EXHIBIT 99.1(k)
THE BENCHMARK FUNDS
AMENDMENT NO. 11 TO AGREEMENT AND DECLARATION OF TRUST
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WHEREAS, Section 4.1 of the Agreement and Declaration of Trust dated
July 15, 1982, as amended, (the"Declaration") of The Benchmark Funds (the
"Trust") provides that the Declaration may be amended to establish and designate
new Series of Units by an instrument in writing executed by a majority of the
Trustees of the Trust and setting forth such establishment and designation and
the relative rights and preferences of such Series;
NOW THEREFORE, the undersigned, being a majority of the Trustees of the
Trust hereby:
(1) amend the Declaration by designating and establishing eight
additional Series of Units (sometimes referred to collectively as "Additional
Series") to be known respectively as "Equity Index Units," "Small Company Index
Units," "Diversified Growth Units," "Focused Growth Units," "U.S. Treasury Index
Units," "U.S. Government Securities Units," "Short-Intermediate Bond Units" and
"Bond Units". Except as otherwise provided for below with respect to Units of a
particular Subseries of an Additional Series, all Units of each Additional
Series shall be identical and shall have the relative rights and preferences set
forth in Subsections (a) through (k) of Section 4.2 of the Declaration;
(2) amend the Declaration by designating and establishing four
Subseries, respectively Subseries A, B, C and D, within each Additional Series.
Units of a particular Subseries of an Additional Series shall also be Units of
that Series under the Declaration. Pursuant to Section 4.1 of the Declaration,
Units of each respective Subseries shall have the following relative rights and
preferences:
(a) Liabilities belonging to Subseries. Each Subseries of an Additional
Series shall bear a pro rata portion of the "liabilities belonging to" that
Series. In addition, to the extent permitted by rule or order of the Securities
and Exchange Commission and as may be from time to time determined by the Board
of Trustees (whether or not Units of a particular Subseries affected are issued
and outstanding):
(i) Subseries A Units of a particular Additional Series and no other
Subseries established hereby shall bear such expenses, costs, charges and
reserves as the Board of Trustees may from time to time determine are directly
attributable to such Units
and which should therefore be borne solely by such Units;
(ii) Subseries B Units of a particular Additional Series and no other
Subseries established hereby shall bear (1) the expenses and liabilities of
payments to institutions under any agreements entered into by or on behalf of
the Trust which provide for services by the institutions exclusively for
beneficial Unitholders of such Subseries B, (2) expenses and liabilities arising
from transfer agency services that the Board of Trustees may from time to time
determine are directly attributable to such Subseries B Units, an (3) such other
expenses, costs, charges and reserves as the Board of Trustees may from time to
time determine are directly attributable to such Subseries B Units and which
should therefore be borne solely by such Units;
(iii) Subseries C Units of a particular Additional Series and no other
Subseries established hereby shall bear (1) the expenses and liabilities of
payments to institutions under any agreements entered into by or on behalf of
the Trust which provide for services by the institutions exclusively for
beneficial Unitholders of such Subseries C, (2) expenses and liabilities arising
from transfer agency services that the Board of Trustees may from time to time
determine are directly attributable to such Subseries C Units, and (3) such
other expenses, costs, charges and reserves as the Board of Trustees may from
time to time determine are directly attributable to such Subseries C Units and
which should therefore be borne solely by such Units;
(iv) Subseries D Units of a particular Additional Series and no other
Subseries established hereby shall bear (1) the expenses and liabilities of
payments to institutions under any agreements entered into by or on behalf of
the Trust which provide for services by the institutions exclusively for
beneficial Unitholders of such Subseries D, (2) expenses and liabilities arising
from transfer agency services that the Board of Trustees may from time to time
determine are directly attributable to such Subseries D Units, and (3) such
other expenses, costs, charges and reserves as the Board of Trustees may from
time to time determine are directly attributable to such Subseries D Units and
which should therefore be borne solely by such Units;
The expenses and liabilities set forth in subparagraphs (i), (ii),
(iii) and (iv) are sometimes referred to collectively as "special Subseries
liabilities" and individually as a "special Subseries liability";
(b) Dividends. Dividends and distributions on Units of a particular
Subseries of an Additional Series may be paid to the holders of Units of that
Subseries after providing for any actual and accrued liabilities belonging to
that Series and any special Subseries liability with respect to that Subseries.
