exv10w14






Exhibit 10.14




REGISTRATION RIGHTS AGREEMENT




BY AND BETWEEN



EVERBANK FINANCIAL CORP.



AND



SAGEVIEW PARTNERS L.P.



DATED AS OF JULY 21, 2008





 









 





Table of Contents




	 	 	 	 	 
	 	 	Page	 
	Section 1. Definitions
	 	 	1	 
	 
	 	 	 	 
	Section 2. Holders of Registrable Securities
	 	 	4	 
	 
	 	 	 	 
	Section 3. Demand Registrations
	 	 	4	 
	 
	 	 	 	 
	Section 4. Piggyback Registration
	 	 	7	 
	 
	 	 	 	 
	Section 5. Restrictions on Public Sale by Holders of Registrable Securities
	 	 	10	 
	 
	 	 	 	 
	Section 6. Registration Procedures
	 	 	10	 
	 
	 	 	 	 
	Section 7. Registration Expenses
	 	 	16	 
	 
	 	 	 	 
	Section 8. Indemnification
	 	 	17	 
	 
	 	 	 	 
	Section 9. Rule 144
	 	 	19	 
	 
	 	 	 	 
	Section 10. Underwritten Registrations
	 	 	19	 
	 
	 	 	 	 
	Section 11. Limitation on Subsequent Registration Rights.
	 	 	21	 
	 
	 	 	 	 
	Section 12. Miscellaneous
	 	 	21	 






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REGISTRATION RIGHTS AGREEMENT




     REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of July 21, 2008, is by and
between EverBank Financial Corp., a Florida corporation, (the “Corporation”) and Sageview
Partners L.P. (the “Investor”).



          WHEREAS, in connection with the closing of the transactions contemplated by the Investment
Agreement, dated as of July 21, 2008, by and among the Corporation and the Investor, the
Corporation shall issue and sell to the Investor 92,500 shares of 4% Series B Cumulative
Participating Perpetual Pay In Kind Preferred Stock (the “Series B Preferred Stock” and
such sale of Series B Preferred Stock to the Investor, the “Offering”);




          WHEREAS, the parties hereto desire to enter into this Agreement to provide the Demand Holders
with certain registration and other rights with respect to the Company.




          NOW, THEREFORE, for and in consideration of the mutual agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto, intending to be legally bound hereby, agree as follows:




     Section 1. Definitions. As used in this Agreement, the following terms shall have the
following meanings, and terms used herein but not otherwise defined herein shall have the meanings
assigned to them in the Stockholders Agreement:



          “Agreement” shall have the meaning set forth in the Preamble.




          “Alternative IPO Entity” shall have the meaning set forth in Section 11 hereof.




          “Arena/Lovett Demand Registration” shall mean a registration of Company Securities
pursuant to the delivery by the Arena/Lovett Holders of a demand registration request pursuant to
Section 2 of the Arena/Lovett Registration Rights Agreement.




          “Arena/Lovett Holders” shall mean Arena Capital Investment Fund, L.P., Lovett/Miller
Venture Fund II, Limited Partnership and Lovett/Miller Venture Fund III, Limited Partnership.




          “Arena/Lovett Registration Rights Agreement” shall mean the Amended and Restated
Registration Rights Agreement by and among the Company and the Arena/Lovett Holders, dated as of
November 22, 2002, as amended.




          “Common Stock” shall mean all shares existing or hereafter authorized of any class of
common stock of the Corporation which has the right (subject always to the rights of any class or
series of preferred stock of the Corporation) to participate in the distribution of the assets and
earnings of the Corporation without limit as to per share amount, including any shares of capital
stock into which Common Stock may be converted (as a result of recapitalization, share exchange or
similar event) or are issued with respect to Common Stock, including, without limitation, with
respect to any stock split or stock dividend, or a successor security.







 









 








          “Company Securities” shall mean (i) the Common Stock, (ii) the Series B Preferred
Stock and (iii) all shares existing or hereafter authorized of any class of preferred stock of the
Corporation which has the right (subject always to the rights of any class or series of preferred
stock of the Corporation ranking senior to or pari passu with such preferred stock) to participate
in the distribution of the assets and earnings of the Corporation without limit as to per share
amount, including (without duplication) any shares of capital stock into which Company Securities
may be converted (as a result of recapitalization, share exchange or similar event) or are issued
with respect to Company Securities, including, without limitation, with respect to any stock split
or stock dividend, or a successor security.




          “Corporation” shall have the meaning set forth in the Preamble.




          “Demand Holders” shall mean (i) the holders of Registrable Securities and (ii) the
Arena/Lovett Holders.




          “Demand Notice” shall have the meaning set forth in Section 3(a) hereof.




          “Demand Registration” shall have the meaning set forth in Section 3(a) hereof.




          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and any
successor statute thereto and the rules and regulations of the SEC promulgated thereunder.




          “Indemnified Party” shall have the meaning set forth in Section 8(c) hereof.




          “Indemnifying Party” shall have the meaning set forth in Section 8(c) hereof.




          “Initial Public Offering” means any firm commitment underwritten offering (or series
of related offerings) of Common Stock to the public pursuant to an effective registration statement
under the Securities Act.




          “Investor” shall have the meaning set forth in the Preamble.




          “Losses” shall have the meaning set forth in Section 8(a) hereof.




          “Notice” shall have the meaning set forth in Section 3(a).




          “Offering” has the meaning set forth in the Recitals.




          “Permitted Transferee” shall have the meaning set forth in the Stockholders Agreement.




          “Person” shall mean any natural person, corporation, limited partnership, general
partnership, limited liability company, joint stock company, joint venture, association, company,
estate, trust, bank trust company, land trust, business trust, or other organization, whether or
not a legal entity, custodian, trustee-executor, administrator, nominee or entity in a
representative capacity and any government or agency or political subdivision thereof.







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          “Piggyback Notice” shall have the meaning set forth in Section 4(a) hereof.




          “Piggyback Registration” shall have the meaning set forth in Section 4(a) hereof.




          “Proceeding” shall mean an action, claim, suit, arbitration or proceeding (including,
without limitation, an investigation or partial proceeding, such as a deposition), whether
commenced or threatened.




          “Prospectus” shall mean the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable Securities covered by
such Registration Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed to be incorporated
by reference in such prospectus.




          “Public Offering” shall mean the sale of Common Stock to the public pursuant to an
effective Registration Statement (other than Form S-4 or Form S-8 or any similar or successor form)
filed under the Securities Act or any comparable law or regulatory scheme of any foreign
jurisdiction.




          “Registrable Securities” shall mean (i) the Series B Preferred Stock and (ii) any
shares of Common Stock issuable upon conversion of the Series B Preferred Stock currently held or
hereafter acquired by the Investor (including any shares of Common Stock held indirectly by the
Investor), and any other securities issued or issuable with respect to any such shares by way of
share split, share dividend, recapitalization, exchange or similar event or otherwise. As to any
particular Registrable Securities, once issued such securities shall cease to be Registrable
Securities when (i) they are sold pursuant to an effective Registration Statement under the
Securities Act, (ii) they are sold pursuant to Rule 144 under the Securities Act, (iii) they shall
have ceased to be outstanding, or (iv) they have been sold in a private transaction in which the
transferor’s rights under this Agreement are not assigned to the transferee of the securities.




