Exhibit 10.11


 


AMENDED AND
RESTATED


EMPLOYMENT
AGREEMENT


(Kenneth D.
Misch)


 


AMENDED
AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) dated December 30,
2009 by and between Dynavox Systems LLC (the “Company”) and Kenneth D. Misch
(the “Executive”).


 


The
Company and Executive are parties to that certain Employment Agreement, dated June 1,
2009 (the “Prior Agreement”); and


 


The
Company and Executive desire to amend the Prior Agreement in certain respects
effective on and after the date hereof and to restate the Prior Agreement to
read in its entirety as follows.


 


In
consideration of the premises and mutual covenants herein and for other good
and valuable consideration, the parties agree as follows:


 


1.             Term of Employment.   Subject to the provisions of Section 7
of this Agreement, Executive shall be employed by the Company for a period
commencing on December 30, 2009 (the “Commencement Date”) and ending on December 29,
2014 (the “Employment Term”) on the terms and subject to the conditions set
forth in this Agreement; provided, however, that commencing with December 30,
2014 and on each December 30 thereafter (each an “Extension Date”), the
Employment Term shall be automatically extended for an additional one-year
period, unless the Company or Executive provides the other party hereto 90
days’ prior written notice before the next Extension Date that the Employment
Term shall not be so extended.


 


2.             Position.


 


a.             During the Employment Term, Executive shall serve as the
Company’s Chief Financial Officer. 
Executive shall report to and receive an annual performance review from
the Company’s Chief Executive Officer (“CEO”). 
Subject to reasonable business travel, Executive’s primary work location
shall be located in Pittsburgh, Pennsylvania.


 


b.             During the Employment Term, Executive will devote
Executive’s best efforts (subject, in each case, to periods of vacation and
illness) to the performance of Executive’s duties hereunder.  Except as such supplementary after working
hours time spent as a board member of Financial Executives International and
relating to limited activity with EXTS, LLC (formerly E-xpedient Holdings,
LLC), Executive will not engage in any other business, profession or occupation
for compensation or otherwise which would conflict or reasonably be expected to
interfere with the rendition of such services either directly or indirectly,
without the prior written consent of the Board of Directors of the Company (the
“Board”); provided, that Executive may accept appointment to serve on
any other board of directors or trustees of any business corporation or any
charitable organization, with the prior written consent of the Board, which
consent shall not be unreasonably withheld, so long as such activities do not
conflict or


 

















 


interfere with the performance of
Executive’s duties hereunder or conflict with or violate Section 9 or 10.


 


3.             Base Salary.  During the Employment Term, the Company shall
pay Executive a base salary at the annual rate of $225,000, payable in regular
installments in accordance with the Company’s normal payroll practices.  Executive shall be entitled to such
increases, but not reductions, in Executive’s base salary, if any, as may be
determined from time to time in the sole discretion of the Board.  Executive’s annual base salary, as in effect
from time to time, is hereinafter referred to as the “Base Salary.”


 


4.             Bonus.


 


a.             Annual Bonus.  With respect to each of the 2010 and 2011
fiscal years during the Employment Term, Executive shall not be eligible to
earn an annual cash bonus award unless otherwise determined by the Board in its
sole and absolute discretion.  With
respect to each full fiscal year during the Employment Term commencing with the
2012 fiscal year, Executive shall be eligible to earn an annual cash bonus
award (an “Annual Bonus”) of up to forty percent (40%) of Executive’s Base
Salary (the “Target Bonus”) based upon the achievement of performance targets
established by the Board within the first ninety (90) days of each applicable
fiscal year.  In addition, Executive shall
be eligible to earn an Annual Bonus in excess of the Target Bonus as outlined
in the bonus plan for that fiscal year upon the Company achieving the goals to
be established by the Board within the first ninety (90) days of each
applicable fiscal year.  The Annual
Bonus, if any, payable hereunder shall be paid within ten (10) business
days following the Company’s receipt of the final audited financial statements
from the Company’s accounting firm in respect of the relevant fiscal year;
provided that Executive is employed by the Company on such payment date.


 


b.             Sign-On
Bonus.  On the Commencement Date, the
Company shall pay Executive in a cash lump sum payment, a sign-on bonus (the
“Sign-On Bonus”) equal to $316,573.73. 
Notwithstanding anything herein to the contrary, Executive agrees that
the Company shall be permitted to use a portion of
the Sign-On Bonus to repay any and all amounts due by Executive under the
Promissory Note, between DynaVox Systems Holdings LLC and Executive, dated as
of December 18, 2009.


