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Exhibit 1.1
Zions
Bancorporation
Medium-Term Notes, Series
A
Distribution
Agreement
March 31,
2008
Zions Direct, Inc.
One South Main Street
17 th Floor
Salt Lake City, Utah 84111
Ladies and Gentlemen:
Zions Bancorporation, a Utah
corporation (the “ Company ”), proposes to issue
from time to time certain Medium-Term Notes, Series A (the “
Securities ”) (in an indeterminate amount that will
not exceed a maximum aggregate principal amount of $500,000,000
outstanding at any given time, unless such limitation is
subsequently modified by the Company’s board of directors)
and agrees with you (the “ Agent ”) as set forth
in this Distribution Agreement (the “ Agreement
”). Each of the terms “the Agents”, “such
Agent”, “any Agent”, “an Agent”,
“each Agent”, “the Purchasing Agent” and
“the Selling Agent”, when used in this Agreement or in
any Terms Agreement (as defined below) or in the Annexes hereto,
shall mean Zions Direct, Inc., except at any time when more Agents
are acting as such hereunder, as contemplated in Section 11
hereof.
The Company acknowledges and
agrees that Zions Direct, Inc. may use the Prospectus (as defined
below) in connection with offers and sales of the Securities as
contemplated in the Prospectus under the caption
“Supplemental Plan of Distribution—Market Making
Resales by Affiliates” (“ Secondary Market
Transactions ”). The Company further acknowledges and
agrees that Zions Direct, Inc. is under no obligation to effect any
Secondary Market Transactions and, if it does so, it may
discontinue effecting such transactions at any time without
providing any notice to the Company. The term “Agent”,
whenever used in this Agreement, shall include Zions Direct, Inc.
whether acting in its capacity as an Agent or acting in connection
with a Secondary Market Transaction, except as may be specifically
provided otherwise herein.
Subject to the terms and
conditions stated herein and to the reservation by the Company of
the right to issue Securities directly on its own behalf or through
one or more underwriters, the Company hereby (i) appoints each
Agent as an agent of the Company for the purpose of soliciting and
receiving offers to purchase Securities from the Company pursuant
to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to issue
Securities directly to any Agent as principal, it will enter into a
separate agreement (each such agreement, a “ Terms
Agreement ”), substantially in the form of Annex I hereto
or in such other form as may be agreed by the parties to that
particular agreement, relating to such issue in accordance with
Section 2(b) hereof. This Agreement shall not be construed to
create either an obligation on the part of the Company to issue any
Securities or an obligation of any of the Agents to purchase
Securities as principal.
The Securities will be issued
under the indenture, dated September 10, 2002 (the “
Indenture ”), between the Company and The Bank of New
York Trust Company, N.A., as successor to J.P. Morgan Trust
Company, National Association, as trustee (the “
Trustee ”), as amended or supplemented from time to
time. The Securities shall have the maturity ranges, interest
rates, if any, redemption provisions and other terms set forth in
the Prospectus referred to below as it may be amended or
supplemented from time to time. The Securities will be issued, and
the terms and rights thereof established, from time to time by the
Company in accordance with the Indenture.