          “Registration Rights Holder” shall mean the Investor and any other Person entitled to
incidental or piggyback registration rights pursuant to an agreement with the Corporation.




          “Registration Statement” shall mean any registration statement of the Corporation
under the Securities Act which covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration statement.




          “Rule 144” shall mean Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the SEC.







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          “SEC” shall mean the Securities and Exchange Commission or any successor agency having
jurisdiction under the Securities Act.




          “Securities Act” shall mean the Securities Act of 1933, as amended, and any successor
statute thereto and the rules and regulations of the SEC promulgated thereunder.




          “Series B Preferred Stock” shall have the meaning set forth in the Recitals.




          “Shelf Underwritten Offering” shall have the meaning set forth in Section 4(c) hereof.




          “Stockholders Agreement” shall mean the Corporation’s Amended and Restated Stock
Redemption and Shareholder Agreement, dated as of the date hereof, by and among the Corporation and
the holders of its outstanding capital stock signatory thereto.




          “Take-Down Notice” shall have the meaning set forth in Section 4(c) hereof.




          “Third Party Demanders” shall mean any Person or Persons exercising demand
registration rights pursuant to an agreement with the Corporation other than the Demand Holders.




          “Third Party Demand Registration” means any proposed registration of Company
Securities initiated pursuant to a demand for such registration by a Third Party Demander.




          “underwritten registration or underwritten offering” shall mean a registration
in which securities of the Corporation are sold to an underwriter for reoffering to the public.




          Section 2. Holders of Registrable Securities. A Person is deemed, and shall only be
deemed, to be a holder of Registrable Securities if such Person owns Registrable Securities or has
a right to acquire such Registrable Securities and (i) is the Investor or (ii) has executed an
Addendum Agreement pursuant to Section 12(c) of this Agreement.




     Section 3. Demand Registrations.



               (a) Requests for Registration. Subject to the following paragraphs of this Section
3(a), on or after the earlier of (i) the sixth anniversary of the date hereof and (ii) following
the Initial Public Offering, the Investor shall have the right, by delivering a written notice to
the Corporation, to require the Corporation to register, pursuant to the terms of this Agreement,
under and in accordance with the provisions of the Securities Act, the number of Registrable
Securities requested to be so registered pursuant to the terms of this Agreement (any such written
notice, a “Demand Notice” and any such registration, a “Demand Registration”);
provided, however, that the Corporation shall not be obligated to file a
registration statement relating to any registration request under this Section 3(a) within a period
of 180 days after the effective date of any other registration statement relating to any
registration request under this Section 3(a). Following receipt of a Demand Notice for a Demand
Registration in accordance with this Section 3(a), the Corporation shall use its reasonable best
efforts to file a Registration Statement as promptly as practicable and shall use its reasonable
best efforts to cause such



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Registration Statement to be declared effective under the Securities Act as promptly as
practicable after the filing thereof.




          No Demand Registration shall be deemed to have occurred for purposes of this Section 3 if the
Registration Statement relating thereto (i) does not become effective, (ii) is not maintained
effective for the period required pursuant to this Section 3, or (iii) the offering of the
Registrable Securities pursuant to such Registration Statement is subject to a stop order,
injunction, or similar order or requirement of the SEC during such period, in which case, such
requesting holder of Registrable Securities shall be entitled to an additional Demand Registration
in lieu thereof.




          Within 10 days after receipt by the Corporation of a Demand Notice in accordance with this
Section 3(a), the Corporation shall give written notice (the “Notice”) of such Demand
Notice to all other holders of Registrable Securities and shall, subject to the provisions of
Section 3(b) hereof, include in such registration all Registrable Securities with respect to which
the Corporation received written requests for inclusion therein within 25 days after such Notice is
given by the Corporation to such holders.




          All requests made pursuant to this Section 3 will specify the number of Registrable Securities
to be registered and/or, in the case of an Initial Public Offering, the number of shares of Common
Stock to be issued, and the intended methods of disposition thereof.




          The Corporation shall be required to maintain the effectiveness of the Registration Statement
with respect to any Demand Registration for a period of at least 180 days after the effective date
thereof or such shorter period during which all Registrable Securities included in such
Registration Statement have actually been sold; provided, however, that such period
shall be extended for a period of time equal to the period the Investor refrains from selling any
securities included in such Registration Statement at the request of the Corporation or an
underwriter of the Corporation pursuant to the provisions of this Agreement; provided,
further, that the Corporation shall use its reasonable best efforts to keep any shelf
registration statement continuously effective until such time as each of the Registrable Securities
registered pursuant to such shelf registration statement has been sold in one or more Shelf
Underwritten Offerings or otherwise.




               (b) Priority on Demand Registration. If any of the Registrable Securities registered
pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and
the managing underwriter or underwriters advise the holders of such securities in writing that, in
its view, the total number or dollar amount of Registrable Securities and other Company Securities
proposed to be sold in such offering is such as to adversely affect the success of such offering
(including, without limitation, Company Securities proposed to be included by other holders of
Company Securities entitled to include securities in such Registration Statement pursuant to
incidental or piggyback registration rights), then there shall be included in such firm commitment
underwritten offering the number or dollar amount of Registrable Securities that in the opinion of
such managing underwriter can be sold without adversely affecting such offering, and such number of
Registrable Securities and other Company Securities shall be allocated as follows, unless the
underwriter requires a different allocation:



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     (i) first, pro rata among the Demand Holders on the basis of the percentage
of Company Securities (on an as-converted basis) requested to be included in such
Registration Statement by such Demand Holders;




     (ii) second, pro rata among any Registration Rights Holders (other than the
Demand Holders) on the basis of the percentage of the Company Securities (on an
as-converted basis, as applicable) requested to be included in such Registration
Statement by such holders; and




     (iii) third, the Company Securities for which inclusion in such Registration
Statement was requested by the Corporation.



     For purposes of any underwriter cutback, Registrable Securities shall also include any
Registrable Securities held by the partners, retired partners, shareholders or affiliates of the
Investor, or the estates and family members of any such holder or such partners and retired
partners, any trusts for the benefit of any of the foregoing persons and, at the election of such
holder or such partners, retired partners, trust or affiliates, any charitable organization, in
each case to which any of the foregoing shall have been distributed, transferred or contributed
Registrable Securities prior to the execution of the underwriting agreement in connection with such
underwritten offering; provided that such distribution, transfer or contribution occurred
not more than 90 days prior to such execution, and such holder and other persons shall be deemed to
be a single selling holder, and any pro rata reduction (unless the managing underwriter requires a
different allocation) with respect to such selling holder shall be based upon the aggregate amount
of Registrable Securities owned by all entities and individuals included in such selling holder, as
defined in this sentence. No securities excluded from the underwriting by reason of the
underwriter’s marketing limitation shall be included in such registration.