 


5.             Employee Benefits.  During the Employment Term, Executive shall
be entitled to participate in the Company’s employee benefit plans (other than
annual bonus and incentive plans) as in effect from time to time (collectively
“Employee Benefits”), on the same basis as those benefits are generally made
available to other executives of the Company; provided that such
benefits shall include no less than three (3) weeks’ vacation.


 


6.             Business Expenses.  During the Employment Term, reasonable
business expenses incurred by Executive in the performance of Executive’s
duties hereunder shall be reimbursed by the Company in accordance with Company
policies.


 


7.             Termination.  The Employment Term and Executive’s
employment hereunder may be terminated by either party at any time and for any
reason; provided that Executive will be required to give the Company at least
60 days’ advance written notice of any 


 


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resignation
of Executive’s employment without Good Reason (as defined in Section 7(c)).  Notwithstanding any other provision of this
Agreement, the provisions of this Section 7 shall exclusively govern
Executive’s rights upon termination of employment with the Company and its
affiliates.


 


a.             By the Company For Cause or By Executive Resignation Without
Good Reason.


 


(i)           The Employment Term and Executive’s employment hereunder may
be terminated by the Company for Cause (as defined below), which termination
shall be effective immediately, or by Executive due to his resignation without
Good Reason.


 


(ii)          For purposes of this Agreement, “Cause” shall mean


 


(A)          Executive’s
indictment for a felony or a crime involving moral turpitude, which in the
reasonable judgment of the Board has materially interfered with the ability of
Executive to perform his duties hereunder or has caused significant harm to the
Company or any of its affiliates or their respective businesses;


 


(B)           Executive’s
conviction of a felony or a crime involving moral turpitude or a plea of guilty
or nolo contendere involving such a crime;


 


(C)           Executive’s
commission of an act of fraud or embezzlement or malfeasance or willful
misconduct in the performance of his duties hereunder;


 


(D)          Executive’s
violation of written company policies regarding employment, including without
limitation substance abuse, sexual harassment and discrimination, which
violation has materially interfered with the ability of Executive to perform
his duties hereunder or has caused significant harm to the Company or any of
its affiliates or their respective businesses, but excluding any violation
which results from an unintentional act or which results from an intentional
act which Executive did not know would constitute such a violation (unless
Executive reasonably should have known that such action could constitute such a
violation);


 


(E)           Willful and
repeated failure by Executive to comply with the reasonable directives of the
CEO consistent with Executive’s duties hereunder, provided Executive
does not cure such failure within 30 days after receipt from the Company of
written notice specifying the failure; or


 


(F)           Executive’s
material breach of any of the provisions of this Agreement or any other
agreement he has entered into with the Company or any of its stockholders or
affiliates; provided, Executive does not cure such breach within 30 days
after receipt from the Company of written notice specifying the exact nature of
such breach.


 


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(iii)         If Executive’s employment is terminated by the Company for
Cause or if Executive resigns without Good Reason, Executive shall be entitled
to receive:


 


(A)          accrued, but
unpaid Base Salary, earned through the date of termination, payable in
accordance with the Company’s usual payment practices;


 


(B)           any Annual
Bonus earned but unpaid as of the date of termination in respect of the
immediately preceding fiscal year, paid in accordance with Section 4(a) (except
to the extent payment is otherwise deferred pursuant to any applicable deferred
compensation arrangement with the Company);


 


(C)           reimbursement,
within sixty (60) days following submission by Executive to the Company of
appropriate supporting documentation, for any unreimbursed business expenses
properly incurred by Executive in accordance with the Company’s policies prior
to the date of Executive’s termination of employment; provided that claims for
such reimbursement (accompanied by appropriate supporting documentation) are
submitted to the Company within ninety (90) days following the date of Executive’s
termination of employment; and


 


(D)          such fully
vested and non-forfeitable Employee Benefits, if any, as to which Executive may
be entitled under the employee benefit plans of the Company (the amounts
described in clauses (A) through (D) hereof being referred to as the
“Accrued Rights”).


 


Following
such termination of Executive’s employment by the Company for Cause or
resignation by Executive without Good Reason, except as set forth in this Section 7(a)(iii),
Executive shall have no further rights to any compensation or any other
benefits under this Agreement.


 


b.             Disability or Death.


 


(i)           The Employment Term and Executive’s employment hereunder
shall terminate upon Executive’s death and may be terminated by the Company if
Executive becomes physically or mentally incapacitated and is therefore unable
for a period of six (6) consecutive months or for an aggregate of nine (9) months
in any twenty-four (24) consecutive month period to perform Executive’s duties
(such incapacity is hereinafter referred to as “Disability”).


