exv10w28






Exhibit 10.28




FORM OF INDEMNIFICATION AGREEMENT




          This Indemnification Agreement, dated as of [•] (this “Agreement”), is entered into by
and between EverBank Financial Corp, a Delaware corporation (the “Company”), and [•] (the
“Indemnitee”).




          WHEREAS, it is essential to the Company to retain and attract as directors and officers the
most capable persons available;




          WHEREAS, the Indemnitee is a director and/or officer of the Company;




          WHEREAS, the Company and the Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public companies;




          WHEREAS, the Certificate of Incorporation of the Company requires the Company to indemnify and
advance expenses to its directors and officers to the fullest extent permitted by law and the
Indemnitee has been serving and continues to serve as a director or officer of the Company in part
in reliance on such provisions in the Certificate of Incorporation;




          WHEREAS, the board of directors of the Company (“Board of Directors”) has determined
that enhancing the ability of the Company to retain and attract as directors and officers the most
capable persons is in the best interests of the Company and that the Company therefore should seek
to assure such persons that indemnification and insurance coverage will be available in the future;
and




          WHEREAS, in recognition of the Indemnitee’s need for substantial protection against personal
liability in order to enhance the Indemnitee’s continued service to the Company in an effective
manner and the Indemnitee’s reliance on the aforesaid Certificate of Incorporation, and in part to
provide Indemnitee with specific contractual assurance that the protection promised by the
Certificate of Incorporation will be available to the Indemnitee (regardless of, among other
things, any amendment to or revocation of such Certificate of Incorporation or any change in the
composition of the Company’s Board of Directors or acquisition transaction relating to the
Company), the Company wishes to provide in this Agreement for the indemnification of and the
advancing of expenses to the Indemnitee to the fullest extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the extent insurance is maintained,
for the continued coverage of the Indemnitee under the Company’s directors’ and officers’ liability
insurance policies;




          NOW, THEREFORE, in consideration of the premises and of the Indemnitee continuing to serve the
Company directly or, at its request, as an officer, director, manager, member, partner, tax matters
partner, fiduciary or trustee of, or in any other capacity with, another Person (as defined below)
or any employee benefit plan, and intending to be legally bound hereby, the parties hereto agree as
follows:




 









 








          1. Certain Definitions: In addition to terms defined elsewhere herein, the following
terms have the following meanings when used in this Agreement:




     “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than
a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner”
(as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company’s then outstanding
Voting Securities, or (ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company and any new director
whose election by the Board of Directors or nomination for election by the Company’s stockholders
was approved by a vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the
stockholders of the Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the Voting Securities of
the Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of
the total voting power represented by the Voting Securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for the sale or disposition
by the Company of (in one transaction or a series of transactions) all or substantially all of the
Company’s assets.



     “Claim” means any threatened, asserted, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, investigative or other, including any
arbitration or other alternative dispute resolution mechanism, or any appeal of any kind thereof,
or any inquiry or investigation, whether instituted by (or in the right of) the Company or any
governmental agency or any other person or entity, in which the Indemnitee was, is, may be or will
be involved as a party, witness or otherwise.



     “Expenses” include attorneys’ fees and all other direct or indirect costs, expenses
and obligations, including judgments, fines, penalties, interest, appeal bonds, amounts paid in
settlement with the approval of the Company, and counsel fees and disbursements (including, without
limitation, experts’ fees, court costs, retainers, appeal bond premiums, transcript fees,
duplicating, printing and binding costs, as well as telecommunications, postage and courier
charges) paid or incurred in connection with investigating, prosecuting, defending, settling,
arbitrating, being a witness in or participating in (including on appeal), or preparing to
investigate, prosecute, defend, settle, arbitrate, be a witness in or participate in, any Claim
relating to any Indemnifiable Event, and shall include (without limitation) all attorneys’ fees and
all other expenses incurred by or on behalf of an Indemnitee in connection with preparing and
submitting any requests or statements for indemnification, advancement or any other right provided
by this



2









 




Agreement (including, without limitation, such fees or expenses incurred in connection with legal
proceedings contemplated by Section 2(d) hereof).