               (c) Postponement of Demand Registration. The Corporation shall be entitled to
postpone not more than once in any 12-month period, for a reasonable period of time not in excess
of 120 days, the filing of a Registration Statement if the Corporation delivers to the Investor a
certificate signed by the chief executive officer or the chief financial officer of the Corporation
certifying that, in the good faith judgment of the board of directors of the Corporation, such
registration and offering would reasonably be expected to materially adversely affect or materially
interfere with any bona fide material financing of the Corporation or any material
transaction under consideration by the Corporation or would require disclosure of information that
has not been disclosed to the public, the premature disclosure of which would materially adversely
affect the Corporation. Such certificate shall contain a statement of the reasons for such
postponement and an approximation of the anticipated delay. The holders receiving such certificate
shall keep the information contained in such certificate confidential subject to the same terms set
forth in Section 6(p). If the Corporation shall so postpone the filing of a Registration
Statement, the Investor shall have the right to withdraw the request for registration by giving
written notice to the Corporation within 20 days of the anticipated termination date of the
postponement period, as provided in the certificate delivered to the holders.



               (d) Number of Demand Notices. In connection with the provisions of this Section 3,
the Investor shall have up to three Demand Notices which it is permitted to deliver



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(or cause to be delivered) to the Corporation hereunder; provided, that if the Investor has
already delivered (or caused to be delivered) three Demand Notices and the number of Registrable
Securities actually registered pursuant to this Section 3 is less than 75% of the Registrable
Securities held by the Investor immediately following the closing of the Offering, the Investor
shall have such number of additional Demand Notices as may be required to effect the registration
of at least 75% of the Registrable Securities held by the Investor immediately following the
closing of the Offering. For the avoidance of doubt, the provisions of this Section 3(d) shall in
no way impair the Investor’s ability to request registration of any amount of Registrable
Securities pursuant to any Demand Notice delivered pursuant to the terms of this Agreement.




               (e) Registration Statement Form. If any registration requested pursuant to this
Section 3 which is proposed by the Corporation to be effected by the filing of a Registration
Statement on Form S-3 (or any successor or similar short-form registration statement) shall be in
connection with an underwritten Public Offering, and if the managing underwriter shall advise the
Corporation in writing that, in its opinion, the use of another form of Registration Statement is
of material importance to the success of such proposed offering or is otherwise required by
applicable law, then such registration shall be effected on such other form.



     Section 4. Piggyback Registration.



               (a) Right to Piggyback. Except with respect to a Demand Registration, the procedures
for which are addressed in Section 3, if the Corporation proposes to file a registration statement
under the Securities Act with respect to an offering of Company Securities, whether or not for sale
of its own account (other than a registration statement (i) on Form S-4, Form S-8 or any successor
forms thereto or (ii) filed solely in connection with an exchange offer or any employee benefit or
dividend reinvestment plan), then, each such time, the Corporation shall give prompt written notice
of such proposed filing at least twenty (20) days before the anticipated filing date (the
“Piggyback Notice”) to all of the holders of Registrable Securities. The Piggyback Notice
shall offer such holders the opportunity to include (or cause to be included) in such registration
statement the number of Registrable Securities as each such holder may request (a “Piggyback
Registration”). Subject to Section 4(b) hereof, the Corporation shall include in each such
Piggyback Registration all Registrable Securities with respect to which the Corporation has
received written requests for inclusion therein within fifteen (15) days after notice has been
given to the applicable holder. The eligible holders of Registrable Securities shall be permitted
to withdraw all or part of the Registrable Securities from a Piggyback Registration at any time at
least two business days prior to the effective date of such Piggyback Registration. The
Corporation shall not be required to maintain the effectiveness of the Registration Statement for a
Piggyback Registration beyond the earlier to occur of (i) 180 days after the effective date thereof
and (ii) consummation of the distribution by the holders of the Registrable Securities included in
such Registration Statement.



               (b) Priority on Piggyback Registrations. The Corporation shall use reasonable best
efforts to cause the managing underwriter or underwriters of a proposed underwritten offering to
permit holders of Registrable Securities who have submitted a Piggyback Notice in connection with
such offering to include in such offering all Registrable Securities included in each holder’s
Piggyback Notice on the same terms and conditions as any



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other shares of Company Securities, if any, of the Corporation included in the offering.
Notwithstanding the foregoing, if the managing underwriter or underwriters of such underwritten
offering have informed the Corporation in writing that it is their good faith opinion that the
total amount of Company Securities that such holders, the Corporation and any other Persons having
rights to participate in such registration, intend to include in such offering is such as to
adversely affect the success of such offering, then the amount of Company Securities to be offered
in such registration shall be reduced to the extent necessary to reduce the total amount of Company
Securities to be included in such offering to the amount recommended by such managing underwriter
or underwriters and allocating such Company Securities to be included in such offering:





     (i) in respect of any such proposed underwritten offering resulting from an
Arena/Lovett Demand Registration that is made prior to the 24th month
anniversary of this Agreement and relates to a Registration Statement that is
effective on or prior to the 30th month anniversary of this Agreement,
(A) first, among the Arena/Lovett Holders as required to fulfill the Corporation’s
obligations in connection with the Arena/Lovett Demand Registration pursuant to
the Arena/Lovett Registration Rights Agreement, (B) second, pro rata among any
holders of Registrable Securities and any other Registration Rights Holders (other
than the Arena/Lovett Holder initiating the Arena/Lovett Demand Registration) on
the basis of the percentage of the Company Securities (on an as-converted or
Common Stock equivalent basis, as applicable) requested to be included in such
Registration Statement by such holders, (C) third, to such Company Securities for
which inclusion in such Registration Statement was requested by the Corporation
and (D) fourth, pro rata among any other Persons having rights to participate in
such offering and requesting such registration, on the basis of the percentage of
the Company Securities (on an as-converted or Common Stock equivalent basis, as
applicable) requested to be included in such Registration Statement by such
Persons;




     (ii) in respect of any such proposed underwritten offering resulting from an
Arena/Lovett Demand Registration not meeting the requirements of Section 4(b)(i)
hereof, (A) first, pro rata among the Demand Holders on the basis of the percentage
of Company Securities (on an as-converted basis) requested to be included in such
Registration Statement by such Demand Holders, (B) second, pro rata among any
Registration Rights Holders (other than the Demand Holders) on the basis of the
percentage of the Company Securities (on an as-converted basis, as applicable)
requested to be included in such Registration Statement by such holders, (C) third,
to such Company Securities for which inclusion in such Registration Statement was
requested by the Corporation and (D) fourth, pro rata among any other Persons having
rights to participate in such offering and requesting such registration, on the
basis of the percentage of the Company Securities (on an as-converted or Common
Stock equivalent basis, as applicable) requested to be included in such Registration
Statement by such Persons;



