exv10w12






Exhibit
10.12




FIRST AMENDMENT

TO THE

AMENDED AND RESTATED

REGISTRATION RIGHTS AGREEMENT




     THIS FIRST AMENDMENT (the “Amendment”) to the Agreement (as defined below) is entered into
this 21st day of July, 2008, by and among EverBank Financial Corp., a Florida corporation (formerly
Alliance Capital Partners, L.P.) (the “Company”) and the persons listed on Schedule 1 to
the Agreement (the “Investors”).



     WHEREAS, the parties have entered into that certain Amended and Restated Registration Rights
Agreement (the “Agreement”), dated as of November 22, 2002, by and among the Company and
the Investors;



     WHEREAS, in connection with the closing of the transaction contemplated by the Investment
Agreement, dated as of July 21, 2008, by and among the Company and the Sageview Partners, L.P.
(“Sageview”), the Company shall issue and sell to Sageview 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 Sageview, the “Offering”);



     WHEREAS, the parties desire to amend the Agreement in certain respects in order to coordinate the
rights granted to the Investors under the Agreement with certain of the rights granted to Sageview
under the Registration Rights Agreement, dated as of date hereof, by and between Sageview and the
Company (the holders of the registration rights thereunder are referred to herein as the
“Sageview Holders”); and



     WHEREAS, capitalized terms used but not otherwise defined herein shall have the meaning ascribed to
them in the Agreement.



     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:



     1. Amendment to Section 2(a) (Requested Registration). Effective as of the date hereof, the
third full paragraph in Section 2(a) of the Agreement is hereby amended by adding the following
sentence to the end of such paragraph:




The Partnership’s right to delay the filing of a registration statement pursuant to clause (i) of
this paragraph shall expire upon the earlier of (a) the 6th anniversary of the date of
this Amendment or (b) the completion of an Initial Public Offering.



     2. Amendment to Section 2(b) (Requested Registration). Effective as of the date hereof, the
third sentence of second paragraph in Section
2(b) of the Agreement is hereby amended and restated
in its entirety as follows:




Notwithstanding any other provision of this Section 2, if the managing underwriter advises the
Initiating Holders in writing that marketing factors require a limitation on the number of shares
to be underwritten, then the amount of securities to be offered in such registration shall be
reduced to the extent necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such managing underwriter and allocating such securities to
be included in such offering:



 









 






     (i) in respect of any such proposed underwritten offering resulting from an Initiating Holder’s
demand registration request that (i) is made prior to the 24th month anniversary of the
date of this Amendment, and (ii) relates to a registration statement that is declared effective
prior to the 30th month anniversary of the date of this Amendment, (A) first, among all
Holders (including the Initiating Holders) in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities which they had requested to be included in such
registration, (B) second, pro rata among the Sageview Holders and any other holders of registration
rights on the basis of the percentage of the 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 securities for which inclusion in such registration statement was
requested by the Partnership 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 securities (on an as-converted or common stock equivalent basis, as applicable) requested to be
included in such registration statement by such persons; and




     (ii) in respect of any such proposed underwritten offering resulting from an Initiating Holder’s
demand registration request not meeting the requirements of (i) above, (A) first, pro rata among
the Holders and the Sageview Holders (together, the “Demand Holders”) on the basis of the
percentage of the 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 Demand Holders) on the basis of the
percentage of the 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
securities for which inclusion in such registration statement was requested by the Partnership 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 securities (on an as-converted
or common stock equivalent basis, as applicable) requested to be included in such registration
statement by such persons.


     3. Amendment to Section 3 (Piggyback Registration). Effective as of the date hereof, the
third sentence of Section 3(b) of the Agreement is hereby amended and restated in its entirety as
follows:





Notwithstanding any other provision of this Section 3, if the managing underwriter advises the
Partnership in writing that marketing factors require a limitation on the number of shares to be
underwritten, then the amount of securities to be offered in such registration shall be reduced to
the extent necessary to reduce the total amount of securities to be included in such offering to
the amount recommended by such managing underwriter and allocating such securities to be included
in such offering:




     (i) in respect of any such proposed underwritten offering resulting from a demand
registration request by the Sageview Holders, (A) first, pro rata among the Demand Holders on the
basis of the percentage of 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 securities (on an
as-converted basis, as applicable)



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requested to be included in such registration statement by such holders; and (C) third, the
securities for which inclusion in such registration statement was requested by the Partnership;




     (ii) in respect of any such proposed underwritten offering resulting from a demand registration
request by a party other than the Demand Holders (A) first, pro rata among the party making the
demand, and the Demand Holders on the basis of the percentage of the 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
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 securities for which
inclusion in such Registration Statement was requested by the Partnership, 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 securities (on an as-converted or common stock
equivalent basis, as applicable) requested to be included in such Registration statement by such
persons; and




     (iii) in respect of any other such proposed underwritten offering (other than a demand registration
pursuant to Section 2), (A) first, to such securities for which inclusion in such registration
statement was requested by the Partnership, (B) second, pro rata among the Demand Holders on the
basis of the percentage of the 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 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 securities (on an as-converted or common stock
equivalent basis, as applicable) requested to be included in such registration statement by such
persons.



     4. No Other Amendments. Except as specifically modified by Sections 1-3 above, the
Agreement shall remain in full force and effect in accordance with its terms.



     5. Counterparts. This Amendment may be executed in one or more counterparts, each of which
when executed shall be deemed an original but all of which together shall constitute one and the
same instrument.



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



	 	 	 	 	 	 	 

	 	 	EVERBANK FINANCIAL CORP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert M. Clements
 

Name: Robert M. Clements
	 	 
	 

	 	 	 	Title: Chairman & CEO	 	 
	 
	 	 	 	 	 	 
	 	 	ARENA CAPITAL INVESTMENT FUND, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Rupinder S. Sidhu
 

Name: Rupinder S. Sidhu
	 	 
	 

	 	 	 	Title Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	LOVETT/MILLER VENTURE
FUND II, LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ W. Radford Lovett II
 

Name:	 	 
	 

	 	 	 	Title	 	 
	 
	 	 	 	 	 	 
	 	 	LOVETT/MILLER VENTURE
FUND III, LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ W. Radford Lovett II
 

Name:	 	 
	 

	 	 	 	Title	 	 







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