Meetings of the Board (a) The Board shall hold a regularly scheduled meeting at least once every calendar quarter at such place, date and time as the Board may designate. Special meetings of the Board may be called at any time by the Chairman. Special meetings of the Board shall be called at any time by the Chairman upon the written request of at least one Director to the Chairman, specifying the matters to be discussed.
(b) Notice of any meeting of the Board or any committee thereof stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given to each Director by telephone, electronic mail or facsimile no less than seven days before the date of the meeting; provided, that the Chairman may reduce the advance notice period for any special meeting to no less than two days if the Chairman determines, acting reasonably and in good faith, that it is necessary or desirable to take action within a time period of less than seven days; and provided, further, that for the avoidance of doubt, if notice of any meeting of the Board is not given in accordance with this Section 5.03(b), then no business may be transacted at such meeting. Notice of any meeting may be waived by any Director on behalf of such Director. Presence at a meeting of the Board by a Director shall constitute waiver of any deficiency of notice of such meeting by such Director, unless such Director objects, at the beginning of the meeting, to the transaction of any business at such meeting because such meeting was not called or convened in accordance with this Agreement.
(c) The secretary of the Company (the “Secretary”) shall circulate to each Director an agenda for each meeting of the Board not less than four days in advance of such meeting, or no less than two days in advance of any special meeting, if the Chairman has exercised his or her right pursuant to Section 5.03(b) to reduce the notice required for such meeting to no less than two days. Such agenda shall include any matters that any Director may reasonably request be included on such agenda.
(d) The presence in person or by proxy of a number of Directors equal to a majority of the total number of Directors on the Board at such time shall constitute a quorum for the conduct of business at any meeting of the Board, provided, that such quorum consists of not less than two MCK Directors and two Echo Directors. If a quorum is not present at any meeting of the Board, no business may be conducted at such meeting (the “Original Meeting”), and the Directors present shall adjourn the meeting and promptly give notice of when it will be reconvened, which shall not be more than thirty (30) days from the date of the meeting (the “Adjourned Meeting”). If a quorum is not present at the Adjourned Meeting and the sole reason for such lack of quorum was the absence of the Nominee Directors of the same party whose Nominee Directors’ absence was the sole cause of the Original Meeting being adjourned, then the Directors present at such Adjourned Meeting shall constitute a valid quorum.
(e) Directors may participate in any meeting of the Board or any committee thereof by means of a conference telephone or similar communications equipment by means of which all Directors participating in such meeting may hear one another. Participation in any meeting of the Board pursuant to this Section 5.03(e) shall constitute presence in person at such meeting for purposes of Section 5.03(d) and shall constitute a waiver of any deficiency of notice of such meeting, unless such Director objects, at the beginning of the meeting, to the transaction of any business at such meeting because such meeting was not called or convened in accordance with this Agreement.
(f) Each Director shall be entitled to cast one vote with respect to each matter brought before the Board (or any committee thereof of which such Director is a member) for approval. Except as otherwise expressly provided by this Agreement, the affirmative vote of Directors entitled to cast a majority of the votes that may be cast by the Directors in attendance at any meeting at which a quorum is present (whether in person or by proxy) shall be required to authorize any action by the Board and shall constitute the action of the Board for all purposes. No Director shall be disqualified from voting on any matter as to which the Member that designated such Director or any of its Affiliates may have an interest. Subject to Section 6.02(b), notwithstanding any duty otherwise existing at Law or in equity, to the fullest extent permitted by Law, no Director shall have any duty to disclose to the Company or the Board confidential information of the Member that designated such Director or any of its Affiliates in such Director’s possession, even if such information is material and relevant to the Company and/or the Board, and in any case, such Director shall not be liable to the Company or the other Members or their respective Affiliates for breach of any duty (including the duty of loyalty or any other fiduciary duty) as a Director by reason of not disclosing such confidential information; provided, that the foregoing shall not limit the Chief Executive Officer’s or any other employee of the Company or its Subsidiaries who is a Director’s responsibility to disclose to the Board information regarding the Company and its Subsidiaries obtained as a result of the Chief Executive Officer or such employee serving in such capacity.
(g) The Secretary or, if he or she is not present, any individual whom the Chairman may appoint, shall keep minutes of each meeting of the Board, which shall reflect all actions taken by the Board thereat.