     “Indemnifiable Amounts” means (i) any and all liabilities, Expenses, damages,
judgments, fines, penalties, ERISA excise taxes and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in connection with or in respect of such
liabilities, Expenses, damages, judgments, fines, penalties, ERISA excise taxes or amounts paid in
settlement) arising out of or resulting from any Claim relating to an Indemnifiable Event, (ii) any
liability pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any
subsidiary of the Company, including, without limitation, any indebtedness which the Company or any
subsidiary of the Company has assumed or taken subject to, and (iii) any liabilities which an
Indemnitee incurs as a result of acting on behalf of the Company (whether as a fiduciary or
otherwise) in connection with the operation, administration or maintenance of an employee benefit
plan or any related trust or funding mechanism (whether such liabilities are in the form of excise
taxes assessed by the United States Internal Revenue Service, penalties assessed by the Department
of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or
beneficiary of such plan, trust or other funding mechanism, or otherwise).



     “Indemnifiable Event” means any event or occurrence, whether occurring before, on or
after the date of this Agreement, related to the fact that the Indemnitee is or was (or has agreed
to serve as) a director, officer, employee, agent or fiduciary of the Company, or is or was serving
(or has agreed to serve as) at the request of the Company as a director, officer, employee, trustee
or agent (which, for purposes hereof, shall include a fiduciary, partner or manager or similar
capacity) of another corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, or by reason of anything done or not done by the Indemnitee in any such capacity (in
all cases whether or not the Indemnitee is acting or serving in any such capacity or has such
status at the time any Indemnifiable Amount is incurred for which indemnification, advancement or
any other right can be provided by this Agreement).



     “Indemnitee-Related Entities” means any company, corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan or other entity or enterprise
(other than the Company or any other company, corporation, limited liability company, partnership,
joint venture, trust, employee benefit plan or other entity or enterprise Indemnitee has agreed, on
behalf of the Company or at the Company’s request, to serve as a director, officer, employee or
agent and which service is covered by the indemnity described in this Agreement) from whom an
Indemnitee may be entitled to indemnification or advancement of Expenses with respect to which, in
whole or in part, the Company may also have an indemnification or advancement obligation.



     “Independent Legal Counsel” means an attorney or firm of attorneys (following a Change
in Control, selected in accordance with the provisions of Section 3 hereof), who is experienced in
the matters of corporate law and who shall not have otherwise performed services for the Company or
the Indemnitee within the last five years (other than with respect to matters concerning the rights
of the Indemnitee under this Agreement, or of



3









 




other indemnitees under similar indemnity agreements).




     “Jointly Indemnifiable Claim” means any Claim for which the Indemnitee may be entitled
to indemnification from both an Indemnitee-Related Entity and the Company pursuant to applicable
law, any indemnification agreement or the certificate of incorporation, by-laws, partnership
agreement, operating agreement, certificate of formation, certificate of limited partnership or
comparable organizational documents of the Company and an Indemnitee-Related Entity.



     “Person” means any individual, corporation, firm, partnership, joint venture, limited
liability company, estate, trust, business association, organization, governmental entity or other
entity.



     “Reviewing Party” means any appropriate person or body consisting of a member or
members of the Company’s Board of Directors or any other person or body appointed by the Board of
Directors who is not a party to the particular Claim for which the Indemnitee is seeking
indemnification, or Independent Legal Counsel.



     “Voting Securities” means any securities of the Company which vote generally in the
election of directors.



          2. Basic Indemnification Arrangement; Advancement of Expenses.





	 	(a)	 	In the event that the Indemnitee was, is or becomes subject
to, a party to or witness or other participant in, or is threatened to be made
subject to, a party to or witness or other participant in, a Claim by reason
of (or arising in part out of) an Indemnifiable Event, the Company shall
indemnify the Indemnitee, or cause such Indemnitee to be indemnified, to the
fullest extent permitted by Delaware law; provided, however, that no change in
Delaware law shall have the effect of reducing the benefits available to the
Indemnitee hereunder based on Delaware law as in effect on the date hereof or
as such benefits may improve as a result of amendments after the date hereof.
Payments of Indemnifiable Amounts, shall be made as soon as practicable but in
any event no later than thirty (30) days after written demand is presented to
the Company.
	 