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     (iii) in respect of any such proposed underwritten offering resulting from a
Third Party Demand Registration (A) first, pro rata among the Third Party Demanders
and the Demand Holders on the basis of the percentage of the Company Securities (on
an as-converted or Common Stock equivalent basis, as applicable) requested to be
included in such Registration Statement by such holders, (B) second, pro rata among
any other Registration Rights Holders (other than the Third Party Demanders and the
Demand Holders) on the basis of the percentage of the Company Securities (on an
as-converted or Common Stock equivalent basis, as applicable) requested to be
included in such Registration Statement by such holders, (C) third, to such Company
Securities for which inclusion in such Registration Statement was requested by the
Corporation and (D) fourth, pro rata among any other Persons having rights to
participate in such offering and requesting such registration, on the basis of the
percentage of the Company Securities (on an as-converted or Common Stock equivalent
basis, as applicable) requested to be included in such Registration Statement by
such Persons; and



               (iv) in respect of any other such proposed underwritten offering (other than a
Demand Registration), (A) first, to such Company Securities for which inclusion in
such Registration Statement was requested by the Corporation, (B) second, pro rata
among the Demand Holders on the basis of the percentage of the Company Securities
(on an as-converted or Common Stock equivalent basis, as applicable) requested to be
included in such Registration Statement by such holders, (C) third, pro rata among
any other Registration Rights Holders (other than the Demand Holders) on the basis
of the percentage of the Company Securities (on an as-converted or Common Stock
equivalent basis, as applicable) requested to be included in such Registration
Statement by such holders and (D) fourth, pro rata among any other Persons having
rights to participate in such offering and requesting such registration, on the
basis of the percentage of the Company Securities (on an as-converted or Common
Stock equivalent basis, as applicable) requested to be included in such Registration
Statement by such Persons.



               (c) Shelf-Take Downs. At any time that a shelf registration statement covering
Registrable Securities pursuant to Section 3 or Section 4 is effective, if any holder or group of
holders of Registrable Securities delivers a notice to the Corporation (a “Take-Down
Notice”) stating that it intends to effect an underwritten offering of all or part of its
Registrable Securities included by it on the shelf registration statement (a “Shelf
Underwritten Offering”) and stating the number of Registrable Securities to be included in the
Shelf Underwritten Offering, then the Corporation shall amend or supplement the shelf registration
statement as may be necessary in order to enable such Registrable Securities to be distributed
pursuant to the Shelf Underwritten Offering (taking into account the inclusion of Registrable
Securities by any other holders pursuant to this Section 4(c)). In connection with any Shelf
Underwritten Offering:




               (i) such proposing holder(s) shall also deliver the Take-Down Notice to all
other Persons holding Company Securities (including, without limitation,
Registrable Securities) included on such shelf registration statement and permit



9









 







each such Person to include such Company Securities included on the shelf
registration statement in the Shelf Underwritten Offering if such Person notifies
the proposing holders and the Corporation within five business days after delivery
of the Take-Down Notice to such Person; and




               (ii) in the event that the underwriter determines that marketing factors
(including an adverse effect on the per share offering price) require a limitation
on the number of shares which would otherwise be included in such take down, the
underwriter may limit the number of shares which would otherwise be included in
such take-down offering in the same manner as described in Section 3(b) with
respect to a limitation of shares to be included in a registration.



     Section 5. Restrictions on Public Sale by Holders of Registrable Securities. Each
holder of Registrable Securities agrees, in connection with any underwritten offering of Common
Stock pursuant to a Registration Statement (whether or not such holder elected to include
Registrable Securities in such Registration Statement), if requested (pursuant to a written notice)
by the managing underwriter or underwriters in an underwritten offering, not to effect any public
sale or distribution of any Registrable Securities (except as part of such underwritten offering),
including a sale pursuant to Rule 144, or to make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of any Registrable Securities, any other equity securities of the
Corporation or any securities convertible into or exchangeable or exercisable for any equity
securities of the Corporation without the prior written consent of the Corporation or such
underwriter, as the case may be, or to give any Demand Notice during the period commencing on the
date of the request (which shall be no earlier than 14 days prior to the expected “pricing” of such
offering) and continuing for not more than 180 days (with respect to the Initial Public Offering)
or 90 days after the date of the Prospectus (or Prospectus supplement if the offering is made
pursuant to a “shelf” registration), pursuant to which such public offering shall be made, plus an
extension period, which shall be no longer than 10 days, as may be proposed by the managing
underwriter to address NASD regulations regarding the publishing of research, or such lesser period
as is required by the managing underwriter.



     If any registration pursuant to Section 3 of this Agreement shall be in connection with any
underwritten Public Offering, the Corporation will not effect any public sale or distribution of
any Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock)
(other than a registration statement (i) on Form S-4, Form S-8 or any successor forms thereto or
(ii) filed solely in connection with an exchange offer or any employee benefit or dividend
reinvestment plan) for its own account, within 90 days (or such shorter periods as the managing
underwriters may agree to with a Corporation’s Board of Directors or appropriate coordination
committee, as applicable) after the effective date of such registration.



     Section 6. Registration Procedures. Subject to Section 3(c), if and whenever the
Corporation is required to use its reasonable best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 3 and Section 4 hereof, the
Corporation shall effect such registration to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and pursuant thereto the
Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:



10









 





               (a) prepare and file with the SEC a Registration Statement or Registration Statements on such
form as shall be available for the sale of the Registrable Securities by the holders thereof or by
the Corporation in accordance with the intended method or methods of distribution thereof, and use
its reasonable best efforts to cause such Registration Statement to become effective and to remain
effective as provided herein (including by means of a shelf registration statement pursuant to Rule
415 under the Securities Act if so requested and if the Company is then eligible to use such
registration); provided, however, that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto (including documents that would be incorporated
or deemed to be incorporated therein by reference), the Corporation shall furnish or otherwise make
available to the holders of the Registrable Securities covered by such Registration Statement,
their counsel and the managing underwriters, if any, copies of all such documents proposed to be
filed, which documents will be subject to the reasonable review and comment of such counsel, and
such other documents reasonably requested by such counsel, including any comment letter from the
SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate
in the preparation of such Registration Statement and each Prospectus included therein and such
other opportunities to conduct a reasonable investigation within the meaning of the Securities Act,
including reasonable access to the Corporation’s books and records, officers, accountants and other
advisors, in all cases subject to Section 6(p) below. The Corporation shall not file any such
Registration Statement or Prospectus or any amendments or supplements thereto (including such
documents that, upon filing, would be incorporated or deemed to be incorporated by reference
therein) with respect to a Demand Registration to which the holders of a majority of the
Registrable Securities covered by such Registration Statement, their counsel, or the managing
underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the
opinion of the Corporation, such filing is necessary to comply with applicable law;



               (b) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement continuously
effective during the period provided herein and comply in all material respects with the provisions
of the Securities Act with respect to the disposition of all securities covered by such
Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus
supplement as may be necessary to comply with the provisions of the Securities Act with respect to
the disposition of the securities covered by such Registration Statement, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;



               (c) notify each selling holder of Registrable Securities, its counsel and the managing
underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective amendment, when the same
has become effective, (ii) of any request by the SEC or any other federal or state governmental
authority for amendments or supplements to a Registration Statement or related Prospectus or for
additional information, (iii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings for that purpose,
(iv) if at any time the Corporation has reason to believe that the representations and warranties
of the Corporation contained in any agreement (including any underwriting agreement) contemplated
by Section 6(o) below cease to be true and correct, (v) of