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1. The Company represents and
warrants to, and agrees with, each Agent that:
(a) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “ Act
”), on Form S-3 (File No. 333-132868) in respect of the
Securities has been filed by the Company with the Securities and
Exchange Commission (the “ Commission ”) not
earlier than three years prior to the date hereof; such
registration statement, and any post-effective amendment thereto,
became effective on filing; no stop order suspending the
effectiveness of such registration statement or any part thereof
has been issued and no proceeding for that purpose has been
initiated or, to the knowledge of the Company, threatened by the
Commission, and no notice of objection of the Commission to the use
of such form of registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act has been
received by the Company (the base prospectus filed as part of such
registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the “ Base Prospectus
”; any preliminary prospectus (including any preliminary
prospectus supplement) relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act is hereinafter
called a “ Preliminary Prospectus ”; the various
parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and including any prospectus
supplement relating to the Securities that is filed with the
Commission and deemed by virtue of Rule 430B under the Act to be
part of such registration statement, each as amended at the time
such part of the registration statement became effective, are
hereinafter collectively called the “ Registration
Statement ”; the Base Prospectus (including the
prospectus supplement dated March 6, 2008, the prospectus
supplement dated March 31, 2008 and, if applicable, any other
prospectus supplement) relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 4(b) hereof is hereinafter called the “
Prospectus ”; any reference herein to the Base
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of such prospectus; any supplement to the
Prospectus that sets forth only the terms of a particular issue of
the Securities and is filed in accordance with Section 4(a)
hereof is hereinafter called a “ Pricing Supplement
”; any reference to any amendment or supplement to the Base
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the
Securities filed with the Commission pursuant to Rule 424(b) under
the Act and any documents filed under the Securities Exchange Act
of 1934, as amended (the “ Exchange Act ”), and
incorporated therein, in each case, after the date of the Base
Prospectus, such Preliminary Prospectus, or the Prospectus, as the
case may be; and any reference herein to the “Prospectus as
amended or supplemented”, other than in Section 1(c)(i)
hereof, shall be deemed to refer to and include the Prospectus as
amended or supplemented (including by the applicable Pricing
Supplement and any other prospectus supplement specifically
referred to in such Pricing Supplement) in relation to the
Securities to be issued pursuant to this Agreement, in the form
filed or transmitted for filing with the Commission pursuant to
Rule 424(b) under the Act and in accordance with Section 4(a)
hereof, including any documents incorporated by reference therein
as of the date of such filing);
(b) No order preventing or
suspending the use of the Prospectus, any Preliminary Prospectus or
any “issuer free writing prospectus” as defined in Rule
433 under the Act relating to the Securities (an “ Issuer
Free Writing Prospectus ”) has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the
“ Trust Indenture Act ”), and the rules and
regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however , that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Agent
expressly for use therein;
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(c) (i) With respect to any
issue of Securities to be issued pursuant to a Terms Agreement, the
“ Applicable Time ” will be such time on the
date of such Terms Agreement as is specified therein as the
Applicable Time, and the “ Pricing Disclosure Package
” will be the Prospectus as amended or supplemented at the
Applicable Time together with (A) the information referenced
in Schedule II(b) to such Terms Agreement and (B) such other
documents, if any, as may be listed in Schedule II(a) to such Terms
Agreement, taken together; (ii) with respect to each such
issue of Securities, the Pricing Disclosure Package, as of the
Applicable Time, will not include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they are made, not misleading; and (iii) with
respect to each such issue of Securities, each Issuer Free Writing
Prospectus listed in Schedule II(a) to the applicable Terms
Agreement, if any, will not conflict with the information contained
in the Registration Statement, the Prospectus or the Prospectus as
amended or supplemented and, taken together with the Pricing
Disclosure Package as of the Applicable Time, will not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not
misleading; provided, however , that the representations and
warranties in clauses (ii) and (iii) of this
Section 1(c) shall not apply to statements or omissions made
in any Pricing Disclosure Package or Issuer Free Writing Prospectus
in reliance upon and in conformity with information furnished in
writing to the Company by any Agent expressly for use
therein;
(d) The documents
incorporated by reference in any Pricing Supplement or the
Prospectus as amended or supplemented when they became effective or
were filed with the Commission, as the case may be, conformed in
all material respects to the applicable requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents, when they
became effective or were filed with the Commission, as the case may
be, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the applicable
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however , that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Agent
expressly for use therein; and the financial statements of the
Company and its consolidated subsidiaries incorporated by reference
in the Registration Statement, any Pricing Supplement and the
Prospectus as amended or supplemented, together with the related
schedules and notes, present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries
at the dates indicated and the results of operations and cash flows
for the periods shown in such financial statements and, except as
otherwise disclosed in the Registration Statement, any Pricing
Supplement and the Prospectus as amended or supplemented, such
financial statements have been prepared in conformity with
generally accepted accounting principles (“ GAAP
”) in the United States applied on a consistent
basis;
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(e) The Registration
Statement and the Prospectus conform, and any further amendments or
supplements to the Registration Statement or the Prospectus will
conform, in all material respects, to the requirements of the Act
and the Trust Indenture Act, as applicable, and the rules and
regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to each part of the
Registration Statement and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however , that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Agent
expressly for use therein;
(f) Neither the Company nor
