VOTING AGREEMENT
Exhibit
23H
This
Voting Agreement (the “Voting Agreement”) is
made as of this 14th day of March, 2008, by and among The Blue Fund Group, a
Massachusetts business trust (the “Company”) on behalf of The Blue Large Cap
Fund (the “Fund”) and the Mai 2006 GST Exempt Family Trust (the “Mai
Trust”).
WHEREAS,
the Mai Trust intends to purchase, or has purchased, certain shares of the Fund;
and
WHEREAS,
the parties desire to enter into this Voting Agreement in order to, among other
things, set forth their understanding with respect to the voting of the shares
of the Fund by the Mai Trust;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and for
other valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. Voting of
Shares. On all matters which may come before the shareholders
of the Fund, the Mai Trust hereby agrees to vote all shares of the Fund owned by
it in the same proportion as the vote of all other holders of shares of the
Fund.
2. No Undue
Influence. The Mai Trust, and any person controlling,
controlled by, or under common control with the Mai Trust (each, a “Mai Trust
Affiliate”) will not cause any investment by the Mai Trust in shares of the Fund
to influence the terms of any services or transactions between the Mai Trust or
a Mai Trust Affiliate and the Fund or its investment adviser.
3. Specific
Performance. In addition to
any and all other remedies that may be available at law in the event of any
breach of this Voting Agreement, the Company shall be entitled to specific
performance of the agreements and obligations of the Mai Trust hereunder and to
such other injunctive or other equitable relief as may be granted by a court of
competent jurisdiction.
4. Successors
and Assigns. This Voting
Agreement shall be binding upon the personal representatives, successors, and
permitted assigns of the parties hereto.
5. Governing
Law. This Voting
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws principles, and the
applicable provisions of the Investment Company Act of 1940, as amended (the
“1940 Act”). To the extent that the laws of the State of New York
conflict with the applicable provisions of the 1940 Act, the applicable
provisions of the 1940 Act shall control.
6. Assignment. Neither this
Voting Agreement nor any rights which may accrue to the Company and/or the Mai
Trust hereunder may be transferred or assigned without the prior written consent
of the other party hereto.
7. Counterparts. This Voting
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if the
signature were an original, not a facsimile signature.
8. Headings. The headings of
this Voting Agreement are for convenience of reference and shall not form part
of, or affect the interpretation of, this Voting Agreement.
9. Severability. If any provision
of this Voting Agreement shall be invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall not affect the validity or
enforceability of the remainder of this Voting Agreement in that jurisdiction or
the validity or enforceability of any provision of this Voting Agreement in any
other jurisdiction. With respect to any such provision so determined
to be invalid or unenforceable, any court with jurisdiction over the parties and
subject matter hereof shall have all necessary authority to rewrite such
provision in order to provide for the enforceability thereof to the maximum
extent permissible under law, and the parties hereto agree to abide by such
court’s determination.
10. Notices. Any notices,
consents, waivers or other communications required or permitted to be given
under the terms of this Voting Agreement must be in writing, must be delivered
by (i) courier, mail or hand delivery, (ii) facsimile or (iii) a nationally
recognized overnight delivery service, and will be deemed to have been delivered
upon receipt. The addresses and facsimile numbers for such communications shall
be:
If
to the Company:
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The
Blue Fund Group
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000
Xxxxxxx Xxxxxx
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00xx
Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention: Xxxxxxx
(Xxxx) Xxxx
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With
a copy to (which shall not constitute notice):
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Xxx
Xxxxxx LLP
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Xxx
Xxxxxxxxxxxxx Xxxxx
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Xxxxxx,
Xxxxxxxxxxxxx 00000
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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Attention: Xxxxxxx
X. Xxxxxxx, Esq.
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2
If to the Mai Trust: | ||
Mai
2006 GST Exempt Family Trust
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x/x
Xxxxxxxxx, Xxxxxx, Xxxxx & Xxxxx, X.X.
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000
Xxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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Attention:
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Xxx
Xxxxxx
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Each
party shall provide five days prior written notice to the other party of any
change in address, telephone number or facsimile number.
11. No Third
Party Beneficiaries.
This Voting Agreement is intended for the benefit of the parties hereto
and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other
person.
12. Further
Assurances. Each party shall
do and perform, or cause to be done and performed, all such further acts and
things, and shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Voting Agreement and
the consummation of the transactions contemplated hereby.
13. Entire
Agreement. This Voting Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersede all prior agreements and understandings, both written and oral,
with respect to the subject matter hereof.
14. Amendments. This
Voting Agreement may be amended only by an instrument in writing signed by or on
behalf of each of the parties hereto.
15. Disclaimer
of Liability. A copy of the
Agreement and Declaration of Trust of the Company is on file with the Secretary
of The Commonwealth of Massachusetts, and notice is hereby given that this
instrument is executed on behalf of the Board of Trustees of the Trust by an
authorized officer and not individually and that the obligations of this
instrument are not binding upon any of the Trustees or shareholders individually
but are binding upon the assets and property of the Company; provided, however,
that the Agreement and Declaration of Trust of the Company provides that the
assets of a particular series of the Company shall under no circumstances be
charged with liabilities attributable to any other series of the Company and
that all persons extending credit to, or contracting with or having any claim
against a particular series of the Company shall look only to the assets of that
particular series for payment of such credit, contract or claim.
[Signature
Page Follows]
3
IN WITNESS WHEREOF, the parties hereto
have executed and delivered this Purchase Agreement by their duly authorized
representatives as of the date first mentioned above.
THE
BLUE FUND GROUP
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By: /s/ Xxxx Xxxx | |||
Name:
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Xxxx
Xxxx
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Title:
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CEO
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MAI
2006 GST EXEMPT FAMILY TRUST
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By: /s/ Xxxxx Xxxxxxxxxx | |||
Name:
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Xxxxx
Xxxxxxxxxx
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Title:
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Investment
Manager
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