	 	(b)	 	If so requested by the Indemnitee, the Company shall advance,
or cause to be advanced (within two business days of such request) any and all
Expenses reasonably incurred by the Indemnitee (an “Expense Advance”)
prior to the final disposition of any Claim. The Company shall, in accordance
with such request (but without duplication), either (i) pay, or caused to be
paid, such Expenses on behalf of the Indemnitee, or (ii) reimburse, or cause
to be reimbursed the Indemnitee for such Expenses. Provided that the




4









 






	 	 	 	Indemnitee has executed and delivered to the Company an unsecured
undertaking providing that the Indemnitee undertakes to repay the advance
to the extent and only to the extent that it is ultimately determined that
the Indemnitee is not entitled to be indemnified by the Company, the
Indemnitee’s right to an Expense Advance is absolute and shall not be
subject to any prior determination by the Reviewing Party that the
Indemnitee has satisfied any applicable standard of conduct for
indemnification. Such advances (i) shall be unsecured and interest free;
(ii) shall be made without regard to the Indemnitee’s ability to repay the
advances and without regard to the Indemnitee’s ultimate entitlement to
indemnification under the other provisions of this Agreement; and (iii)
shall include any and all reasonable Expenses incurred pursuing an action
to enforce this right of advancement, including Expenses incurred
preparing and forwarding statements to the Company to support the advances
claimed.
	 
	 	(c)	 	Notwithstanding anything in this Agreement to the contrary,
the Indemnitee shall not be entitled to indemnification or advancement of
Expenses pursuant to this Agreement in connection with any Claim initiated by
the Indemnitee unless (i) the Company has joined in or the Board of Directors
has authorized or consented to the initiation of such Claim or (ii) the Claim
is one to enforce the Indemnitee’s rights under this Agreement (including an
action pursued by the Indemnitee to secure a determination that the Indemnitee
should be indemnified under applicable law).
	 
	 	(d)	 	Notwithstanding the foregoing, the indemnification
obligations of the Company under Section 2(a) shall be subject to the
condition that the Reviewing Party shall not have determined (in a written
legal opinion, in any case in which the Independent Legal Counsel is involved
as required by Section 3 hereof) that the Indemnitee would not be permitted to
be indemnified under applicable law; provided, however, that
if the Indemnitee has commenced or thereafter commences legal proceedings in a
court of competent jurisdiction to secure a determination that the Indemnitee
should be indemnified under applicable law, any determination made by the
Reviewing Party that the Indemnitee would not be permitted to be indemnified
under applicable law shall not be binding. If there has not been a Change in
Control, the Reviewing Party shall be selected by the Board of Directors, and
if there has been such a Change in Control, the Reviewing Party shall be the
Independent Legal Counsel referred to in Section 3 hereof. If there has been
no determination by the Reviewing Party within thirty (30) days after written
demand is presented to the Company or if the Reviewing Party determines that
the Indemnitee would not be permitted to be indemnified in whole or in part
under applicable law, the




5









 






	 	 	 	Indemnitee shall have the right to commence litigation in any court in the
State of Delaware having subject matter jurisdiction thereof and in which
venue is proper seeking an initial determination by the court or
challenging any such determination by the Reviewing Party or any aspect
thereof, including the legal or factual bases therefor, and the Company
hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and the Indemnitee.
	 	(e)	 	Notwithstanding the foregoing, to the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any or
all Claims relating in whole or in part to an Indemnifiable Event or in
defense of any issue or matter therein, including dismissal without prejudice,
the Indemnitee shall be indemnified against all Indemnifiable Amounts actually
and reasonably incurred in connection therewith, notwithstanding an earlier
determination by the Reviewing Party that the Indemnitee is not entitled to
indemnification under applicable law.





          3. Change in Control. The Company agrees that if there is a Change in Control of the
Company then with respect to all matters thereafter arising concerning the rights of the Indemnitee
to indemnity payments under this Agreement or any provision of the Certificate of Incorporation or
of the Bylaws hereafter in effect relating to Claims for Indemnifiable Events, the Company shall
seek legal advice only from Independent Legal Counsel selected by the Indemnitee and approved by
the Company (which approval shall not be unreasonably delayed, conditioned or withheld). Such
counsel, among other things, shall render its written opinion to the Company and the Indemnitee as
to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable
law. The Company agrees to pay the reasonable fees of the Independent Legal Counsel and to
indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this Agreement or its engagement pursuant
hereto.