any of its subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference
in the Prospectus as amended or supplemented any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented; and, since the respective dates as of which
information is given in the Registration Statement and the
Prospectus as amended or supplemented, there has not been any
change in the capital stock (other than (i) repurchases of
common stock of the Company in an aggregate amount that is less
than 2% of the number of outstanding shares of common stock on the
date hereof and (ii) issuances of or other transfers of
capital stock in the ordinary course of business pursuant to the
Company’s employee benefit plans or awards issued thereunder)
or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries,
otherwise than as disclosed, set forth or contemplated in the
Prospectus as amended or supplemented;
(g) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus
as amended or supplemented;
(h) The Company has an
authorized capitalization as set forth in the Prospectus as amended
or supplemented, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and
are fully paid and non-assessable;
(i) The form of Securities
has been duly and validly authorized and, when the Securities are
issued and delivered against payment therefor pursuant to this
Agreement and any Terms Agreement relating to such Securities, will
have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, under
which they are to be issued, which will be substantially in the
form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized and duly qualified under the
Trust Indenture Act and, when executed and delivered by the Company
and the Authentication Agent on behalf of the Trustee, will
constitute a valid and legally binding instrument of the Company,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and the
Indenture conforms, and the Securities will conform, to the
descriptions thereof set forth in the Prospectus as amended or
supplemented relating to such Securities;
(j) The issue and sale of the
Securities, the compliance by the Company with all of the
provisions of the Securities, the Indenture, and this Agreement,
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach
or
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violation of any of the terms
or provisions of, or constitute a default under, any indenture,
loan agreement or material mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the property or assets of
the Company is subject, nor will such action result in any
violation of the provisions of the Restated Articles of
Incorporation, as amended, or Restated Bylaws of the Company or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture,
except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Agents;
(k) The statements set forth
in the Prospectus under the captions “Supplemental
Description of Notes” and “Description of Debt
Securities We May Offer”, insofar as they purport to
constitute a summary of the terms of the Securities, and under the
captions “Supplemental Plan of Distribution” and
“Plan of Distribution”, insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(l) Neither the Company nor
any of its significant subsidiaries (as defined in Rule 1-02 of
Regulation S-X of the Commission) (each, a “ Significant
Subsidiary ”) is in violation of its charter or bylaws or
in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, loan agreement or material mortgage, deed of trust or
other agreement or instrument to which it is a party or by which it
or any of its properties may be bound;
(m) Other than as set forth
in the Prospectus as amended or supplemented, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which would, individually or
in the aggregate, have a material adverse effect on the current or
future consolidated financial position, shareholders’ equity
or results of operations of the Company and its subsidiaries; and,
to the best of the Company’s knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others;
(n) (i) (A) At the time
of filing of the Registration Statement, (B) at the time of
the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of prospectus)
and (C) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c)
under the Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 under the Act, the Company
was a “well-known seasoned issuer” as defined in Rule
405 under the Act; and (ii) at the earliest time after the
filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act) of the Securities, the Company was
not an “ineligible issuer” as defined in Rule 405 under
the Act;
(o) The Company is not and,
after giving effect to the offering and sale of the Securities,
will not be an “investment company”, as such term is
defined in the Investment Company Act of 1940, as amended (the
“ Investment Company Act ”);
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(p) Ernst & Young
LLP, who have certified certain financial statements of the Company
and its subsidiaries, and have audited the Company’s internal
control over financial reporting and management’s assessment
thereof, are independent public accountants as required by the Act
and the rules and regulations of the Commission
thereunder;
(q) The Company has been duly
qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so
as to require such qualification or is subject to no material
liability or disability by reason of the failure to be so qualified
in any such jurisdiction;
(r) The Company is a bank
holding company registered under the Bank Holding Company Act of
1956, as amended, and each of the Company’s banking
subsidiaries holds the requisite authority from its respective
banking regulatory authority to do business as a national banking
association under the laws of the United States or as a
state-chartered banking corporation under the laws of such
subsidiary’s jurisdiction of incorporation, as the case may
be;
(s) Each Significant
Subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, and all of the issued shares of
capital stock of each such Significant Subsidiary have been duly
and validly authorized and issued, are fully paid and
non-assessable, and (except for directors’ qualifying shares)
are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(t) As of the date hereof,
the Company maintains a system of internal control over
“financial reporting” (as such term is defined in Rule
13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the
Company’s principal executive officer and principal financial
officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with GAAP. The Company’s internal control over
financial reporting is effective and the Company is not aware of
any material weaknesses in its internal control over financial
reporting;
(u) Since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus as of the date hereof, there has been
no change in the Company’s internal control over financial
reporting that has materially adversely affected, or is reasonably
likely to materially adversely affect, the Company’s internal
control over financial reporting; and
(v) The Company maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements
of the Exchange Act; such disclosure controls and procedures have
been designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities, and such disclosure controls and
procedures are effective.