 


(ii)          Upon termination of Executive’s employment hereunder for
either Disability or death, Executive or Executive’s estate (as the case may
be) shall be entitled to receive:


 


(A)          the Accrued
Rights;


 


(B)           subject to
Executive’s or the estate of Executive’s, as applicable, execution, delivery
and non-revocation of a general release of claims in favor of the Company and
its affiliates in a form prescribed by the Company (the “Release”) within 45
days following the termination date, continued payment of 


 


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the
Base Salary in accordance with the Company’s normal payroll practices until
twelve (12) months after the date of such termination (such amounts, the
“Death/Disability Payments”).  The Death/Disability
Payments shall commence on the earlier to occur of (i) the date on which
the Release is executed and delivered, without revocation, as permitted by
applicable law and (ii) the 60th day following
Executive’s termination of employment (with payments in arrears from the
termination date); and


 


(C)           subject to
Executive’s or the estate of Executive’s, as applicable, execution, delivery
and non-revocation of the Release within 45 days following the termination
date, a pro rata portion of the Annual Bonus, if any, that Executive would have
otherwise been entitled to receive pursuant to Section 4(a) hereof in
respect of such fiscal year had Executive’s employment not terminated, based
upon the percentage of the fiscal year that shall have elapsed through the date
of Executive’s termination of employment, payable when such Annual Bonus would
have otherwise been payable had Executive’s employment not terminated.


 


Following
Executive’s termination of employment due to death or Disability, except as set
forth in this Section 7(b)(ii), Executive shall have no further rights to
any compensation or any other benefits under this Agreement.


 


c.             By the Company Without Cause or Resignation by Executive for
Good Reason.


 


(i)           The Employment Term and Executive’s employment hereunder may
be terminated by the Company without Cause (other than by reason of death or
Disability) or by Executive for Good Reason.


 


(ii)          For purposes of this Agreement, “Good Reason” shall mean,
without Executive’s written consent, (A) the failure of the Company to pay
or cause to be paid Executive’s Base Salary or Annual Bonus, if any, when due
hereunder or failure to provide, in all material respects, the benefits
described in Section 5, (B) any substantial and sustained diminution
in Executive’s position, authority or responsibilities from those described in Section 2
hereof, (C) relocation of the Company’s headquarters more than fifty miles
from the Pittsburgh, Pennsylvania metropolitan area, or (D) a material
breach of this Agreement by the Company; provided that the events
described in clauses (A) through (D) of this Section 7(c)(ii) shall
constitute Good Reason only if the Company fails to cure such event within 30
days after receipt from Executive of written notice of the event which
constitutes Good Reason; provided, further, that, “Good Reason”
shall cease to exist for any event described in this Section 7(c)(ii) on
the 60th day following the later of its occurrence or
Executive’s knowledge thereof, unless Executive has given the Company written
notice of termination prior to such date.


 


(iii)         If Executive’s employment is terminated by the Company
without Cause (other than by reason of death or Disability) or if Executive
resigns for Good Reason, Executive shall be entitled to receive:


 


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(A)          the Accrued
Rights;


 


(B)           subject to (x) Executive’s
continued compliance with the provisions of Sections 9 and 10 and (y) Executive’s
execution, delivery and non-revocation of the Release within 45 days following
the termination date, continued payment of the Base Salary in accordance with
the Company’s normal payroll practices until twelve (12) months after the date
of such termination (such amounts, the “Salary Continuation Payments”); provided
that the aggregate amount described in this clause (B) shall be reduced by
the present value of any other cash severance or termination benefits payable
to Executive under any other plans, programs or arrangements of the Company or
its affiliates. The Salary Continuation Payments shall commence on the earlier
to occur of (i) the date on which the Release is executed and delivered,
without revocation, as permitted by applicable law and (ii) the 60th day following Executive’s termination of
employment (with payments in arrears from the termination date);


 


(C)           subject to
Executive’s execution, delivery and non-revocation of the Release within 45
days following the termination date, a pro rata portion of the Annual Bonus, if
any, that Executive would have otherwise been entitled to receive pursuant to Section 4(a) hereof
in respect of such fiscal year had Executive’s employment not terminated, based
upon the percentage of the fiscal year that shall have elapsed through the date
of Executive’s termination of employment, payable when such Annual Bonus would
have otherwise been payable had Executive’s employment not terminated; and


 


(D)          subject to
Executive’s execution, delivery and non-revocation of the Release within 45
days following the termination date, continued medical and dental coverage for
a period of twelve (12) months following the date of such termination, provided
that payments for such coverage by Executive shall be consistent with the
payments required by other senior executives for such coverage at that time. In
order to facilitate such coverage, Executive and his spouse and dependents, as
applicable, in accordance with the Company’s policies in effect at the time of
Executive’s termination, shall agree to elect continuation coverage in
accordance with the provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1986, as amended (“COBRA”).