          4. Indemnification for Additional Expenses. The Company shall indemnify, or cause the
indemnification of, the Indemnitee against any and all Expenses and, if requested by the
Indemnitee, shall advance such Expenses to the Indemnitee, subject to and in accordance with
Section 2(b), which are incurred by the Indemnitee in connection with any action brought by the
Indemnitee for (i) indemnification or an Expense Advance by the Company under this Agreement or any
other agreement or provision of the Certificate of Incorporation or of the Bylaws now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii) recovery under any directors’
and officers’ liability insurance policies maintained by the Company, regardless of whether the
Indemnitee ultimately is determined to be entitled to such indemnification, Expense Advance or
insurance recovery, as the case may be; provided that the Indemnitee shall be required to reimburse
such Expenses in the event that a final judicial determination is made (as to which all rights of
appeal therefrom have been exhausted or lapsed) that such action






6









 







brought by the Indemnitee, or the defense by the Indemnitee of an action brought by the
Company or any other person, as applicable, was frivolous or in bad faith.




          5. Partial Indemnity, Etc. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Expenses or other
Indemnifiable Amounts in respect of a Claim but not, however, for all of the total amount thereof,
the Company shall nevertheless indemnify the Indemnitee for the portion thereof to which the
Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the
extent that the Indemnitee has been successful on the merits or otherwise in defense of any or all
Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter
therein, including dismissal without prejudice, the Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.




          6. Burden of Proof. In connection with any determination by the Reviewing Party or
otherwise as to whether the Indemnitee is entitled to be indemnified hereunder, the Reviewing
Party, court, any finder of fact or other relevant person shall presume that the Indemnitee has
satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of
proof shall be on the Company or its representative to establish by clear and convincing evidence
that the Indemnitee is not so entitled.




          7. Reliance as Safe Harbor. For purposes of this Agreement, and without creating any
presumption as to a lack of good faith if the following circumstances do not exist, the Indemnitee
shall be deemed to have acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Company if the Indemnitee’s actions or omissions to act
are taken in good faith reliance upon the records of the Company, including its financial
statements, or upon information, opinions, reports or statements furnished to the Indemnitee by the
officers or employees of the Company or any of its subsidiaries in the course of their duties, or
by committees of the Board of Directors, or by any other Person (including legal counsel,
accountants and financial advisors) as to matters the Indemnitee reasonably believes are within
such other Person’s professional or expert competence and who has been selected with reasonable
care by or on behalf of the Company. In addition, the knowledge and/or actions, or failures to
act, of any director, officer, agent or employee of the Company shall not be imputed to the
Indemnitee for purposes of determining the right to indemnity hereunder.




          8. No Other Presumptions. For purposes of this Agreement, the termination of any
Claim by judgment, order, settlement (whether with or without court approval) or conviction, or
upon a plea of nolo contendere, or its equivalent, shall not create a presumption that the
Indemnitee did not meet any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by applicable law. In addition, neither
the failure of the Reviewing Party to have made a determination as to whether the Indemnitee has
met any particular standard of conduct or had any particular belief, nor an actual determination by
the Reviewing Party that the Indemnitee has not met such standard of conduct or did not have such
belief, prior to the commencement of legal proceedings by the Indemnitee to secure a judicial
determination that the Indemnitee should be indemnified under applicable law shall be a defense to
the






7









 







Indemnitee’s claim or create a presumption that the Indemnitee has not met any particular
standard of conduct or did not have any particular belief.




          9. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition
to any other rights the Indemnitee may have under the Company’s Certificate of Incorporation, the
Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General
Corporation Law (whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Company’s Certificate of Incorporation or this
Agreement, it is the intent of the parties hereto that the Indemnitee shall enjoy by this Agreement
the greater benefits so afforded by such change. To the extent that there is a conflict or
inconsistency between the terms of this Agreement and the Certificate of Incorporation, it is the
intent of the parties hereto that the Indemnitee shall enjoy the greater benefits regardless of
whether contained herein, or in the Certificate of Incorporation. No amendment or alteration of
the Certificate of Incorporation or Bylaws or any other agreement shall adversely affect the rights
provided to the Indemnitee under this Agreement. No limitation of the Indemnitee’s rights pursuant
to this Agreement shall in any way limit, or imply any limitation of, the Indemnitee’s rights under
any other agreement.




          10. Liability Insurance. The Company shall use commercially reasonable efforts to
maintain a policy or policies of insurance with reputable insurance companies providing directors
and officers with coverage for any liability asserted by reason of the fact that they are serving
as a director or officer or have agreed to serve as a director, officer, employee or agent of
another enterprise, and, to the extent the Company maintains an insurance policy or policies
providing directors’ and officers’ liability insurance, the Indemnitee shall be covered by such
policy or policies, in accordance with its or their terms, to the maximum extent of the coverage
available for any Company director or officer. If the Company has such insurance in effect at the
time the Company receives from the Indemnitee any notice of the commencement of an action, suit or
proceeding, the Company shall give prompt notice of the commencement of such action, suit or
proceeding to the insurers in accordance with the procedures set forth in the policy. The Company
shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of
the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of
such policy.