2. (a) On the basis of the
representations and warranties herein contained, and subject to the
terms and conditions herein set forth, each of the Agents hereby
severally and not jointly agrees, as agent of the Company, to use
its reasonable efforts to solicit and receive offers to purchase
the Securities to be issued by the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented
from time to time.
Procedural details relating
to the issue and delivery of Securities, the solicitation of offers
to purchase Securities and the payment in each case therefor shall
be as set forth in the Administrative Procedure attached hereto as
Annex II as it may be amended or supplemented
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from time to time by written
agreement between the Agents and the Company (the “
Administrative Procedure ”). The provisions of the
Administrative Procedure shall apply to all transactions
contemplated hereunder other than those made pursuant to a Terms
Agreement. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be
performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee and Zions First National Bank
(the “ Authenticating Agent ”) a copy of the
Administrative Procedure as in effect from time to time.
The Company reserves the
right, in its sole discretion, to suspend solicitation of offers to
purchase Securities from the Company commencing at any time for any
period of time or permanently. The Company shall be entitled to
suspend such solicitation as to any Agent or all of the Agents, as
determined by the Company. Upon receipt of instructions from the
Company, the relevant Agent or Agents shall suspend solicitation of
offers to purchase Securities until such time as the Company has
advised such Agent or Agents that such solicitation may be
resumed.
Unless otherwise agreed
pursuant to a Terms Agreement, the Company agrees to pay each Agent
a commission, at the time of settlement of any issue of a Security
by the Company as a result of a solicitation made by such Agent, in
an amount to be determined by mutual agreement between the Company
and such Agent, which shall not exceed the limits prescribed by the
Financial Industry Regulatory Authority (“ FINRA
”) and which shall otherwise be on terms customary for
transactions of the nature contemplated by any such Terms
Agreement.
(b) Each issue of Securities
by the Company to any Agent as principal shall be made in
accordance with the terms of this Agreement and (unless the Company
and such Agent shall otherwise agree) a Terms Agreement which will
provide for the issue of such Securities by the Company to, and the
purchase thereof by, such Agent; a Terms Agreement may also specify
certain provisions relating to the reoffering of such Securities by
such Agent; the commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise,
shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and
shall be subject to the terms and conditions herein set forth; each
Terms Agreement shall specify the principal amount of Securities to
be purchased by any Agent pursuant thereto, the purchase price to
be paid to the Company for such Securities, any provisions relating
to rights of, and default by, Agents acting together with such
Agent in the reoffering of the Securities and the time and date and
place of delivery of and payment for such Securities; such Terms
Agreement shall also specify any requirements for opinions of
counsel, accountants’ letters and officers’
certificates pursuant to Section 4 hereof, and such Terms
Agreement may also include such other provisions (including
provisions that modify this Agreement insofar as it sets forth the
agreement between the Company and such Agent) as the Company and
such Agent may agree upon. Unless otherwise agreed between the
Company and the relevant Agents, where more than one Agent has
agreed with the Company to purchase a particular issue of
Securities pursuant to this subsection, the obligations of such
Agents so to purchase such Securities shall be several and not
joint.
For each issue of Securities
by the Company to an Agent as principal that is not made pursuant
to a Terms Agreement, the procedural details relating to the issue
and delivery of such Securities and payment therefor shall be as
set forth in the Administrative Procedure. For each such issue of
Securities by the Company to an Agent as principal that is not made
pursuant to a Terms Agreement, the Company agrees to pay such Agent
a commission (or grant an equivalent discount), in an amount to be
determined by mutual agreement between the Company and such Agent,
which shall not exceed the limits prescribed by FINRA, and which
shall otherwise be on terms customary for transactions of the
nature contemplated by any such Terms Agreement.
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Each time and date of
delivery of and payment for Securities to be purchased by an Agent
as principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedure, is referred to herein
as a “ Time of Delivery ”.
(c) Nothing in this Agreement
shall be read or deemed to preclude the Company and one or more of
the Agents from modifying or supplementing this Agreement
(including the Administrative Procedure) insofar as it applies to
transactions between them without such modifications or
supplemental provisions being made of general applicability to
transactions between the Company and all of the Agents.