 


Following
Executive’s termination of employment by the Company without Cause (other than
by reason of Executive’s death or Disability) or by Executive for Good Reason,
except as set forth in this Section 7(c)(iii), Executive shall have no
further rights to any compensation or any other benefits under this Agreement.


 


d.             Expiration of Employment Term.  In the event either party elects not to
extend the Employment Term pursuant to Section 1, unless Executive’s
employment is earlier terminated pursuant to paragraphs (a), (b) or (c) of
this Section 7, Executive’s termination of employment hereunder (whether
or not Executive continues as an employee of the Company thereafter) shall be
deemed to occur on the close of business on the day immediately preceding the
next scheduled Extension Date and Executive shall be entitled to receive the
Accrued Rights.


 


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Following
such termination of Executive’s employment hereunder as a result of either
party’s election not to extend the Employment Term, except as set forth in this
Section 7(d), Executive shall have no further rights to any compensation
or any other benefits under this Agreement.


 


Unless the parties otherwise agree
in writing, continuation of Executive’s employment with the Company beyond the
expiration of the Employment Term shall be deemed an employment at-will and
shall not be deemed to extend any of the provisions of this Agreement and
Executive’s employment may thereafter be terminated at will by either Executive
or the Company; provided that the provisions of Sections 9, 10 and 11 of
this Agreement shall survive any termination of this Agreement or Executive’s
termination of employment hereunder.


 


e.             Notice of Termination.  Any purported termination of employment by
the Company or by Executive (other than due to Executive’s death) shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section 14(h) hereof. For purposes of this Agreement,
a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.


 


8.             Change of Control.


 


a.             At the Company’s request,
Executive will agree to remain employed by the Company for up to one hundred
and eighty (180) days following a Change of Control.


 


For purposes of this Agreement, “Change
of Control” means (i) the sale or disposition, in one or a series of
related transactions, of all or substantially all of the assets of the Company
to any “person” or “group” (as such terms are defined in Sections 13(d)(3) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) other than (x) Vestar Capital Partners IV, L.P. (“Vestar”) or any
of its “affiliates” (as defined in Rule 501(b) of the Securities Act
of 1933, as amended) or (y) any employee benefit plan (or trust forming a
part thereof) maintained by the Company or any of its “affiliates” or any
corporation or other “person” of which a majority of the voting power of its
voting equity securities and equity interest is owned, directly or indirectly,
by the Company; provided that, for the avoidance of doubt, a sale of the
Mayer-Johnson business shall not constitute a Change of Control hereunder, (ii) any
“person” or “group”, other than (x) Vestar or any of its “affiliates” or (y) any
employee benefit plan (or trust forming a part thereof) maintained by the
Company or any of its “affiliates” or any corporation or other “person” of
which a majority of the voting power of its voting equity securities and equity
interest is owned, directly or indirectly, by the Company, is or becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act), directly or indirectly, of more than 50% of the total voting power of the
voting stock of the Company, including by way of purchase, merger,
consolidation or otherwise, or (iii) during any
period of two (2) consecutive years, individuals who at the beginning of
such period constituted the Board (together with any new directors whose
election by such Board or whose nomination for election by the stockholders of
the Company was approved by a vote of a majority of the directors of the
Company, then still in office, who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to 


 


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constitute a majority of the Board, then in office; provided that, any director appointed or elected to the
Board to avoid or settle a threatened or actual proxy contest shall in no event
be deemed to be an individual referred to in this clause (iii).


