Exhibit 10.4


 





 


 


REGISTRATION
RIGHTS AGREEMENT


 


 


OF


 


 


DYNAVOX INC.


 


 


Dated as of April 21, 2010


 




 





 

















 


Table of Contents


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I

  
	
  DEFINITIONS AND OTHER
  MATTERS

  
	
   

  
	
  Section 1.1

  	
  Definitions

  	
  1

  
	
  Section 1.2

  	
  Definitions Generally

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
  REGISTRATION RIGHTS

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Exchange Registration

  	
  5

  
	
  Section 2.2

  	
  Demand Registration

  	
  5

  
	
  Section 2.3

  	
  Incidental Registration

  	
  7

  
	
  Section 2.4

  	
  Holdback Agreements

  	
  9

  
	
  Section 2.5

  	
  Registration Procedures

  	
  10

  
	
  Section 2.6

  	
  Indemnification by the Company

  	
  13

  
	
  Section 2.7

  	
  Indemnification by Registering Covered Persons

  	
  14

  
	
  Section 2.8

  	
  Conduct of Indemnification Proceedings

  	
  15

  
	
  Section 2.9

  	
  Contribution

  	
  15

  
	
  Section 2.10

  	
  Participation in Public Offering

  	
  16

  
	
  Section 2.11

  	
  Other Indemnification

  	
  16

  
	
  Section 2.12

  	
  Cooperation by the Company

  	
  16

  
	
  Section 2.13

  	
  Parties in Interest

  	
  17

  
	
  Section 2.14

  	
  Acknowledgement Regarding the Company

  	
  17

  
	
  Section 2.15

  	
  Mergers,
  Recapitalizations, Exchanges or Other Transactions Affecting Registrable
  Securities

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Term of the Agreement; Termination of Certain Provisions

  	
  17

  
	
  Section 3.2

  	
  Assignment; Successors

  	
  18

  
	
  Section 3.3

  	
  Governing Law

  	
  18

  
	
  Section 3.4

  	
  Severability

  	
  18

  
	
  Section 3.5

  	
  Entire Agreement

  	
  18

  
	
  Section 3.6

  	
  Successors and Assigns; Certain Transferees Bound Hereby

  	
  18

  
	
  Section 3.7

  	
  Counterparts

  	
  18

  
	
  Section 3.8

  	
  Remedies

  	
  18

  
	
  Section 3.9

  	
  Notices

  	
  19

  
	
  Section 3.10

  	
  Governing Law

  	
  20

  
	
  Section 3.11

  	
  Specific Performance

  	
  20

  
	
  Section 3.12

  	
  Descriptive Headings

  	
  20

  
	
   

  	
   

  	
   

  
	
  Appendix A

  	
  Covered Person
  Questionnaire

  	
   

  



 


i

















 


REGISTRATION RIGHTS
AGREEMENT


 


This REGISTRATION RIGHTS
AGREEMENT (including Appendix A hereto, as such Appendix A may be amended from
time to time pursuant to the provisions hereof, this “Agreement”), is
made and entered into as of April 21, 2010, by and among DynaVox Inc., a
Delaware corporation (the “Company”), and the Covered Persons (defined
below) from time to time party hereto.


 


WHEREAS, the Covered Persons
are holders of Holdings Units (defined below), which, subject to certain
restrictions and requirements, are exchangeable at the option of the holder
thereof for shares of the Company’s Class A common stock, par value $0.01
per share (the “Class A Common Stock”); and


 


WHEREAS, the Company desires
to provide the Covered Persons with registration rights with respect to Class A
Common Stock underlying their Holdings Units and certain other shares of Class A
Common Stock they may otherwise hold from time to time.


 


NOW, THEREFORE, in
consideration of the premises and of the mutual agreements, covenants and
provisions herein contained, the parties hereto agree as follows:


 


ARTICLE
I

DEFINITIONS AND OTHER MATTERS


 


Section 1.1             Definitions. Capitalized terms used
in this Agreement without other definition shall, unless expressly stated
otherwise, have the meanings specified in this Section 1.1:


 


“Beneficial Owner”
has the meaning set forth in Rule 13d-3 under the Exchange Act.


 


“Board” means the
Board of Directors of the Company.


