Exhibit (e)(iii) under Form N-1A
Exhibit 6 under Item 601/Reg.S-K
SALES AGREEMENT WITH EDGEWOOD SERVICES, INC.
This Agreement is entered into between the financial institution executing
this Agreement ("Financial Institution") and Edgewood Services, Inc. ("ESI") for
WesMark Funds, Inc. (the "Trust"), which may be offered in one or more series
(the "Funds") and classes (the "Classes") of shares ("Shares"), for which ESI
serves as Distributor of shares of beneficial interest or capital stock. The
Funds or Classes to which this Agreement applies are set forth in Schedule A
hereto.
1. STATUS OF FINANCIAL INSTITUTION AS "BANK" OR REGISTERED BROKER-DEALER.
---------------------------------------------------------------------
The Financial Institution represents and warrants to ESI that:
(a) It is either a "bank" as that term is defined in Section 3(a)(6)
of the Securities Exchange Act of 1934 ("Exchange Act") or a
broker-dealer registered with the Securities and Exchange
Commission.
(b) If the Financial Institution is a "bank", it is a duly organized
and validly existing bank in good standing under the laws of the
jurisdiction in which it is organized. The Financial Institution
agrees to give written notice to ESI promptly in the event that it
shall cease to be a "bank" as defined in Section 3(a)(6) of the
Exchange Act. In that event, this Agreement shall be automatically
terminated upon such written notice.
(c) If the Financial Institution is a registered broker-dealer, it is a
member of the NASD and it agrees to abide by all of the rules and
regulations of the NASD including, without limitation, the NASD Rules
of Fair Practice. The Financial Institution agrees to notify ESI
immediately in the event of (1) its expulsion or suspension from the
NASD, or (2) its being found to have violated any applicable federal
or state law, rule or regulation arising out of its activities as a
broker-dealer or in connection with this Agreement, or which may
otherwise affect in any material way its ability to act in accordance
with the terms of this Agreement. The Financial Institution's
expulsion from the NASD will automatically terminate this Agreement
immediately without notice. Suspension of the Financial Institution
from the NASD for violation of any applicable federal or state law,
rule or regulation will terminate this Agreement effective immediately
upon ESI's written notice of termination to the Financial Institution.
2. FINANCIAL INSTITUTION ACTS AS AGENT FOR ITS CUSTOMERS.
-----------------------------------------------------
The parties agree that in each transaction in the Shares of the Trust: (a)
the Financial Institution is acting as agent for the customer; (b) each
transaction is initiated solely upon the order of the customer; (c) as between
the Financial Institution and its customer, the customer will have full
beneficial ownership of all Shares of the Trust to which this Agreement applies;
(d) each transaction shall be for the account of the customer and not for the
Financial Institution's account; and (e) each transaction shall be without
recourse to the Financial Institution provided that the Financial Institution
acts in accordance with the terms of this Agreement. The Financial Institution
shall not have any authority in any transaction to act as ESI's agent or as
agent for the Trust.
3. EXECUTION OF ORDERS FOR PURCHASE AND REDEMPTION OF SHARES.
---------------------------------------------------------
(a) All orders for the purchase of any Shares shall be executed at the
then current public offering price per share (i.e., the net asset
value per share plus the applicable sales load, if any) and all orders
for the redemption of any Shares shall be executed at the net asset
value per share, plus any applicable redemption charge, in each case
as described in the prospectus of the Fund or Class. ESI and the Trust
reserve the right to reject any purchase request at their sole
discretion. If required by law, each transaction shall be confirmed in
writing on a fully disclosed basis and, if confirmed by ESI, a copy of
each confirmation shall be sent simultaneously to the Financial
Institution if the Financial Institution so requests.
(b) The procedures relating to all orders and the handling of them
will be subject to the terms of the prospectus of each Fund or
Class and ESI's written instructions to the Financial Institution
from time to time.
(c) Payments for Shares shall be made as specified in the applicable
Fund or Class prospectus. If payment for any purchase order is not
received in accordance with the terms of the applicable Fund or
Class prospectus, ESI reserves the right, without notice, to
cancel the sale and to hold the Financial Institution responsible
for any loss sustained as a result thereof.