11









 




the receipt by the Corporation of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the
Corporation has knowledge of the happening of any event that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that requires the making of any
changes in such Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements therein,
not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading (which notice
shall notify the selling holders only of the occurrence of such an event and shall provide no
additional information regarding such event to the extent such information would constitute
material non-public information);




               (d) use its reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction
at the earliest date reasonably practical;



               (e) if requested by the managing underwriters, if any, or the holders of a majority of the
then outstanding Registrable Securities being sold in connection with an underwritten offering,
promptly include in a Prospectus supplement or post-effective amendment such information as the
managing underwriters, if any, and such holders may reasonably request in order to permit the
intended method of distribution of such securities and make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after the Corporation has
received such request; provided, however, that the Corporation shall not be
required to take any actions under this Section 6(e) that are not, in the opinion of counsel for
the Corporation, in compliance with applicable law;



               (f) furnish or make available to each selling holder of Registrable Securities, its counsel
and each managing underwriter, if any, without charge, at least one conformed copy of the
Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each
post-effective amendment thereto, including financial statements (but excluding schedules, all
documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless
requested in writing by such holder, counsel or underwriter);



               (g) deliver to each selling holder of Registrable Securities, its counsel, and the
underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including
each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably
request from time to time in connection with the distribution of the Registrable Securities; and
the Corporation, subject to the last paragraph of this Section 6, hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the selling holders of
Registrable Securities and the underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;



12









 





               (h) prior to any public offering of Registrable Securities, use its reasonable best efforts to
register or qualify or cooperate with the selling holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such Registrable Securities
for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United
States as any seller or underwriter reasonably requests in writing and to keep each such
registration or qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and to take any other action that may be
necessary or advisable to enable such holders of Registrable Securities to consummate the
disposition of such Registrable Securities in such jurisdiction; provided, however,
that the Corporation will not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action that would subject it to
general service of process in any such jurisdiction where it is not then so subject;



               (i) cooperate with the selling holders of Registrable Securities and the managing
underwriters, if any, to facilitate the timely preparation and delivery of certificates (not
bearing any legends) representing Registrable Securities to be sold after receiving written
representations from each holder of such Registrable Securities that the Registrable Securities
represented by the certificates so delivered by such holder will be transferred in accordance with
the Registration Statement, and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or holders may request at least two
(2) business days prior to any sale of Registrable Securities in a firm commitment public offering,
but in any other such sale, within ten (10) business days prior to having to issue the securities;



               (j) use its reasonable best efforts to cause the Registrable Securities covered by the
Registration Statement to be registered with or approved by such other governmental agencies or
authorities within the United States, except as may be required solely as a consequence of the
nature of such selling holder’s business, in which case the Corporation will cooperate in all
reasonable respects with the filing of such Registration Statement and the granting of such
approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any,
to consummate the disposition of such Registrable Securities;



               (k) upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi)
above, prepare a supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, such Prospectus 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;



               (l) prior to the effective date of the Registration Statement relating to the Registrable
Securities, provide a CUSIP number for the Registrable Securities;



13









 





               (m) provide and cause to be maintained a transfer agent and registrar for all Registrable
Securities covered by such Registration Statement from and after a date not later than the
effective date of such Registration Statement;



               (n) use its reasonable best efforts to cause all shares (i) to be offered by the Corporation
in connection with the Initial Public Offering to be listed on a national securities exchange and
(ii) of Registrable Securities covered by such Registration Statement to be listed on a national
securities exchange if shares of the particular class of Registrable Securities are at that time
listed on such exchange, as the case may be, prior to the effectiveness of such Registration
Statement (or, if such registration is the Initial Public Offering, use its reasonable best efforts
to cause such Registrable Securities to be so listed within ten (10) business days following the
effectiveness of such Registration Statement);



               (o) enter into such agreements (including an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all such other actions reasonably
requested by the holders of a majority of the Registrable Securities being sold in connection
therewith (including those reasonably requested by the managing underwriters, if any) to expedite
or facilitate the disposition of such Registrable Securities, and in such connection, whether or
not an underwriting agreement is entered into and whether or not the registration is an
underwritten registration, (i) make such representations and warranties to the holders of such
Registrable Securities and the underwriters, if any, with respect to the business of the
Corporation and its subsidiaries, and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if
true, confirm the same if and when requested, (ii) use its reasonable best efforts to furnish to
the selling holders of such Registrable Securities opinions of counsel to the Corporation and
updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and counsels to the selling holders of the
Registrable Securities), addressed to each selling holder of Registrable Securities and each of the
underwriters, if any, covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by such counsel and
underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates
thereof from the independent certified public accountants of the Corporation (and, if necessary,
any other independent certified public accountants of any subsidiary of the Corporation or of any
business acquired by the Corporation for which financial statements and financial data are, or are
required to be, included in the Registration Statement) who have certified the financial statements
included in such Registration Statement, addressed to each selling holder of Registrable Securities
(unless such accountants shall be prohibited from so addressing such letters by applicable
standards of the accounting profession) and each of the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in “cold comfort” letters in
connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures substantially to the effect set forth in
Section 8 hereof with respect to all parties to be indemnified pursuant to said Section except as
otherwise agreed by the Investor and (v) deliver such documents and certificates as may be
reasonably requested by the holders of a majority of the Registrable Securities being sold pursuant
to such Registration Statement, their counsel and the managing underwriters, if any, to evidence
the continued validity of the representations and



14









 




warranties made pursuant to Section 6(o)(i) above and to evidence compliance with any
customary conditions contained in the underwriting agreement or other agreement entered into by the
Corporation. The above shall be done at each closing under such underwriting or similar agreement,
or as and to the extent required thereunder;




               (p) make available for inspection by a representative of the selling holders of Registrable
Securities, any underwriter participating in any such disposition of Registrable Securities, if
any, and any attorneys or accountants retained by such selling holders or underwriter, at the
offices where normally kept, during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Corporation and its subsidiaries, and cause the
officers, directors and employees of the Corporation and its subsidiaries to supply all information
in each case reasonably requested by any such representative, underwriter, attorney or accountant
in connection with such Registration Statement; provided, however, that any
information that is not generally publicly available at the time of delivery of such information
shall be kept confidential by such Persons unless (i) disclosure of such information is required by
court or administrative order, (ii) disclosure of such information, in the opinion of counsel to
such Person, is required by law or applicable legal process, or (iii) such information becomes
generally available to the public other than as a result of a non-permitted disclosure or failure
to safeguard by such Person. In the case of a proposed disclosure pursuant to (i) or (ii) above,
such Person shall be required to give the Corporation written notice of the proposed disclosure
prior to such disclosure (to the extent permitted by law) and, if requested by the Corporation,
assist the Corporation in seeking to prevent or limit the proposed disclosure. Without limiting
the foregoing, no such information shall be used by such Person as the basis for any market
transactions in securities of the Corporation or its subsidiaries in violation of law;



               (q) cause its officers to use their reasonable best efforts to support the marketing of the
Registrable Securities covered by the Registration Statement (including, without limitation,
participation in “road shows”) taking into account the Corporation’s business needs; and



               (r) cooperate with each seller of Registrable Securities and each underwriter or agent
participating in the disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD.