 


b.             Notwithstanding
anything herein to the contrary, subject to Executive (x) complying with
his obligations under Section 8(a) above and (y) providing
written notice to the Company within the sixty (60) day period following a
Change of Control of his intention to terminate employment, if Executive’s
employment is terminated by Executive without Good Reason subsequent to the one
hundred and eighty (180) day period following a Change of Control but prior to
the 270th day following a Change of Control, Executive shall be entitled to
receive:


 


(A)          the Accrued
Rights;


 


(B)           subject to (x) Executive’s
continued compliance with the provisions of Sections 9 and 10 and (y) Executive’s
execution, delivery and non-revocation of the Release within 45 days following
the termination date, continued payment of the Base Salary in accordance with
the Company’s normal payroll practices until twelve (12) months after the date
of such termination (such amounts, the “CoC Continuation Payments”); provided
that the aggregate amount described in this clause (B) shall be reduced by
the present value of any other cash severance or termination benefits payable
to Executive under any other plans, programs or arrangements of the Company or
its affiliates. The CoC Continuation Payments shall commence on the earlier to
occur of (i) the date on which the Release is executed and delivered,
without revocation, as permitted by applicable law and (ii) the 60th day following Executive’s termination of
employment (with payments in arrears from the termination date);


 


(C)           subject to
Executive’s execution, delivery and non-revocation of the Release within 45
days following the termination date, a pro rata portion of the Annual Bonus, if
any, that Executive would have otherwise been entitled to receive pursuant to Section 4(a) hereof
in respect of such fiscal year had Executive’s employment not terminated, based
upon the percentage of the fiscal year that shall have elapsed through the date
of Executive’s termination of employment, payable when such Annual Bonus would
have otherwise been payable had Executive’s employment not terminated; and


 


(D)          subject to
Executive’s execution, delivery and non-revocation of the Release within 45
days following the termination date, continued medical and dental coverage for
a period of twelve (12) months following the date of such termination, provided
that payments for such coverage by Executive shall be consistent with the
payments required by other senior executives for such coverage at that time. In
order to facilitate such coverage, Executive and his spouse and dependents, as
applicable, in accordance with the Company’s policies in effect at the time of
Executive’s termination, shall agree to elect continuation coverage in
accordance with the provisions of COBRA.


 


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Following
Executive’s termination of employment by Executive without Good Reason
following a Change of Control, except as set forth in this Section 8,
Executive shall have no further rights to any compensation or any other
benefits under this Agreement.


 


9.             Non-Competition.


 


a.             Executive acknowledges and recognizes the highly competitive
nature of the businesses of the Company and its affiliates and accordingly
agrees as follows:


 


(1)   During the Employment Term and, for a period of two
years following the date Executive ceases to be employed by the Company for any
reason (the “Restricted Period”), Executive will not, whether on Executive’s
own behalf or on behalf of or in conjunction with any person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise whatsoever (“Person”), directly or indirectly
solicit or assist in soliciting in competition with the Company, the business
of any client or prospective client:


 


(i)    with whom Executive had
personal contact or dealings on behalf of the Company during the one year
period preceding Executive’s termination of employment;


 


(ii)   with whom employees
reporting to Executive have had personal contact or dealings on behalf of the
Company during the one year immediately preceding the Executive’s termination
of employment; or


 


(iii)  for whom
Executive had direct or indirect responsibility during the one year immediately
preceding Executive’s termination of employment.


 


(2)   During the Restricted Period, Executive will not
directly or indirectly:


 


(i)    engage in any business that
competes with the Company or its affiliates (including, without limitation,
businesses which the Company or its affiliates have specific plans to conduct
in the future and as to which Executive is aware of such planning) in the area
of assistive technology in North America or Europe (a “Competitive Business”);


 


(ii)   enter the employ of , or
render any services to, any Person (or any division or controlled or
controlling affiliate of any Person) who or which engages in a Competitive
Business;


 


(iii)  acquire a
financial interest in, or otherwise become actively involved with, any
Competitive Business, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, trustee or consultant; or


 


(iv)  interfere with, or attempt
to interfere with, business relationships (whether formed before, on or after
the date of this Agreement) between the Company or any of its affiliates and
customers, clients, suppliers partners, members or investors of the Company or
its affiliates.


 


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(3)   Notwithstanding anything to the contrary in this
Agreement, Executive may, directly or indirectly own, solely as an investment,
securities of any Person engaged in the business of the Company or its
affiliates (including a Competitive Business) which are publicly traded on a
national or regional stock exchange or on the over-the-counter market if
Executive (i) is not a controlling person of, or a member of a group which
controls, such person and (ii) does not, directly or indirectly, own 5% or
more of any class of securities of such Person.


 


(4)   During the Restricted Period, Executive will not,
whether on Executive’s own behalf or on behalf of or in conjunction with any
Person, directly or indirectly:


 


(i)    solicit or encourage any
employee of the Company or its affiliates to leave the employment of the
Company or its affiliates; or


 


(ii)   hire any such employee who
was employed by the Company or its affiliates as of the date of Executive’s
termination of employment with the Company or who left the employment of the
Company or its affiliates coincident with, or within one year prior to or
after, the termination of Executive’s employment with the Company.