 


“Class A Common
Stock” has the meaning ascribed to such term in the Recitals.


 


“Company” has the
meaning ascribed to such term in the preamble.


 


“Covered Holdings Units”
means, with respect to a Covered Person, such Covered Person’s Holdings Units.


 


“Covered Person”
means those persons, other than the Company, who shall from time to time be
parties to this Agreement in accordance with the terms hereof (including
Permitted Transferees).


 


“Demand Registration”
has the meaning ascribed to such term in Section 2.2(a).


 


“Exchange Act” means
the U.S. Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.


 

















 


“Exchange Agreement”
means the Exchange Agreement, dated as of or about the date hereof among the
Company, Holdings and holders of Holdings Units from time to time party
thereto, as amended from time to time.


 


“Exchange Registration”
has the meaning ascribed to such term in Section 2.1(a).


 


“FINRA” means the
Financial Industry Regulatory Authority, Inc.


 


“Follow-on Holdback
Period” has the meaning ascribed to such term in Section 2.4(a).


 


“Governmental Authority”
means any national, local or foreign (including U.S. federal, state or local)
or supranational (including European Union) governmental, judicial,
administrative or regulatory (including self-regulatory) agency, commission,
department, board, bureau, entity or authority of competent jurisdiction.


 


“Holdback Extension”
has the meaning ascribed to such term in Section 2.4(a).


 


“Holdings” means
DynaVox Systems Holdings LLC, a Delaware limited liability company.


 


“Holdings LLC Agreement”
means the Third Amended and Restated Limited Liability Company Agreement of
Holdings dated as of or about the date hereof, as it may be amended,
supplemented or restated from time to time.


 


“Holdings Unit” has
the meaning given to such term in the Exchange Agreement.


 


“Incidental Registration”
has the meaning ascribed to such term in Section 2.3(a).


 


“Indemnified Parties”
has the meaning ascribed to such term in Section 2.6.


 


“IPO Holdback Period”
has the meaning ascribed to such term in Section 2.4(a).


 


“Other Registration
Rights” has the meaning ascribed to such term in Section 2.2(a)(iii).


 


“Permitted Transferee”
means any transferee of a Holdings Unit after the date hereof the transfer of
which was permitted by the Holdings LLC Agreement.


 


“Priority Right” has
the meaning ascribed to such term in Section 2.2(c).


 


“Public Offering”
means an underwritten public offering pursuant to an effective registration
statement under the Securities Act, other than pursuant to a registration
statement on Form S-4 or Form S-8 or any similar or successor form.


 


“Registering Covered
Person” has the meaning ascribed to such term in Section 2.5(a).


 


“Registrable Securities”
means shares of Class A Common Stock that may be delivered in exchange for
Holdings Units and other shares of Class A Common Stock otherwise held by
Covered Persons from time to time. For purposes of this Agreement, a Person
shall be deemed to be a holder of Registrable Securities and such Registrable
Securities shall be deemed to be in


 


2

















 


existence
whenever such Person has the right to acquire such Registrable Securities (upon
conversion, exchange or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise
of such right other than vesting), whether or not such acquisition has actually
been effected, and such Person shall be entitled to exercise the rights of a
holder of Registrable Securities hereunder. 
For purposes of this Agreement, as to any particular Covered Person,
Registrable Securities shall cease to be Registrable Securities when and to the
extent that (i) such Registrable Securities (x) have been sold in a
transaction registered under the Securities Act, (y) have been sold  pursuant to Rule 144 under the
Securities Act (or any successor provision then in effect) or (z) in the
case of any Registrable Securities that are not “restricted securities” for
purposes of Rule 144 under the Securities Act, have been sold by a Person
who is not an “affiliate” of the Company for purposes of Rule 144 in
reliance upon Section 4(1) of the Securities Act, (ii) the
holder of such Registrable Securities is not an “affiliate” of the Company for
purposes of Rule 144 and is eligible to sell all Registrable Securities
held by such person pursuant to Rule 144(b)(1) under the Securities
Act in any three-month period without limitation under any of the other
requirements of Rule 144, (iii) in the case of any Registrable
Securities that are not “restricted securities” for purposes of Rule 144
under the Securities Act, the Covered Person is not an “affiliate” of the
Company for purposes of Rule 144 and is eligible to publicly sell such
securities in reliance upon Section 4(1) of the Securities Act (or
any successor provision then in effect), provided that such Covered Person,
together with its affiliates, owns less than 3% of the then outstanding Class A
Common Stock on a fully-diluted basis (including giving effect to the exchange
of all Holdings Units held by Persons other than the Company for shares of Class A
Common Stock); or (iv) such Registrable Securities cease to be outstanding
(or issuable upon exchange).


