutes of
proceedings of the Board or committee. Consents or waivers
in writing or by electronic transmission of the Trustees may
be executed or effected in one or more counterparts. Any
consent or waiver in writing or by electronic transmission
may be provided and delivered to the Trust by any means by
which notice may be given to a Trustee. Subject to the
requirements of this Agreement and the 1940 Act, the
Trustees by Majority Trustee Vote may delegate to any
Trustee or Trustees authority to approve particular matters
or take particular actions on behalf of the Trust. For
purposes hereof, the term "electronic transmission" means
any form of communication, not directly involving the
physical transmission of paper, that creates a record that
may be retained, retrieved, and reviewed by a recipient
thereof, and that may be directly reproduced in paper form
by such a recipient through an automated process, or as
otherwise provided under the Delaware Act.
2. Section 5.1 of the Agreement is hereby amended and
restated as set forth below:
Section 5.1Investment Adviser. The Trustees may in
their discretion, from time to time, enter into an
investment advisory or management contract or contracts with
respect to the Trust or any Portfolio whereby the other
party or parties to such contract or contracts shall
undertake to furnish the Trustees with such management,
investment advisory, statistical and research facilities and
services and such other facilities and services, if any, all
upon such terms and conditions (including any Shareholder
vote) that may be required under the 1940 Act, as may be
prescribed in the By-Laws, or as the Trustees may in their
discretion determine (such terms and conditions not to be
inconsistent with the provisions of this Agreement or of the
By-Laws).
The Trustees may authorize the investment adviser to
employ, from time to time, one or more sub-advisers to
perform such of the acts and services of the investment
adviser, and upon such terms and conditions, as may be
agreed upon among the Trustees, the investment adviser and
sub-adviser. Any references in this Agreement to the
investment adviser shall be deemed to include such sub-
advisers, unless the context otherwise requires, provided
that no Shareholder approval shall be required with respect
to the engagement or termination of any sub-adviser unless
required under the 1940 Act or other law, contract or order
applicable to the Trust.
3. Section 6.1 of the Agreement is hereby amended and
restated as set forth below:
Section 6.1 Voting Powers.
(a) The Shareholders shall have power to vote
only (a) for the election of Trustees, provided that a
meeting of Shareholders has been called for that purpose,
(b) for the removal of Trustees to the extent provided in
Section 3.3 hereof, (c) with respect to any investment
advisory or management contract to the extent provided in
Section 5.1 hereof, (d) with respect to an amendment of this
Agreement to the extent provided in Section 9.8, and
(e) with respect to such additional matters relating to the
Trust as may be required by law, contract or order
applicable to the Trust, by this Agreement, or by any
registration of the Trust with the Commission or any State,
or as the Trustees may determine in their sole discretion.
(b) Notwithstanding paragraph (a) of this Section
6.1 or any other provision of this Agreement (including the
Bylaws) which would by its terms provide for or require a
vote of Shareholders, the Trustees may take action without a
Shareholder vote if (i) the Trustees shall have obtained an
opinion of counsel that a vote or approval of such action by
Shareholders is not required under (A) the 1940 Act or any
other applicable laws, and (B) any registrations, orders,
undertakings or agreements of the Trust known to such
counsel, and (ii) if the Trustees determine that the taking
of such action without a Shareholder vote would be
consistent with the best interests, or not opposed to the
best interests, of the Shareholders.
Until Shares are issued, the Trustees may
exercise all rights of Shareholders and may take any action
required or permitted by law, this Agreement or any of the
By-Laws of the Trust to be taken by Shareholders.
On any matter submitted to a vote of the
Shareholders, all Shares shall be voted together, except
when required by applicable law or when the Trustees have
determined that the matter affects the interests of one or
more Portfolios (or Classes), then only the Shareholders of
all such affected Portfolios (or Classes) shall be entitled
to vote thereon. Each whole Share shall be entitled to one
vote as to any matter on which it is entitled to vote, and
each fractional Share shall be entitled to a proportionate
fractional vote. All Shares shall be voted in the aggregate
and not by Class; provided, however, that to the extent
Portfolio or Class voting is required by the 1940 Act, or
otherwise directed by the Trustees, as to any such matter,
Shares shall be voted by individual Portfolio or Class. No
holder of Shares of any Portfolio or Class shall be entitled
to vote on any acquisition of assets of another Company with
and into the Trust if the consideration for such acquisition
consists solely of the Shares of another Portfolio or Class
of the Trust. The vote necessary to approve any such matter
shall be set forth in the By-Laws.
4. Section 9.3(a) of the Agreement is hereby amended and
restated as follows:
Section 9.3 Termination of Trust or Portfolio or
Class.
(a) Unless terminated as provided herein, the Trust
shall continue without limitation of time. The Trust may be
terminated at any time by the Trustees upon written notice
to the Shareholders. Any Portfolio or Class may be
terminated at any time by the Trustees upon written notice
to the Shareholders of that Portfolio or Class.
5. Section 9.8 of the Agreement is hereby amended and
restated as follows:
Section 9.8 Amendments. Except as specifically
provided in this Section 9.8, the Trustees may, without
Shareholder vote, amend or otherwise supplement this
Agreement by making an amendment, an Agreement supplemental
hereto or an amended and restated Agreement. Shareholders
shall have the right to vote (a) on any amendment that would
limit the right of Shareholders to vote under Section 6.1 or
would amend this Section 9.8; (b) on any amendment as may be
required by law or by the Trust's registration statement
filed with the Commission and (c) on any amendment submitted
to them by the Trustees. Any amendment required or
permitted to be submitted to Shareholders which, as the
Trustees determine, shall affect the Shareholders of one or
more Portfolios or class shall be authorized by vote of the
Shareholders of each Portfolio or class affected and no vote
of Shareholders of a Portfolio or class not affected shall
be required. The Trustees may, without Shareholder vote,
restate, amend, or otherwise supplement the Certificate of
Trust as the Trustees deem necessary or desirable. Any such
amendment shall become effective, unless otherwise provided
by such Trustees, upon being executed by a duly authorized
officer of the Trust. A certification signed by a duly
authorized officer of the Trust setting forth an amendment
to this Agreement and reciting that it was duly adopted by
the Shareholders or by the Trustees as aforesaid, or a copy
of this Agreement, as amended, executed by a majority of the
Trustees, or a duly authorized officer of the Trust, shall
be conclusive evidence of such amendment when lodged among
the records of the Trust.
IN WITNESS WHEREOF, the undersigned, a duly
authorized officer of the Trust, has executed this
Amendment, effective as of November 12, 2008.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Treasurer