(h) The Board may establish other provisions and procedures relating to the governance of its meetings that are not in conflict with the terms of this Agreement.
(i) Each Director shall be entitled to receive all information (including without limitation, board minutes, board books and financial reports) that is made available to any Director in such Person’s capacity as such.
Agreements of the Parties (a) If the registration statement relating to the Shares has not yet become effective, the Trust will promptly file the Final Amendment, if not previously filed, with the Commission, and will use its best efforts to cause such registration statement to become effective and, as soon as the Trust is advised, will advise the Representative when the Registration Statement or any amendment thereto has become effective. If the Registration Statement has become effective and the Prospectus contained therein omits certain information at the time of effectiveness pursuant to Rule 430A of the Securities Act Rules, the Trust will file a 430A Prospectus pursuant to Rule 497(h) of the Securities Act Rules as promptly as practicable, but no later than the second business day following the earlier of the date of the determination of the offering price of the Shares or the date the Prospectus is first used after the Effective Date. If the Registration Statement has become effective and the Prospectus contained therein does not so omit such information, the Trust will file a Prospectus pursuant to Rule 497(b) or (j) of the Securities Act Rules as promptly as practicable, but no later than the fifth business day following the date of the later of the Effective Date or the commencement of the public offering of the Shares after the Effective Date. In either case, the Trust will provide the Representatives satisfactory evidence of the filing. The Trust will not file with the Commission any Prospectus or any other amendment (except any post-effective amendment which is filed with the Commission 15 after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which distribution of the Shares is completed) or supplement to the Registration Statement or the Prospectus unless a copy has first been submitted to the Managing Representative a reasonable time before its filing and the Managing Representative has not objected to it in writing within a reasonable time after receiving the copy.
(b) For the period of three years from the date hereof, the Trust will advise the Representatives promptly (1) of the issuance by the Commission of any order in respect of the Trust or the Investment Adviser which relates to the Trust, or which relates to any material arrangements or proposed material arrangements involving the Trust or the Investment Adviser, (2) of the initiation or threatening of any proceedings for, or receipt by the Trust of any notice with respect to, the suspension of the qualification of the Shares for sale in any jurisdiction or the issuance of any order by the Commission suspending the effectiveness of the Registration Statement, (3) of receipt by the Trust, or any representative or attorney of the Trust, of any other communication from the Commission relating in any material way to the Trust, the Registration Statement, the Notification, any Preliminary Prospectus, the Prospectus or to the transactions contemplated by this Underwriting Agreement and (4) the issuance by any court, regulatory body, administrative agency or other governmental agency or body, whether foreign or domestic, of any order, ruling or decree, or the threat to initiate any proceedings with respect thereto, regarding the Trust, which relates in any material way to the Trust or any material arrangements or proposed material arrangements involving the Trust. The Trust will make every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement and, if any such order is issued, to obtain its lifting as soon as possible.
(c) If not delivered prior to the date of this Underwriting Agreement, the Trust will deliver to the Representatives, without charge, a signed copy of the registration statement and the Notification and of any amendments (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) to either the Registration Statement or the Notification (including all exhibits filed with any such document) and as many conformed copies of the registration statement and any amendments thereto (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) (excluding exhibits) as the Representatives may reasonably request. 16
(d) During such period as a prospectus is required by law to be delivered by an underwriter or a dealer, the Trust will deliver, without charge, to the Representatives, the Underwriters and any dealers, at such office or offices as the Representatives may designate, as many copies of the Prospectus as the Representatives may reasonably request, and, if any event occurs during such period as a result of which it is necessary to amend or supplement the Prospectus, in order to make the statements therein, in light of the circumstances existing when such Prospectus is delivered to a purchaser of Shares, not misleading in any material respect, or if during such period it is necessary to amend or supplement the Prospectus to comply with the Securities Act, the Investment Company Act, the Securities Act Rules or the Investment Company Act Rules, the Trust promptly will prepare, submit to the Managing Representative, file with the Commission and deliver, without charge, to the Underwriters and to dealers (whose names and addresses the Representatives will furnish to the Trust) to whom Shares may have been sold by the Underwriters, and to other dealers on request, amendments or supplements to the Prospectus so that the statements in such Prospectus, as so amended or supplemented, will not, in light of the circumstances existing when such Prospectus is delivered to a purchaser, be misleading in any material respect and will comply with the Securities Act, the Investment Company Act, the Securities Act Rules and the Investment Company Act Rules. Delivery by the Underwriters of any such amendments or supplements to the Prospectus will not constitute a waiver of any of the conditions in Section 6 hereof.