 


“Registration Expenses”
means any and all expenses incident to the performance of or compliance with
any registration or marketing of securities, including all (i) SEC and
securities exchange registration and filing fees, and all other fees and
expenses payable in connection with the listing of securities on any securities
exchange or automated interdealer quotation system, (ii) fees and expenses
of compliance with any securities or “blue sky” laws (including reasonable fees
and disbursements of counsel in connection with “blue sky” qualifications of
the securities registered), (iii) expenses in connection with the
preparation, printing, mailing and delivery of any registration statements,
prospectuses and other documents in connection therewith and any amendments or
supplements thereto, (iv) security engraving and printing expenses, (v) internal
expenses of the Company and Holdings (including, without limitation, all
salaries and expenses of the officers and employees of the Company or Holdings
performing legal or accounting duties), (vi) reasonable fees and
disbursements of counsel for the Company or Holdings and customary fees and
expenses for independent certified public accountants retained by the Company
or Holdings (including the expenses relating to any comfort letters or costs
associated with the delivery by independent certified public accountants of any
comfort letters requested pursuant to Section 2.5(i)), (vii) reasonable
fees and expenses of any special experts retained by the Company or Holdings in
connection with such registration, (viii) reasonable fees, out-of-pocket
costs and expenses of the Covered Persons, including one counsel for all of the
Covered Persons participating in the offering selected by the Requesting
Holder, (ix) fees and expenses in connection with any review by FINRA of
the underwriting arrangements or other terms of the offering, and all fees and
expenses of any “qualified independent underwriter,” including the fees and
expenses of any counsel thereto, (x) fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but
excluding any underwriting fees, discounts and


 


3

















 


commissions
attributable to the sale of Registrable Securities, (xi) costs of printing and
producing any agreements among underwriters, underwriting agreements, any “blue
sky” or legal investment memoranda and any selling agreements and other
documents in connection with the offering, sale or delivery of the Registrable
Securities, (xii) transfer agents’ and registrars’ fees and expenses and the
fees and expenses of any other agent or trustee appointed in connection with
such offering, (xiii) expenses relating to any analyst or investor
presentations or any “road shows” undertaken in connection with the
registration, marketing or selling of the Registrable Securities, (xiv) fees
and expenses payable in connection with any ratings of the Registrable
Securities, including expenses relating to any presentations to rating agencies
and (xv) all out-of-pocket costs and expenses incurred by the Company, Holdings
or their appropriate officers in connection with their compliance with Section 2.5(m).


 


“Registration Notice”
has the meaning ascribed to such term in Section 2.2(a).


 


“Registration Request”
has the meaning ascribed to such term in Section 2.2(a).


 


“Requesting Holder”
has the meaning ascribed to such term in Section 2.2(a).


 


“SEC” means the
Securities and Exchange Commission.


 


“Securities Act”
means the U.S. Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.


 


“Suspension Period”
has the meaning ascribed to such term in Section 2.5(k).


 


“Vestar” means,
collectively, Vestar Capital Partners IV, L.P., a Delaware limited partnership,
and VCD Investors LLC, a Delaware limited liability company.


 


“Vestar Demand Right”
has the meaning ascribed to such term in Section 2.2(a).


 


Section 1.2             Definitions Generally.  Wherever required by the context of this Agreement, the singular shall
include the plural and vice versa, and the masculine gender shall include the
feminine and neuter genders and vice versa, and references to any agreement,
document or instrument shall be deemed to refer to such agreement, document or
instrument as amended, supplemented or modified from time to time.  When used herein:


 


(a)           the
word “or” is not exclusive;


 


(b)           the
words “including,” “includes,” “included” and “include” are deemed to be
followed by the words “without limitation”;


 


(c)           the
terms “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular section, paragraph
or subdivision;


 


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(d)           the
word “person” means any individual, corporation, limited liability company,
trust, joint venture, association, company, partnership or other legal entity
or a government or any department or agency thereof or self-regulatory
organization; and


 


(e)           all
section, paragraph or clause references not attributed to a particular document
shall be references to such parts of this Agreement, and all exhibit, annex and
schedule references not attributed to a particular document shall be references
to such exhibits, annexes and schedules to this Agreement.