 


(5)   During the Restricted Period, Executive will not,
directly or indirectly, solicit or encourage to cease to work with the Company
or its affiliates any consultant then under contract with the Company or its
affiliates.


 


(6)   During
the Employment Term and at all times thereafter, Executive agrees not to engage
in any act or make any public statement that is intended, or may reasonably be
expected, to harm the reputation, business, prospects or operations of the
Company or any of its affiliates.  The
Company agrees to use reasonable efforts to instruct its employees not to
engage in any act that is intended, or may reasonably be expected, to harm the
reputation of Executive.


 


b.             It is expressly understood and agreed that although
Executive and the Company consider the restrictions contained in this Section 9
to be reasonable, if a final judicial determination is made by a court of
competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against Executive,
the provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be
enforceable.  Alternatively, if any court
of competent jurisdiction finds that any restriction contained in this
Agreement is unenforceable, and such restriction cannot be amended so as to
make it enforceable, such finding shall not affect the enforceability of any of
the other restrictions contained herein.


 


The
provisions of this Section 9 shall survive the termination of Executive’s
employment for any reason.


 


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10.           Confidentiality;
Intellectual Property.


 


a.             Confidentiality.


 


(i)           Executive will not at any time (whether during or after
Executive’s employment with the Company) (x) retain or use for the
benefit, purposes or account of Executive or any other Person except in
connection with the performance of Executive’s duties for the Company
hereunder; or (y) disclose, divulge, reveal, communicate, share, transfer
or provide access to any Person outside the Company (other than its
professional advisers who are bound by confidentiality obligations), any
non-public, proprietary or confidential information —including without
limitation trade secrets, know-how, research and development, software,
databases, inventions, processes, formulae, technology, designs and other intellectual
property, information concerning finances, investments, profits, pricing,
costs, products, services, vendors, customers, clients, partners, investors,
personnel, compensation, recruiting, training, advertising, sales, marketing,
promotions, government and regulatory activities and approvals — concerning the
past, current or future business, activities and operations of the Company, its
subsidiaries or affiliates and/or any third party that has disclosed or
provided any of same to the Company on a confidential basis (“Confidential
Information”) without the prior written authorization of the Board.


 


(ii)          “Confidential Information” shall not include any information
that is (a)  generally known to the industry or the public other than as a
result of Executive’s breach of this covenant or any breach, to Executive’s
knowledge, of other confidentiality obligations by third parties; (b) made
legitimately available to Executive by a third party without breach of any
confidentiality obligation; or (c) required by law to be disclosed; provided
that Executive shall give prompt written notice to the Company of such
requirement, disclose no more information than is so required, and cooperate
with any attempts by the Company to obtain a protective order or similar
treatment.


 


(iii)         Except as required by law, Executive will not disclose to
anyone, other than Executive’s immediate family and legal or financial
advisors, the existence or contents of this Agreement; provided that
Executive may disclose to any prospective future employer the provisions of
Sections 9 and 10 of this Agreement provided they agree to maintain the
confidentiality of such terms.


 


(iv)        Upon termination of Executive’s employment with the Company
for any reason, Executive shall (x) cease and not thereafter commence use
of any Confidential Information or intellectual property (including, without
limitation, any patent, invention, copyright, trade secret, trademark, trade
name, logo, domain name or other source indicator) owned or used by the Company,
its subsidiaries or affiliates; (y) immediately destroy, delete, or return
to the Company, at the Company’s option, all originals and copies in any form
or medium (including memoranda, books, papers, plans, computer files, letters
and other data) in Executive’s possession or control (including any of the
foregoing stored or located in Executive’s office, home, laptop or other
computer, whether or not Company property) that contain Confidential
Information or otherwise relate to the business of the Company or any of its
affiliates and subsidiaries, except that Executive may retain (i) only
those portions of any personal notes, notebooks and diaries that do not contain
any Confidential Information and (ii) 


 


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any
Confidential Information Executive reasonable believes is required in relation
to any dispute regarding Executive’s termination of employment; and (z) notify
and fully cooperate with the Company regarding the delivery or destruction of
any other Confidential Information of which Executive is or becomes aware.


 


b.             Intellectual Property.