          11. Period of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against the Indemnitee, the Indemnitee’s
spouse, heirs, executors or personal or legal representatives after the expiration of two years
from the date of accrual of such cause of action, and any claim or cause of action of the Company
shall be extinguished and deemed released unless asserted by the timely filing of a legal action
within such two-year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period shall govern.




          12. Amendments, Etc. No supplement, modification or amendment of this Agreement shall
be binding unless executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a






8









 







waiver of any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.




          13. Subrogation. Subject to Section 14, in the event of payment under this Agreement,
the Company shall be subrogated to the extent of such payment to all of the rights of recovery of
the Indemnitee, who shall execute all papers reasonably required and shall do everything that may
be reasonably necessary to secure such rights, including the execution of such documents necessary
to enable the Company effectively to bring suit to enforce such rights. The Company shall pay or
reimburse all Expenses actually and reasonably incurred by the Indemnitee in connection with such
subrogation.




          14. Jointly Indemnifiable Claims. Given that certain Jointly Indemnifiable Claims may
arise due to the relationship between the Indemnitee-Related Entities and the Company and the
service of the Indemnitee as a director and/or officer of the Company at the request of the
Indemnitee-Related Entities, the Company acknowledges and agrees that the Company shall be fully
and primarily responsible for the payment to the Indemnitee in respect of indemnification and
advancement of expenses in connection with any such Jointly Indemnifiable Claim, pursuant to and in
accordance with the terms of this Agreement, irrespective of any right of recovery the Indemnitee
may have from the Indemnitee-Related Entities. Under no circumstance shall the Company be entitled
to any right of subrogation or contribution or any right to coverage from any insurer providing
insurance coverage under any policy purchased or maintained by the Indemnitee-Related Entities and
no right of recovery the Indemnitee may have from the Indemnitee-Related Entities shall reduce or
otherwise alter the rights of the Indemnitee or the obligations of the Company hereunder. In the
event that any of the Indemnitee-Related Entities shall make any payment to the Indemnitee in
respect of indemnification or advancement of Expenses with respect to any Jointly Indemnifiable
Claim, the Company agrees that such payment or advancement shall not extinguish or affect in any
way the rights of the Indemnitee under this Agreement and further agrees that the
Indemnitee-Related Entity making such payment shall be subrogated to the extent of such payment to
all of the rights of recovery of the Indemnitee against the Company. Each of the
Indemnitee-Related Entities shall be third-party beneficiaries with respect to this Section 14,
entitled to enforce this Section 14 against the Company as though each such Indemnitee-Related
Entity were a party to this Agreement.




          15. No Duplication of Payments. Subject to Section 14, the Company shall not be
liable under this Agreement to make any payment in connection with any Claim made against the
Indemnitee to the extent the Indemnitee has otherwise actually received payment (under any
insurance policy, any provision of the Certificate of Incorporation or otherwise) of the amounts
otherwise indemnifiable hereunder.




          16. Defense of Claims. The Company shall be entitled to participate in the defense of
any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel
reasonably satisfactory to the Indemnitee; provided that if the Indemnitee believes, after
consultation with counsel selected by the Indemnitee, that (i) the use of counsel chosen by the
Company to represent the Indemnitee would present such counsel with an actual or potential conflict
of interest, (ii) the named parties in any such Claim






9









 







(including any impleaded parties) include the Company or any subsidiary of the Company and the
Indemnitee, and the Indemnitee concludes that there may be one or more legal defenses available to
him or her that are different from or in addition to those available to the Company or such
subsidiary of the Company, or (iii) any such representation by such counsel would be precluded
under the applicable standards of professional conduct then prevailing, then the Indemnitee shall
be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local
counsel in respect of any particular Claim) at the Company’s expense. The Company shall not be
liable to the Indemnitee under this Agreement for any amounts paid in settlement of any Claim
relating to an Indemnifiable Event effected without the Company’s prior written consent. The
Company shall not, without the prior written consent of the Indemnitee, effect any settlement of
any Claim relating to an Indemnifiable Event which the Indemnitee is or could have been a party
unless such settlement solely involves the payment of money and includes a complete and
unconditional release of the Indemnitee from all liability on all claims that are the subject
matter of such Claim. Neither the Company nor the Indemnitee shall unreasonably withhold,
condition or delay its or his or her consent to any proposed settlement; provided that the
Indemnitee may withhold consent to any settlement that does not provide a complete and
unconditional release of the Indemnitee. In no event shall the Indemnitee be required to waive,
prejudice or limit attorney-client privilege or work-product protection or other applicable
privilege or protection.