 


ARTICLE
II

REGISTRATION RIGHTS


 


Section 2.1             Exchange Registration.


 


(a)           The Company shall
use its commercially reasonable efforts to file with the SEC prior to the time
that Holdings Units held by Covered Persons become available for exchange for
Common Units pursuant to the terms of the Exchange Agreement, and cause to be
declared effective under the Securities Act by the SEC promptly thereafter, one
or more registration statements (the “Exchange Registration”) covering (i) the
delivery by the Company from time to time to the Covered Persons of all shares
of Class A Common Stock deliverable to the Covered Persons in exchange for
Holdings Units pursuant to the Exchange Agreement or (ii) if the Company
determines that the registration provided for in clause (i) is not
available for any reason, the registration of resale of such shares of Class A
Common Stock by the Covered Persons.


 


(b)           The Company shall be
liable for and pay all Registration Expenses in connection with any Exchange
Registration, regardless of whether such registration is effected.


 


(c)           Upon notice to each Covered Person, the Company may
postpone effecting a registration pursuant to this Section 2.1 for a
reasonable time specified in the notice but not exceeding 60 days (which period
may not be extended or renewed), if (i) the Board shall determine in good
faith that effecting the registration would materially and adversely affect an
offering of securities of the Company the preparation of which had then been
commenced or (ii) the Company is in possession of material non-public
information the disclosure of which during the period specified in such notice
the Board believes in good faith would not be in the best interests of the
Company.


 


Section 2.2             Demand Registration.


 


(a)           Requests
for Registration.  Subject to the
provisions of this Article II, Vestar shall have the right (the “Vestar
Demand Right”) to request registration under the Securities Act of all or
any portion of the Registrable Securities held by Vestar and its affiliates
(referred to herein as the “Requesting Holder”) by delivering a written
notice to the principal business office of the Company, which notice identifies
the Requesting Holder and specifies the number of Registrable Securities to be
included in such registration (the “Registration Request”).  Subject to the restrictions set forth in paragraph


 


5

















 


2.2(d), the Company will give prompt written notice of such
Registration Request (the “Registration Notice”) to all other holders of
Registrable Securities and will thereupon use its best efforts to effect the
registration (a “Demand Registration”) under the Securities Act on any
form available to the Company of:


 


(i)            the
Registrable Securities requested to be registered by the Requesting Holder;


 


(ii)           all
other Registrable Securities of the same type and class which the Company has
received a written request to register within 30 days after the Registration
Notice is given and any securities of the Company proposed to be included in
such registration by the Company for its own account; and


 


(iii)          any
securities of the Company proposed to be included in such registration by the
holders of registration rights granted other than pursuant to this Agreement (“Other
Registration Rights”).


 


(b)           A
registration undertaken by the Company at the request of the Requesting Holder
will not count as a Demand Registration:


 


(i)            if,
pursuant to the Vestar Demand Right, the Requesting Holder fails to register
and sell at least 75% of the Registrable Securities requested to be included in
such registration by it, unless such failure results from any act of, or
failure to act by, the Requesting Holder (provided that if the
Requesting Holder withdraws its Registration Request prior to the time the
registration statement therefore is declared effective and promptly reimburses
the Company for all Registration Expenses incurred by the Company in connection
with effecting such registration, such Registration Request shall not count as
a Demand Registration); or


 


(ii)           if
the Requesting Holder withdraws a Registration Request (A) upon the
determination of the Board to postpone the filing or effectiveness of a
Registration Statement pursuant to Section 2.2(d) or (B) within
ten days of receiving notice from the Company of its intent to exercise its
Priority Right in connection with such registration.