(d) The Financial Institution agrees to provide such security as is
necessary to prevent any unauthorized use of the Trust's
recordkeeping system, accessed via any computer hardware or
software provided to the Financial Institution by ESI.
4. FEES PAYABLE TO THE FINANCIAL INSTITUTION FROM SALES LOADS.
----------------------------------------------------------
(a) On each order accepted by ESI, in exchange for the performance of
sales and/or administrative services, the Financial Institution
will be entitled to receive from the amount paid by the Financial
Institution's customer the applicable percentage of the sales
load, if any, as established by ESI. The sales loads for any Fund
or Class shall be those set forth in its prospectus. The portion
of the sales load payable to the Financial Institution may be
changed at any time at ESI's sole discretion upon thirty (30)
days' written notice to the Financial Institution.
(b) Transactions may be settled by the Financial Institution: (1) by
payment of the full purchase price to ESI less an amount equal to
the Financial Institution's applicable percentage of the sales
load, or (2) by payment of the full purchase price to ESI, in
which case ESI shall pay to the Financial Institution, not less
frequently than monthly, the aggregate fees due it on orders
received and settled.
5. DELIVERY OF PROSPECTUSES TO CUSTOMERS.
-------------------------------------
The Financial Institution will deliver or cause to be delivered to each
customer, at or prior to the time of any purchase of Shares, a copy of the
prospectus of the Fund or Class. The Financial Institution shall not make any
representations concerning any Shares other than those contained in the
prospectus of the Fund or Class or in any promotional materials or sales
literature furnished to the Financial Institution by ESI or the Fund or Class.
6. INDEMNIFICATION.
---------------
(a) The Financial Institution shall indemnify and hold harmless ESI, the
Trust, the transfer agents of the Trust, and their respective
subsidiaries, affiliates, officers, directors, agents and employees
from all direct or indirect liabilities, losses or costs (including
attorneys fees) arising from, related to or otherwise connected with:
(1) any breach by the Financial Institution of any provision of this
Agreement; or (2) any actions or omissions of ESI, the Trust, the
transfer agents of the Trust, and their subsidiaries, affiliates,
officers, directors, agents and employees in reliance upon any oral,
written or computer or electronically transmitted instructions
believed to be genuine and to have been given by or on behalf of the
Financial Institution.
(b) ESI shall indemnify and hold harmless the Financial Institution
and its subsidiaries, affiliates, officers, directors, agents and
employees from and against any and all direct or indirect
liabilities, losses or costs (including attorneys fees) arising
from, related to or otherwise connected with: (1) any breach by
ESI of any provision of this Agreement; or (2) any alleged untrue
statement of a material fact contained in the Trust's Registration
Statement or Prospectuses, or as a result of or based upon any
alleged omission to state a material fact required to be stated,
or necessary to make the statements not misleading.
(c) The agreement of the parties in this Paragraph to indemnify each other
is conditioned upon the party entitled to indemnification (Indemnified
Party) giving notice to the party required to provide indemnification
(Indemnifying Party) promptly after the summons or other first legal
process for any claim as to which indemnity may be sought is served on
the Indemnified Party. The Indemnified Party shall permit the
Indemnifying Party to assume the defense of any such claim or any
litigation resulting from it, provided that counsel for the
Indemnifying Party who shall conduct the defense of such claim or
litigation shall be approved by the Indemnified Party (which approval
shall not unreasonably be withheld), and that the Indemnified Party
may participate in such defense at its expense. The failure of the
Indemnified Party to give notice as provided in this subparagraph (c)
shall not relieve the Indemnifying Party from any liability other than
its indemnity obligation under this Paragraph. No Indemnifying Party,
in the defense of any such claim or litigation, shall, without the
consent of the Indemnified Party, consent to entry of any judgment or
enter into any settlement that does not include as an unconditional
term the giving by the claimant or plaintiff to the Indemnified Party
of a release from all liability in respect to such claim or
litigation.
(d) The provisions of this Paragraph 7 shall survive the termination of
this Agreement.