3. The Commencement Date (as
defined below) shall be the day prior to the date on which
solicitation of offers to purchase Securities is commenced or on
which any Terms Agreement is executed or at such other time and
date as may be agreed to by the Agents and the Company (such time
and date being referred to herein as the “ Commencement
Date ”).
4. The Company agrees with
each Agent:
(a) (i) to prepare, with
respect to any Securities to be issued by the Company through or to
such Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Securities in a form previously approved by such
Agent and to file such Pricing Supplement pursuant to Rule 424(b)
under the Act not later than the close of business of the
Commission on the fifth business day after the date on which such
Pricing Supplement is first used or at such earlier time as
required under Rule 424(b) under the Act;
(ii) with respect to any
issue of Securities to be issued pursuant to a Terms Agreement, but
only if requested by the Agents party to such Terms Agreement prior
to the Time of Sale (as defined below), to prepare a final term
sheet relating to such Securities in a form as may reasonably be
agreed to by the Agents party to such Terms Agreement and to file
such final term sheet pursuant to Rule 433(d) under the Act within
the time required by such rule;
(iii) to file promptly all
material required to be filed by the Company with the Commission
pursuant to Rule 433(d) under the Act;
(iv) to file promptly all
reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and so long as the
delivery of a prospectus (or, in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is required in connection with the
offering or sale of the Securities (including in any Secondary
Market Transactions during the Secondary Transactions Period (as
defined below)), and during such same period to advise the Agents,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or has
become effective or any supplement to the Prospectus or any amended
Prospectus (other than any Pricing Supplement that relates to
Securities not purchased through or by such Agent) has been filed
with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus in respect of the Securities, of any notice of objection
of the Commission to the use of the form of the Registration
Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act relating to the Securities, of the
suspension of the qualification of the Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the form of the
Registration Statement or the Prospectus or for additional
information; and
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(v) in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any such prospectus in respect of the Securities or
suspending any such qualification, to promptly use its reasonable
best efforts to obtain the withdrawal of such order; and in the
event of any such issuance of a notice of objection, promptly to
take such reasonable steps as may be necessary to permit offers and
sales of the Securities by the Agents, which may include, without
limitation, amending the Registration Statement or filing a new
registration statement, at the Company’s expense (references
herein to the Registration Statement shall include any such
amendment or new registration statement);
(b) If required by Rule
430B(h) under the Act, to prepare a form of prospectus in a form
approved by Zions Direct, Inc. and to file such form of prospectus
pursuant to Rule 424(b) under the Act not later than may be
required by Rule 424(b) under the Act; and to make no amendment or
supplement to the Registration Statement or the Prospectus
(i) prior to the Commencement Date which shall be disapproved
by any Agent promptly after reasonable notice thereof,
(ii) after the date of any Terms Agreement or other agreement
by an Agent to purchase Securities as principal and prior to the
related Time of Delivery which shall be disapproved by any Agent
party to such Terms Agreement or so purchasing as principal
promptly after reasonable notice thereof or (iii) during the
period beginning on the Commencement Date and continuing for as
long as may be required under applicable law, in the reasonable
judgment of such Agent after consultation with the Company, in
order to offer and sell any Securities in Secondary Market
Transactions as contemplated by the Prospectus (the “
Secondary Transactions Period ”) which shall be
disapproved by such Agent promptly after reasonable notice
thereof;
(c) To make no further
amendment or supplement to such form of prospectus which shall be
disapproved by Zions Direct, Inc. promptly after reasonable notice
thereof;
(d) Promptly from time to
time to take such action as such Agent may reasonably request to
qualify the Securities for offering, issue and sale under the
securities laws of such jurisdictions as such Agent may request and
to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution or sale of the Securities
(including in any Secondary Market Transactions during the
Secondary Transactions Period); provided, however , that in
connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(e) (i) if the delivery of a
prospectus or, in lieu thereof, the notice referred to in Rule
173(a) under the Act is required at any time prior to the
expiration of nine months after the time of issue of the applicable
Pricing Supplement in connection with the offering, issue or sale
of the Securities (including Securities purchased by such Agent as
principal and including in any Secondary Market Transactions during
the Secondary Transactions Period, whether before or after such
expiration) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus or, in lieu thereof, the notice referred
to in Rule 173(a) under the Act is delivered, not misleading, or,
if for any other reason it shall be nece
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