          The Corporation may require each holder of Registrable Securities as to which any registration
is being effected to furnish to the Corporation in writing such information required in connection
with such registration regarding such seller and the distribution of such Registrable Securities as
the Corporation may, from time to time, reasonably request in writing and the Corporation may
exclude from such registration the Registrable Securities of any holder who unreasonably fails to
furnish such information within a reasonable time after receiving such request.




          Each holder of Registrable Securities agrees if such holder has Registrable Securities covered
by such Registration Statement that, upon receipt of any notice from the Corporation of the
happening of any event of the kind described in Section 6(c)(ii), 6(c)(iii), 6(c)(iv) or 6(c)(v)
hereof, such holder will forthwith discontinue disposition of such Registrable






15









 







Securities covered by such Registration Statement or Prospectus until such holder’s receipt of
the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until
it is advised in writing by the Corporation that the use of the applicable Prospectus may be
resumed, and has received copies of any additional or supplemental filings that are incorporated or
deemed to be incorporated by reference in such Prospectus; provided, however, that
the time periods under Section 3 with respect to the length of time that the effectiveness of a
Registration Statement must be maintained shall automatically be extended by the amount of time the
holder is required to discontinue disposition of such securities.




     Section 7. Registration Expenses. All reasonable fees and expenses incident to the
performance of or compliance with this Agreement by the Corporation (including, without limitation,
(i) all registration and filing fees (including, without limitation, fees and expenses (A) with
respect to filings required to be made with the SEC and with the National Association of Securities
Dealers, Inc. and (B) of compliance with securities or Blue Sky laws, including, without
limitation, any fees and disbursements of counsel for the underwriters in connection with Blue Sky
qualifications of the Registrable Securities pursuant to Section 6(h)), (ii) printing expenses
(including, without limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing Prospectuses if the
printing of Prospectuses is requested by the managing underwriters, if any, or by the holders of a
majority of the Registrable Securities included in any Registration Statement), (iii) messenger,
telephone and delivery expenses of the Corporation, (iv) fees and disbursements of counsel for the
Corporation, (v) expenses of the Corporation incurred in connection with any road show, (vi) fees
and disbursements of all independent certified public accountants referred to in Section 6(o)(iii)
hereof (including, without limitation, the expenses of any “cold comfort” letters required by this
Agreement) and any other persons, including special experts retained by the Corporation, (vii) fees
and disbursements of one counsel for the Investor and the holders of Registrable Securities whose
shares are included in a Registration Statement, which counsel shall be selected by the Investor),
and (viii) any fees and disbursements of underwriters customarily paid by the issuers or sellers of
securities, including, without limitation, liability insurance if the Corporation so desires or if
the underwriters so require, shall each be borne by the Corporation whether or not any Registration
Statement is filed or becomes effective; provided, however, that the Corporation shall not be
required to pay any of the forgoing registration expenses if, as a result of the withdrawal of a
request for a Demand Registration (other than as a result of a material adverse change in the
Corporation’s business, operations, financial condition, operating results or prospects) the
registration statement does not become effective, in which case, the Investor shall bear such
registration expenses and, provided further, that such registration shall not be counted as a
registration pursuant to Section 3(d); provided, further, that the Investor may elect to have such
withdrawn registration statement count as a registration pursuant to Section 3(d), in which event
the Corporation shall bear such registration expenses relating to the withdrawn registration. In
addition, the Corporation shall pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or accounting duties), the
expense of any annual audit, the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange and rating agency fees and the fees and
expenses of any Person, including special experts, retained by the Corporation.



16









 





          The Corporation shall not be required to pay (i) fees and disbursements of any counsel
retained by any holder of Registrable Securities or by any underwriter (except as set forth in
clauses 7(i)(B) and 7(vii)), (ii) any underwriter’s fees (including discounts, commissions or fees
of underwriters, selling brokers, dealer managers or similar securities industry professionals)
relating to the distribution of the Registrable Securities (other than with respect to Registrable
Securities sold by the Corporation or as otherwise set forth in this Section 7), or (iii) any other
expenses of the holders of Registrable Securities not specifically required to be paid by the
Corporation pursuant to the first paragraph of this Section 7.




     Section 8. Indemnification.



               (a) Indemnification by the Corporation. In the event of any registration of any
Registrable Securities under the Securities Act pursuant to this Agreement, the Corporation shall
indemnify and hold harmless, to the fullest extent permitted by law, each holder of Registrable
Securities whose Registrable Securities are covered by a Registration Statement or Prospectus, the
officers, directors, partners, members, managers, shareholders, accountants, attorneys, agents and
employees of each of them, each Person who controls each such holder (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, partners,
members, managers, shareholders, accountants, attorneys, agents and employees of each such
controlling person, each underwriter, if any, and each Person who controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter, from and
against any and all losses, claims, damages, liabilities, costs (including, without limitation,
costs of preparation and reasonable attorneys’ fees and any legal or other fees or expenses
incurred by such party in connection with any investigation or Proceeding), expenses, judgments,
fines, penalties, charges and amounts paid in settlement (collectively, “Losses”), as
incurred, arising out of or based upon any untrue statement (or alleged untrue statement) of a
material fact contained in any Registration Statement under which such Registrable Securities were
registered under the Securities Act, any preliminary, final or summary Prospectus, contained
therein or related thereto, or any amendment or supplement thereto, together with the documents
incorporated by reference therein, or any free writing prospectus utilized in connection therewith,
incident to any such registration, qualification, or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by the Corporation of the Securities
Act, the Exchange Act, any state securities law, or any rule or regulation thereunder applicable to
the Corporation and (without limitation of the preceding portions of this Section 8(a)) will
reimburse each such holder, each of its officers, directors, partners, members, managers,
shareholders and employees and each Person who controls each such holder and the officers,
directors, partners, members, managers, shareholders and employees of each such controlling person,
each such underwriter, and each person who controls any such underwriter, for any legal and any
other expenses reasonably incurred in connection with investigating and defending or settling any
such claim, loss, damage, liability, or action; provided that the Corporation will not be liable in
any such case to the extent that any such claim, loss, damage, liability, or expense arises out of
or is based on any untrue statement or omission by such holder or underwriter, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission)
is made in such Registration Statement, preliminary, final or summary Prospectus, contained therein
or related thereto, or any amendment or supplement thereto, together with the documents
incorporated by



17









 




reference therein, or any free writing prospectus utilized in connection therewith in reliance
upon and in conformity with written information furnished to the Corporation by such holder for use
therein. It is agreed that the indemnity agreement contained in this Section 8(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Corporation (which consent shall not be
unreasonably withheld).