 


(i)           If Executive creates, invents, designs, develops,
contributes to or improves any works of authorship, inventions, intellectual
property, materials, documents or other work product (including, without
limitation, research, reports, software, databases, systems, applications,
presentations, textual works, content or audiovisual materials), either alone
or with third parties, at any time during Executive’s employment by the Company
and within the scope of such employment and/or with the use of any the Company
resources (“Company Works”), Executive shall promptly and fully disclose same
to the Company and hereby irrevocably assigns, transfers and conveys, to the maximum
extent permitted by applicable law, all rights and intellectual property rights
therein (including rights under patent, industrial property, copyright,
trademark, trade secret, unfair competition and related laws) to the Company to
the extent ownership of any such rights does not vest originally in the
Company.


 


(ii)          Executive agrees to keep and maintain adequate and current
written records (in the form of notes, sketches, drawings, and any other form
or media requested by the Company) of all Company Works.  The records will be available to and remain
the sole property and intellectual property of the Company at all times.


 


(iii)         Executive shall take all requested actions and execute all
requested documents (including any licenses or assignments required by a
government contract) at the Company’s expense (but without further
remuneration) to assist the Company in validating, maintaining, protecting,
enforcing, perfecting, recording, patenting or registering any of the Company’s
rights in the Company Works.


 


(iv)        Executive shall not improperly use for the benefit of, bring
to any premises of, divulge, disclose, communicate, reveal, transfer or provide
access to, or share with the Company any confidential, proprietary or
non-public information or intellectual property relating to a former employer
or other third party without the prior written permission of such third
party.  Executive hereby indemnifies,
holds harmless and agrees to defend the Company and its officers, directors,
partners, employees, agents and representatives from any breach of the
foregoing covenant.  Executive shall
comply with all relevant policies and guidelines of the Company, including
regarding the protection of confidential information and intellectual property
and potential conflicts of interest. 
Executive acknowledges that the Company may amend any such policies and
guidelines from time to time, and that Executive remains at all times bound by
their most current version.


 


(v)         The provisions of Section 10 shall survive the termination
of Executive’s employment for any reason.


 


11.           Specific Performance.  Executive acknowledges and agrees that the
Company’s remedies at law for a breach or threatened breach of any of the
provisions of 


 


12

















 


Section 9
or Section 10 would be inadequate and the Company would suffer irreparable
damages as a result of such breach or threatened breach.  In recognition of this fact, Executive agrees
that, in the event of such a breach or threatened breach, in addition to any
remedies at law, the Company, without posting any bond, shall be entitled to
cease making any payments or providing any benefit otherwise required by this
Agreement (other than any payments or benefits which have been earned and
vested) and obtain equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available.


 


12.           Compliance with IRC
Section 409A.  This Agreement is intended to comply with
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)
and will be interpreted accordingly. 
References under this Agreement to Executive’s termination of employment
shall be deemed to refer to the date upon which Executive has experienced a
“separation from service” within the meaning of Section 409A of the
Code.  Notwithstanding anything herein to
the contrary, (i) if at the time of Executive’s separation from service
with the Company or any of its affiliates Executive is a “specified employee”
as defined in Section 409A of the Code (and any related regulations or
other pronouncements thereunder), and the deferral of the commencement of any
payments or benefits otherwise payable hereunder as a result of such separation
from service is necessary in order to prevent any accelerated or additional tax
under Section 409A of the Code, then the Company will defer the
commencement of the payment of any such payments or benefits hereunder (without
any reduction in such payments or benefits ultimately paid or provided to
Executive) until the date that is six months following Executive’s separation
from service (or the earliest date as is permitted under Section 409A of
the Code without any accelerated or additional tax), at which point all
payments deferred pursuant to this Section 12 shall be paid to Executive
in a lump sum and (ii) if any other payments of money or other benefits
due to Executive hereunder could cause the application of an accelerated or
additional tax under Section 409A of the Code, such payments or other
benefits shall be deferred if deferral will make such payment or other benefits
compliant under Section 409A of the Code, or otherwise such payment or
other benefits shall be restructured, to the extent possible, in a manner,
determined by the Board, that is reasonably expected not to cause such an
accelerated or additional tax.  The
Company shall consult with Executive in good faith regarding the implementation
of the provisions of this Section 12; provided that neither the Company
nor any of its employees or representatives shall have any liability to
Executive with respect to thereto. To the extent any reimbursements or in-kind
benefits due to Executive under this Agreement constitute “deferred
compensation” under Section 409A of the Code, any such reimbursements or
in-kind benefits shall be paid to Executive in a manner consistent with
Treasury Regulation Section 1.409A-3(i)(1)(iv).  For purposes of Section 409A of the
Code, each payment made under this Agreement shall be designated as a “separate
payment” within the meaning of Section 409A of the Code.