(e) The Trust will make generally available to holders of the Trust's securities, as soon as practicable but in no event later than the last day of the 18th full calendar month following the calendar quarter in which the Effective Date falls, an earnings statement, if applicable, satisfying the provisions of Section 11(a) of the Securities Act and, at the option of the Trust, Rule 158 of the Securities Act Rules.
(f) The Trust will take such actions as the Representatives reasonably request in order to qualify the Shares for offer and sale under the securities or "blue sky" laws of such jurisdictions as the Representatives reasonably designate; provided that the Trust shall not be required in connection therewith or as a condition thereof to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction.
(g) If the transactions contemplated by this Underwriting Agreement are consummated, the Trust shall pay all costs and expenses incident to 17 the performance of the obligations of the Trust under this Underwriting Agreement (to the extent such expenses do not, in the aggregate, exceed $0.03 per Share), including but not limited to costs and expenses of or relating to
(1) the preparation, printing and filing of the registration statement and exhibits to it, each Preliminary Prospectus, the Prospectus and all amendments and supplements thereto, (2) the issuance of the Shares and the preparation and delivery of certificates for the Shares, (3) the registration or qualification of the Shares for offer and sale under the securities or "blue sky" laws of the jurisdictions referred to in the foregoing paragraph, including the fees and disbursements of counsel for the Underwriters in that connection, and the preparation and printing of preliminary and supplemental "blue sky" memoranda, (4) the furnishing (including costs of design, production, shipping and mailing) to the Underwriters and dealers of copies of each Preliminary Prospectus relating to the Shares, the sales materials, the Prospectus, and all amendments or supplements to the Prospectus, and of the other documents required by this Section to be so furnished, (5) the filing requirements of the National Association of Securities Dealers, Inc., in connection with its review of the financing, including filing fees and the fees, disbursements and other charges of counsel for the Underwriters in that connection, (6) all transfer taxes, if any, with respect to the sale and delivery of the Shares to the Underwriters, (7) the listing of the Shares on the New York Stock Exchange, (8) the transfer agent for the Shares, and (9) in addition to the foregoing, an aggregate reimbursement of up to [ ] as partial reimbursement of the costs and expenses of the Underwriters. To the extent the foregoing costs and expenses incident to the performance of the obligations of the Trust under this Underwriting Agreement exceed, in the aggregate, $0.03 per Share, Eatox Xxxxx xx an affiliate will pay all such excess costs and expenses.
(h) If the transactions contemplated by this Underwriting Agreement are not consummated, except as otherwise provided herein, no party will be under any liability to any other party, except that (1) if this Underwriting Agreement is terminated by (x) the Trust or the Investment Adviser pursuant to any of the provisions hereof (otherwise than pursuant to Section 8 hereof) or (y) by the Representatives or the Underwriters because of any inability, failure or refusal on the part of the Trust or the Investment Adviser to comply with any material terms or because any of the conditions in Section 6 are not satisfied, Eatox Xxxxx xx an affiliate and the Trust, jointly and severally, will reimburse the Underwriters for all out-of-pocket expenses (including the reasonable fees, disbursements and other charges of their counsel) reasonably incurred by them in connection with the proposed purchase and sale of the Shares and (2) no Underwriter who has failed or refused to purchase the Shares agreed to be purchased by it under this Underwriting Agreement, in breach of its obli- 18 gations pursuant to this Underwriting Agreement, will be relieved of liability to the Trust and the Investment Adviser and the other Underwriters for damages occasioned by its default.
(i) Without the prior written consent of the Representatives, the Trust will not offer, sell or register with the Commission, or announce an offering of, any equity securities of the Trust, within 180 days after the Effective Date, except for the Shares as described in the Prospectus and any issuances of Shares of Beneficial Interest pursuant to the dividend reinvestment plan established by the Trust and except in connection with any offering of preferred shares of beneficial interest as contemplated by the Prospectus.
(j) The Trust will use its best efforts to list the Shares on the New York Stock Exchange and comply with the rules and regulations of such exchange.
(k) The Trust will direct the investment of the net proceeds of the offering of the Shares in such a manner as to comply with the investment objective and policies of the Trust as described in the Prospectus.