7. CUSTOMER NAMES PROPRIETARY TO THE FINANCIAL INSTITUTION.
-------------------------------------------------------
(a) The names of the Financial Institution's customers are and shall
remain the Financial Institution's sole property and shall not be
used by ESI or its affiliates for any purpose except the
performance of its duties and responsibilities under this
Agreement and except for servicing and informational mailings
relating to the Trust. Notwithstanding the foregoing, this
Paragraph 7 shall not prohibit ESI or any of its affiliates from
utilizing the names of the Financial Institution's customers for
any purpose if the names are obtained in any manner other than
from the Financial Institution pursuant to this Agreement.
(b) Neither party shall use the name of the other party in any manner
without the other party's written consent, except as required by
any applicable federal or state law, rule or regulation, and
except pursuant to any mutually agreed upon promotional programs.
(c) The provisions of this Paragraph 7 shall survive the termination of
this Agreement.
8. SOLICITATION OF PROXIES.
-----------------------
The Financial Institution agrees not to solicit or cause to be solicited
directly, or indirectly, at any time in the future, any proxies from the
shareholders of the Trust in opposition to proxies solicited by management of
the Trust, unless a court of competent jurisdiction shall have determined that
the conduct of a majority of the Board of Trustees of the Trust constitutes
willful misfeasance, bad faith, gross negligence or reckless disregard of their
duties. This Paragraph 8 will survive the term of this Agreement.
9. CERTIFICATION OF CUSTOMERS' TAXPAYER IDENTIFICATION NUMBERS.
-----------------------------------------------------------
The Financial Institution agrees to obtain any taxpayer identification
number certification from its customers required under Section 3406 of the
Internal Revenue Code, and any applicable Treasury regulations, and to provide
ESI or its designee with timely written notice of any failure to obtain such
taxpayer identification number certification in order to enable the
implementation of any required backup withholding.
10. NOTICES.
-------
Except as otherwise specifically provided in this Agreement, all notices
required or permitted to be given pursuant to this Agreement shall be given in
writing and delivered by personal delivery or by postage prepaid, registered or
certified United States first class mail, return receipt requested, or by telex,
telegram or similar means of same day delivery (with a confirming copy by mail
as provided herein). Unless otherwise notified in writing, all notices to ESI
shall be given or sent to ESI at its offices located at Federated Xxxxxxxxx
Xxxxx, Xxxxxxxxxx, XX 00000-0000, and all notices to the Financial Institution
shall be given or sent to it at its address shown below.
11. TERMINATION AND AMENDMENT.
-------------------------
(a) This Agreement shall become effective in this form as of the date
set forth below and may be terminated at any time by either party
upon thirty (30) days' prior notice to the other party. This
Agreement supersedes any prior sales agreements between the
parties.
(b) This Agreement may be amended by ESI from time to time by the
following procedure. ESI will mail a copy of the amendment to the
Financial Institution's address, as shown below. If the Financial
Institution does not object to the amendment within thirty (30)
days after its receipt, the amendment will become part of the
Agreement. The Financial Institution's objection must be in
writing and be received by ESI within such thirty (30) days.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
13. GOVERNING LAW.
-------------
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania.
WESBANCO SECURITIES, INC.
FINANCIAL INSTITUTION
000 XXXXXX XXXXXX
Address
MARIETTA, OH 45750
City State Zip Code
Dated: OCTOBER 1, 1999 /S/ XXXXXX X. XXXX
-------------------------------------- ------------------
Authorized Signature
PRESIDENT
Title
XXXXXX X. XXXX
Print Name or Type Name
EDGEWOOD SERVICES, INC.
Federated Investors Tower
Pittsburgh, Pennsylvania 15222-3779
By: /S/ XXXXXXXX XXXXXXXXXX
Name: Xxxxxxxx Xxxxxxxxxx
Title: President
SCHEDULE A
FOR SALES AGREEMENT WITH
EDGEWOOD SERVICES, INC.
September 15, 1999
WESMARK FUNDS
WesMark Growth Fund
WesMark Balanced Fund
WesMark Bond Fund
WesMark West Virginia Municipal Income Fund