               (b) Indemnification by Holder of Registrable Securities. The Corporation may require,
as a condition to including any Registrable Securities in any registration statement filed in
accordance with this Agreement, that the Corporation shall have received an undertaking reasonably
satisfactory to it from the prospective seller of such Registrable Securities to indemnify, to the
fullest extent permitted by law, severally and not jointly with any other holders of Registrable
Securities, the Corporation, its officers, directors, and each Person who controls the Corporation
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) and all
other prospective sellers, from and against all Losses arising out of or based on any untrue
statement of a material fact contained in any Registration Statement under which such Registrable
Securities were registered under the Securities Act, any preliminary, final or summary Prospectus,
contained therein or related thereto, or any amendment or supplement thereto, together with the
documents incorporated by reference therein, or any free writing prospectus utilized in connection
therewith, incident to any such registration, qualification, or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will (without limitation of the
portions of this Section 8(b)) reimburse the Corporation, its officers, directors, and each Person
who controls the Corporation (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act) and all other prospective sellers for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such claim, loss, damage,
liability, or action, in each case to the extent, but only to the extent, that such untrue
statement or omission is made in such Registration Statement, preliminary, final or summary
Prospectus, contained therein or related thereto, or any amendment or supplement thereto, together
with the documents incorporated by reference therein, or any free writing prospectus utilized in
connection therewith in reliance upon and in conformity with written information furnished to the
Corporation by such holder for inclusion therein; provided, however, that the
obligations of such holder hereunder shall not apply to amounts paid in settlement of any such
claims, losses, damages, or liabilities (or actions in respect thereof) if such settlement is
effected without the consent of such holder (which consent shall not be unreasonably withheld); and
provided, further, that the liability of such holder of Registrable Securities
shall be limited to the net proceeds received by such selling holder from the sale of Registrable
Securities covered by such Registration Statement.



               (c) Conduct of Indemnification Proceedings. If any Person shall be entitled to
indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall give prompt
notice to the party from which such indemnity is sought (the “Indemnifying Party”) of any
claim or of the commencement of any Proceeding with respect to which such Indemnified Party seeks
indemnification or contribution pursuant hereto; provided, however, that the delay
or failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any
obligation or liability except to the extent that the Indemnifying Party has been materially
prejudiced by such delay or failure. The Indemnifying Party shall have the right, exercisable by



18









 




giving written notice to an Indemnified Party promptly after the receipt of written notice
from such Indemnified Party of such claim or Proceeding, to, unless in the Indemnified Party’s
reasonable judgment a conflict of interest between such indemnified and indemnifying parties may
exist in respect of such claim, assume, at the Indemnifying Party’s expense, the defense of any
such claim or Proceeding, with counsel reasonably satisfactory to such Indemnified Party;
provided, however, that an Indemnified Party shall have the right to employ
separate counsel in any such claim or Proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Indemnified Party unless: (i) the
Indemnifying Party agrees to pay such fees and expenses; or (ii) the Indemnifying Party fails
promptly to assume, or in the event of a conflict of interest cannot assume, the defense of such
claim or Proceeding or fails to employ counsel reasonably satisfactory to such Indemnified Party,
in which case the Indemnified Party shall have the right to employ separate counsel and to assume
the defense of such claim or proceeding at the Indemnifying Party’s expense; provided,
further, however, that the Indemnifying Party shall not, in connection with any one
such claim or Proceeding or separate but substantially similar or related claims or Proceedings in
the same jurisdiction, arising out of the same general allegations or circumstances, be liable for
the fees and expenses of more than one firm of attorneys (together with appropriate local counsel)
at any time for all of the Indemnified Parties, or for fees and expenses that are not reasonable.
Whether or not such defense is assumed by the Indemnifying Party, such Indemnifying Party will not
be subject to any liability for any settlement made without its consent (but such consent will not
be unreasonably withheld). The Indemnifying Party shall not consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release, in form and substance reasonably
satisfactory to the Indemnified Party, from all liability in respect of such claim or litigation
for which such Indemnified Party would be entitled to indemnification hereunder.




               (d) Contribution. If the indemnification provided for in this Section 8 is
unavailable to an Indemnified Party in respect of any Losses (other than in accordance with its
terms), then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a result of such
Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying
Party, on the one hand, and such Indemnified Party, on the other hand, in connection with the
actions, statements or omissions that resulted in such Losses as well as any other relevant
equitable considerations. The relative fault of such Indemnifying Party, on the one hand, and
Indemnified Party, on the other hand, shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact, has been made (or omitted) by, or relates
to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent any such action,
statement or omission.



          The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 8(d) were determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 8(d), an Indemnifying Party that is a
selling holder of Registrable Securities shall not be required to contribute any amount in excess
of the amount that such Indemnifying Party has otherwise been,






19









 







or would otherwise be, required to pay pursuant to Section 8(b) by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent misrepresentation.




               (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection with the
underwritten public offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.



     Section 9. Rule 144.



               (a) After an Initial Public Offering, the Corporation shall (i) file the reports required to
be filed by it under the Securities Act and the Exchange Act in a timely manner, (ii) take such
further action as any holder of Registrable Securities may reasonably request, and (iii) furnish to
each holder of Registrable Securities forthwith upon written request, (x) a written statement by
the Corporation as to its compliance with the reporting requirements of Rule 144, the Securities
Act and the Exchange Act, (y) a copy of the most recent annual or quarterly report of the
Corporation, and (z) such other reports and documents so filed by the Corporation as such holder
may reasonably request in availing itself of Rule 144, all to the extent required from time to time
to enable such holder to sell Registrable Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144. Upon the request of any holder of
Registrable Securities, the Corporation shall deliver to such holder a written statement as to
whether it has complied with such requirements.



               (b) The foregoing provisions of this Section 9 are not intended to modify or otherwise affect
any restrictions on transfers of securities contained in the Stockholders Agreement.



     Section 10. Underwritten Registrations. If any Demand Registration is an underwritten
offering, the Investor shall have the right to select the investment banker or investment bankers
and managers to administer the offering, subject to approval by the Corporation, not to be
unreasonably withheld. The Corporation shall have the right to select the investment banker or
investment bankers and managers to administer any Piggyback Registration.



               No Person may participate in any underwritten registration hereunder unless such Person (i)
agrees to sell the Registrable Securities it desires to have covered by Registration Statement on
the basis provided in any underwriting arrangements in customary form (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements, provided that such Person shall not be
required to make any representations or warranties other than those related to title and ownership
of such Person’s shares and as to the accuracy and completeness of statements made in a
Registration Statement, Prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Corporation or the managing underwriter by
such Person for use therein and (iii) cooperates with the Corporation’s reasonable requests in
connection with such registration or qualification (it



20









 




being understood that the Corporation’s failure to perform its obligations hereunder, which
failure is caused by such person’s failure to cooperate with such reasonable requests, will not
constitute a breach by the Corporation of this Agreement).



     Section 11. Limitation on Subsequent Registration Rights. From and after the date of this
Agreement, the Corporation shall not, without the prior written consent of the Investor, enter into
any agreement with any holder or prospective holder of any Company Security giving such holder or
prospective holder any registration rights the terms of which are more favorable than the
registration rights granted to the holders of Registrable Securities hereunder, or which would
reduce the amount of Registrable Securities the holders can include in any registration statement
filed pursuant to Section 3 hereof, unless such rights are subordinate to those of the holders of
Registrable Securities.