To the extent that the Trustees determine to pay such a dividend or distribution
which provides for a special Subseries liability
with respect to a particular Subseries, it shall be distributed pro rata to the
holders of that Subseries in proportion to the number of Units of that Subseries
held by them at the date and time of record established for the payment of such
dividend or distribution, except that in connection with any dividends or
distribution program or procedure the Trustees may determine that no dividend or
distribution shall be payable on Units as to which the Unitholder's purchase
order and/or payment have not been received by the time or times established by
the Trustees under such program or procedure;
(c) Liquidation. In the event of liquidation or dissolution of the
Trust, the Unitholders of each Subseries of a particular Additional Series shall
be entitled to receive, as a Subseries, when as declared by the Trustees, the
excess of the assets belonging to that Additional Series over the liabilities
belonging to that Series and any special Subseries liabilities with respect to
that Subseries. The assets so distributable to the Unitholders of any particular
Subseries of an Additional Series shall be distributed among such Unitholders in
proportion to the number of Units of that Subseries held by them and recorded on
the books of the Trust;
(d) Voting. On each matter submitted to a vote of the Unitholders, each
holder of a Unit shall be entitled to one vote for each such Unit standing in
his name on the books of the Trust irrespective of the particular Series or
Subseries thereof and all Units of all Series and any Subseries thereof shall
vote as a single class ("Single Class Voting"); provided however, that (i) as to
any matter with respect to which a separate vote of any Series or Subseries of
an Additional Series is required by the 1940 Act or would be required under the
Massachusetts Business Corporation Law if the Trust were a Massachusetts
business corporation, such requirements as to a separate vote by that Series or
Subseries shall apply in lieu of Single Class Voting described above; (ii) in
the event that the separate vote requirements referred to in (i) above apply
with respect to one or more Series or Subseries, then, subject to (iii) below,
the Units of all other Series and any Subseries shall vote as a single class;
and (iii) as to any matter which does not affect the interest of all Unitholders
of a particular Additional Series thereof, only the Unitholders of the one or
more affected Subseries shall be entitled to vote;
(e) Redemption by Unitholder. Each holder of Units of a particular
Subseries of an Additional Series shall have the right at such times as may be
permitted by the Trust, but no less frequently than once each week, to require
the Trust to redeem all or any part of his Units of that Subseries at a
redemption price equal to the net asset value per Unit of that Subseries next
determined in accordance with paragraph (g) below after the Units are properly
tendered for redemption. Payment of the redemption price shall be in cash;
provided, however, that if the Trustees determine, which determination shall be
conclusive, that
conditions exist which make payment wholly in cash unwise or undesirable, the
Trust may make payment wholly or partly in securities or other assets belonging
to the Series of which the Units being redeemed are a part at the value of such
securities or assets used in determination of net asset value;
(f) Redemption by Trust. Each Unit of each Subseries of a particular
Additional Series is subject to redemption by the Trust at the redemption price
which would be applicable if such Unit was then being redeemed by the Unitholder
pursuant to paragraph (e) above at any time if the Trustees determine in their
sole discretion that failure to so redeem may have materially adverse
consequences to the holders of the Units, or any Series or Subseries of a
particular Additional Series thereof, of the Trust, and upon such redemption the
holders of the Units so redeemed shall have no further right with respect
thereto other than to receive payment of such redemption price. In addition, the
Trustees, in their sole discretion, may cause the Trust to redeem all of the
Units of one or more Subseries of an Additional Series held by (a) any
Unitholder if the value of such Units held by such Unitholder is less than the
minimum amount established from time to time by the Trustees or (b) all
Unitholders if the value of such Units held by all Unitholders is less than the
minimum amount established from time to time by the Trustees;
(g) Net Asset Value. The net asset value per Unit of a particular
Subseries of an Additional Series shall be the quotient obtained by dividing the
value of the net assets of that Subseries (being the assets belonging to that
Additional Series less the liabilities belonging to that Series and less any
special Subseries liabilities with respect to that Subseries) by the total
number of Units of that Subseries outstanding, all determined in accordance with
the methods and procedures, including without limitation those with respect to
rounding, established by the Trustees from time to time;
(h) Equality. All Units of each Subseries of an Additional Series shall
represent an equal proportionate interest in the assets belonging to that Series
(subject to the liabilities belonging to that Series and any special Subseries
liabilities with respect to that Subseries), and each Unit of any particular
Subseries of an Additional Series shall be equal to each other Unit of that
Subseries. The Trustees may from time to time divide or combine the Units of any
particular Subseries of an Additional Series into a greater or lesser number of
Units of that Subseries without thereby changing the proportionate beneficial
interest in the assets belong to that Subseries or in any way affecting the
rights of Units of any other Series or Subseries; and
(3) determines that pursuant to Section 7.3 of the Declaration the
foregoing amendments shall be effective upon the execution of a certificate by a
Trustee or Officer of the Trust to the effect that the said amendments have been
adopted.
WITNESS our hands this __________day of __________
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxx, III
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Xxxxxxx X. Xxxxxx, III
/s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxx X. Xxxx
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