          17. No Adverse Settlement. The Company shall not seek, nor shall it agree to, consent
to, support, or agree not to contest any settlement or other resolution of any Claim(s), or
settlement or other resolution of any other claim, action, proceeding, demand, investigation or
other matter that has the actual or purported effect of extinguishing, limiting or impairing the
Indemnitee’s rights hereunder, including, without limitation, the entry of any bar order or other
order, decree or stipulation, pursuant to 15 U.S.C. § 78u-4 (the Private Securities Litigation
Reform Act), or any similar foreign, federal or state statute, regulation, rule or law.




          18. Binding Effect, Etc. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective successors, assigns
(including any direct or indirect successor by purchase, merger, consolidation or otherwise to all
or substantially all of the business and/or assets of the Company), spouses, heirs, executors and
personal and legal representatives. This Agreement shall continue in effect regardless of whether
the Indemnitee continues to serve as an officer and/or director of the Company or of any other
enterprise at the Company’s request. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation, or otherwise) to all or substantially all of
the business and/or assets of the Company and/or its subsidiaries, by written agreement in form and
substance satisfactory to the Indemnitee and his or her counsel, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the Company would be required
to perform if no such succession had taken place.




          19. Severability. The provisions of this Agreement shall be severable in the event
that any of the provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, illegal,






10









 







void or otherwise unenforceable in any respect, and the validity and enforceability of any
such provision in every other respect and of the remaining provisions hereof shall not be in any
way impaired and shall remain enforceable to the fullest extent permitted by law.




          20. Specific Performance, Etc. The parties recognize that if any provision of this
Agreement is violated by the Company, the Indemnitee may be without an adequate remedy at law.
Accordingly, in the event of any such violation, the Indemnitee shall be entitled, if the
Indemnitee so elects, to institute proceedings, either in law or at equity, to obtain damages, to
enforce specific performance, to enjoin such violation, or to obtain any relief or any combination
of the foregoing as the Indemnitee may elect to pursue.




          21. Notices. All notices, requests, consents and other communications hereunder to
any party shall be deemed to be sufficient if contained in a written document delivered in person
or sent by facsimile, nationally recognized overnight courier or personal delivery, addressed to
such party at the address set forth below or such other address as may hereafter be designated on
the signature pages of this Agreement or in writing by such party to the other parties:





	 	(a)	 	If to the Company, to:






	 	 	 	EverBank Financial Corp

501 Riverside Avenue, 12th Floor

Jacksonville, Florida 32202

Fax: (904) 623-8190

Attn: Thomas Hajda, Esq.






	 	 	 	with a copy (which shall not constitute notice) to:






	 	 	 	Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York 10036-6522

Fax: (212) 735-2000

Attn: Patricia Moran, Esq.






	 	(b)	 	If to the Indemnitee, to the address set forth on the signature page hereof.




All such notices, requests, consents and other communications shall be deemed to have been given or
made if and when received (including by overnight courier) by the parties at the above addresses or
sent by electronic transmission, with confirmation received, to the facsimile numbers specified
above (or at such other address or facsimile number for a party as shall be specified by like
notice). Any notice delivered by any party hereto to any other party hereto shall also be
delivered to each other party hereto simultaneously with delivery to the first party receiving such
notice.




          22. Counterparts. This Agreement may be executed in counterparts, each of which shall
for all purposes be deemed to be an original but all of which together shall constitute one and the
same agreement. Only one such counterpart signed by the party






11









 







against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement.




          23. Headings. The headings of the sections and paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this Agreement or to
affect the construction or interpretation thereof.




          24. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made and to be performed
in such state without giving effect to the principles of conflicts of laws.







12









 









          IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 
	 	EverBank Financial Corp

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	INDEMNITEE

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Business Address:
Telephone:
Facsimile: 	 
	 




13