 


14.           Miscellaneous.


 


a.             Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Pennsylvania, without
regard to conflicts of laws principles thereof.


 


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b.             Arbitration.  Except as provided in Section 11 of this
Agreement, any controversy or claim arising out of or relating to this
Agreement or Executive’s employment with the Company or the termination thereof
shall be resolved by binding confidential arbitration, to be held in
Pittsburgh, Pennsylvania, in accordance with the Employee Dispute Resolution Rules of
the American Arbitration Association. 
Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.


 


c.             Entire Agreement/Amendments.  This Agreement contains the entire
understanding of the parties with respect to the employment of Executive by the
Company.  There are no restrictions,
agreements, promises, warranties, covenants or undertakings between the parties
with respect to the subject matter herein other than those expressly set forth
herein.  This Agreement may not be altered,
modified, or amended except by written instrument signed by the parties hereto.


 


d.             No Waiver.  The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party’s rights or deprive such party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement.


 


e.             Severability.  In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.


 


f.              Assignment.  This Agreement, and all of Executive’s rights
and duties hereunder, shall not be assignable or delegable by Executive.  Any purported assignment or delegation by
Executive in violation of the foregoing shall be null and void ab initio and of no force and effect.  This Agreement may be assigned by the Company
to a person or entity which is a majority owned affiliate of the Company that
is transferred substantially all of the business operations of the
Company.  Upon such assignment, the
rights and obligations of the Company hereunder shall become the rights and
obligations of such affiliate or successor person or entity.


 


g.             Successors; Binding Agreement.  This Agreement shall inure to the benefit of
and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.


 


h.             Notice.  For the purpose of this Agreement, notices
and all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered by hand or overnight
courier to the respective addresses set forth below in this Agreement, or to
such other address as either party may have furnished to the other in writing
in accordance herewith, except that notice of change of address shall be
effective only upon receipt.


 


14

















 


If to the Company:


 


Dynavox Systems LLC


2100 Wharton Street


Suite 400


Pittsburgh, PA 15203


Attention: Chief
Operating Officer


 


With a copy to:


 


Vestar Capital Partners
IV, L.P.


245 Park Avenue


41st Floor


New York, New York 10167


Attention: General
Counsel


 


If to Executive:


 


To the most recent
address on file with the Company.


 


i.              No Set Off; Mitigation.  Executive shall not be required to mitigate
damages with respect to the termination of his employment under this Agreement
by seeking other employment or otherwise, and there shall be no offset against
amounts due Executive under this Agreement on account of subsequent
employment.  Additionally, amounts owed
to Executive under this Agreement shall not be offset by any claims the Company
may have against Executive.


 


j.              Executive Representation.  Executive hereby represents to the Company
that the execution and delivery of this Agreement by Executive and the Company
and the performance by Executive of Executive’s duties hereunder shall not
constitute a breach of, or otherwise contravene, the terms of any employment
agreement or other agreement or policy to which Executive is a party or
otherwise bound.


 


k.             Prior Agreements.  This Agreement supersedes all prior
agreements and understandings (including verbal agreements) between Executive
and the Company and/or its affiliates regarding the terms and conditions of
Executive’s employment with the Company and/or its affiliates including,
without limitation, the Prior Agreement.


 


l.              Cooperation.  Executive shall provide Executive’s
reasonable cooperation in connection with any action or proceeding (or any
appeal from any action or proceeding) with a third party which relates to
events occurring during Executive’s employment hereunder, subject to
reimbursement by the Company for all reasonable expenses incurred in connection
therewith.  This provision shall survive
any termination of this Agreement.


 


m.            Withholding Taxes.  The Company may withhold from any amounts
payable under this Agreement such Federal, state and local taxes as may be
required to be withheld pursuant to any applicable law or regulation, which
amounts will be paid over by the Company to the appropriate taxing authorities
on a timely basis.


 


15

















 


n.             Counterparts.  This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.


 


(Remainder of page intentionally
left blank)


 


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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.


 


 


	
  DYNAVOX
  SYSTEMS LLC

  	
   

  	
  KENNETH
  D. MISCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  EDWARD L. DONNELLY, JR.

  	
   

  	
  /s/
  KENNETH D. MISCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:
  Edward L. Donnelly, Jr.

  	
   

  	
   

  
	
  Title:
  Chief Executive Officer

  	
   

  	
   

  



 


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