     Section 12. Miscellaneous.



               (a) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this section, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given without the written consent of the
Investor; provided, however, that any amendment, modification, supplement, waiver
or consent to departures from the provisions of this Agreement that would be adverse to a right
specifically granted to the Arena/Lovett Holders shall require the agreement of such holders;
provided, further, that any amendment, modification, supplement or waiver or
consent to departures from the piggyback or similar registration rights provisions or related
cutback provisions contained in the third paragraph of Section 3(a), Section 3(b) or Section 4 that
would be adverse to the rights of the Demand Holders or a holder of Registrable Securities shall
require the consent of such Person. Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that relates exclusively to the rights of
holders of Registrable Securities whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other holders of
Registrable Securities may be given by holders of at least a majority of the Registrable Securities
being sold by such holders pursuant to such Registration Statement.



               (b) Notices. All notices required to be given hereunder shall be in writing and shall
be deemed to be duly given if personally delivered, telecopied and confirmed, or mailed by
certified mail, return receipt requested, or overnight delivery service with proof of receipt
maintained, at the following address (or any other address that any such party may designate by
written notice to the other parties):



          If to the Corporation, to the address of its principal executive offices. If to any holder of
Registrable Securities, including the Investor, to such holder’s address as set forth on the
records of the Corporation. Any such notice shall, if delivered personally, be deemed received
upon delivery; shall, if delivered by telecopy, be deemed received on the first business day
following confirmation; shall, if delivered by overnight delivery service, be deemed received the
first business day after being sent; and shall, if delivered by mail, be deemed received upon the
earlier of actual receipt thereof or five business days after the date of deposit in the United
States mail.







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               (c) Successors and Assigns; Investor Status. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of each of the parties,
including the Corporation and subsequent holders of Registrable Securities acquired, directly or
indirectly, from the Investor in accordance with the provisions of the Stockholders Agreement and
that certain Transfer and Governance Agreement, dated as of the date hereof, by and between the
Corporation and the Investor; provided, however, that such successor or assign
shall not be entitled to such rights unless the successor or assign shall have executed and
delivered to the Corporation an Addendum Agreement substantially in the form of Exhibit A hereto
(which shall also be executed by the Corporation) promptly following the acquisition of such
Registrable Securities, in which event such successor or assign shall be deemed a holder of
Registrable Securities for purposes of this Agreement. Except as provided in Section 8 with
respect to an Indemnified Party, nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any Person other than the parties hereto and their respective successors
and permitted assigns any legal or equitable right, remedy or claim under, in or in respect of this
Agreement or any provision herein contained.



               (d) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.



               (e) Headings. The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.



               (f) Governing Law. The provisions of this Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.



               (g) Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or unenforceable.



               (h) Entire Agreement. This Agreement and the Stockholders Agreement are intended by
the parties as a final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein and therein, with respect to the registration
rights granted by the Corporation with respect to Registrable Securities. This Agreement
supersedes all prior agreements and understandings between the parties with respect to such subject
matter.



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               (i) Securities Held by the Corporation or its subsidiaries. Whenever the consent or
approval of holders of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Corporation or its subsidiaries shall not be counted in
determining whether such consent or approval was given by the holders of such required percentage.



               (j) Specific Performance. The parties hereto recognize and agree that money damages
may be insufficient to compensate the holders of any Registrable Securities for breaches by the
Corporation of the terms hereof and, consequently, that the equitable remedy of specific
performance of the terms hereof will be available in the event of any such breach.



               (k) Term. This Agreement shall terminate with respect to the Investor on the date on
which the Investor ceases to own Registrable Securities; provided, that, such Investor’s
rights and obligations pursuant to Section 8, as well as the Corporation’s obligations to pay
expenses pursuant to Section 7, shall survive with respect to any registration statement in which
any Registrable Securities of the Investor were included.



               (l) Consent to Jurisdiction. The parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of the courts of the State of New York and the federal courts of the
United States of America located in the Borough of Manhattan, State of New York, and appropriate
appellate courts therefrom, over any dispute arising out of or relating to this Agreement or any of
the transactions contemplated hereby, and each party hereby irrevocably agrees that all claims in
respect of such dispute or proceeding may be heard and determined in such courts. The parties
hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which
they may now or hereafter have to the laying of venue of any dispute arising out of or relating to
this Agreement or any of the transactions contemplated hereby brought in such court or any defense
of inconvenient forum for the maintenance of such dispute. Each of the parties hereto agrees that
a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. This consent to jurisdiction is being given solely for purposes
of this Agreement and is not intended to, and shall not, confer consent to jurisdiction with
respect to any other dispute in which a party to this Agreement may become involved.



          Each of the parties hereto hereby consents to process being served by any party to this
Agreement in any suit, action, or proceeding of the nature specified in the paragraph above by the
mailing of a copy thereof in the manner specified by the provisions of subsection (b) of this
Section 12.




          EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.




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          IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights Agreement to be
duly executed as of the date first above written.




	 	 	 	 	 
	 	EverBank Financial Corp

 	 
	 	By:  	/s/ Thomas A. Hajda
 	 
	 	 	Name:  	Thomas A. Hajda 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	Sageview Partners L.P.

 	 
	 	By:  	Sageview Capital GenPar, Ltd., its general
 	 
	 	 	partner 	 
	 	 	 
	 	By:  	                                              /s/ Scott M. Stuart
 	 
	 	 	Name:  	Scott M. Stuart 	 
	 	 	Title:  	Director 	 
	 



[Registration Rights Agreement]
















 








EXHIBIT A




ADDENDUM AGREEMENT




     This Addendum Agreement is made this ___ day of ____________, 20___, by and between
_______________________ (the “New Investor”) and EverBank Financial Corp. (the “Corporation”),
pursuant to a Registration Rights Agreement dated as of [ ] (the “Agreement”), by and among the
Corporation, the Investor and the Arena/Lovett Holders. Capitalized terms used herein but not
otherwise defined herein shall have the meanings ascribed to them in the Agreement.


WITNESSETH:




     WHEREAS, the Corporation has agreed to provide registration rights with respect to the
Registrable Securities as set forth in the Agreement; and



     WHEREAS, the New Investor has acquired Registrable Securities directly or indirectly from the
Investor; and



     WHEREAS, the Corporation and the Investor have required in the Agreement that all persons
desiring registration rights must enter into an Addendum Agreement binding the New Investor to the
Agreement to the same extent as if it were an original party thereto;



     NOW, THEREFORE, in consideration of the mutual promises of the parties, the New Investor
acknowledges that it has received and read the Agreement and that the New Investor shall be bound
by, and shall have the benefit of, all of the terms and conditions set out in the Agreement to the
same extent as if it were an original party to the Agreement and shall be deemed to be a holder of
Registrable Securities thereunder.



____________________

New Investor



Address:



______________________



______________________




Exhibit A-1
















 








     AGREED TO on behalf of the Corporation pursuant to Section 12(c) of the Agreement.



	 	 	 	 	 
	 	EVERBANK FINANCIAL CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit A-2