 


(c)           If
the sole or managing underwriter of a Demand Registration advises the Company
in writing that in its opinion the number of Registrable Securities and other
securities requested to be included exceeds the number of Registrable Securities
and other securities which can be sold in such offering without adversely
affecting the distribution of the securities being offered, the price that will
be paid in such offering or the marketability thereof, the Company will include
in such registration the greatest number of (i) Registrable Securities
proposed to be registered by the holders thereof, (ii) securities having
Other Registration Rights that are pari passu with the demand rights granted in
respect of Registrable Securities hereunder proposed to be registered by the
holders thereof and (iii) securities proposed to be registered by the
Company for its own account which in the opinion of such underwriters can be
sold in such offering without


 


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adversely affecting the distribution of the securities being offered,
the price that will be paid in such offering or the marketability thereof,
ratably among the holders of Registrable Securities, the holders of such Other
Registration Rights and the Company, based (A) as between the Company and
such holders requesting registration, on the respective amounts of securities
requested to be registered, and (B) as among the holders requesting
registration (whether the Requesting Holder or otherwise), on the respective
amounts of Registrable Securities (whether requested to be registered pursuant
to Sections 2.1, 2.2 or 2.3) and securities subject to such Other Registration
Rights, as the case may be, held by each such holder; provided, however, that
the Company shall have the right (the “Priority Right”) to receive
priority over all holders of Registrable Securities in any Demand Registration
to be effected under this Section 2.2 with respect to securities that the
Company proposes to include in such registration for its own account by giving
written notice of its election to exercise such Priority Right to the holders
of Registrable Securities requesting registration thereof.


 


(d)           Except
as otherwise provided in this Section 2.2(d), the Company shall be obligated
to effect six Demand Registrations pursuant to a Vestar Demand Right.  Any Demand Registration requested must be for
a firmly underwritten public offering to be managed by an underwriter or
underwriters of recognized national standing selected by the Requesting Holder
and reasonably acceptable to the Company.


 


(e)           Other
Registration Rights.  The Company
represents and warrants that neither it nor any of its subsidiaries is a party
to, or otherwise subject to, any other agreement granting registration rights
to any other person with respect to any securities of the Company.  The Company shall not grant any Incidental
Registration rights to any person that are superior to those provided to the
Covered Persons herein without the consent of the Covered Persons holding
two-thirds of the Registrable Securities that are then entitled to Incidental
Registration rights pursuant to Section 2.3.


 


Section 2.3             Incidental Registration.


 


(a)           Requests
for Incidental Registration.  At any
time the Company proposes to register any shares of Class A Common Stock
under the Securities Act (other than an Exchange Registration or registrations
on such form(s) solely for registration of shares of Class A Common
Stock in connection with any employee benefit plan or dividend reinvestment
plan or a merger or consolidation), including registrations pursuant to Section 2.2(a),
whether or not for sale for its own account, the Company will give written
notice to each holder of Registrable Securities at least thirty (30) days prior
to the initial filing of such Registration Statement with the SEC of its intent
to file such registration statement and of such holder’s rights under this Section 2.3.  Upon the written request of any holder of
Registrable Securities made within twenty (20) days after any such notice is
given (which request shall specify the Registrable Securities intended to be
disposed of by such holder), the Company will use its best efforts to effect
the registration (an “Incidental Registration”) under the Securities Act
of all Registrable Securities which the Company, as the case may be, has been
so requested to register by the holders thereof; provided, however,
that if, at any time after giving written notice of its intention to register
any securities and prior to the effective date of the Registration Statement
filed in


 


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connection with such Incidental Registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon, (a) in
the case of a determination not to register, the Company shall be relieved of
its obligation to register any Registrable Securities under this Section 2.3
in connection with such registration (but not from its obligation to pay the
expenses incurred in connection therewith), and (b) in the case of a
determination to delay registration, the Company shall be permitted to delay
registering any Registrable Securities under this Section 2.3 during the
period that the registration of such other securities is delayed.


 


(b)           Priority
on Incidental Registration.  If the
sole or managing underwriter of a registration advises the Company in writing
that in its opinion the number of Registrable Securities and other securities
requested to be included exceeds the number of Registrable Securities and other
securities which can be sold in such offering without adversely affecting the distribution
of the securities being offered, the price that will be paid in such offering
or the marketability thereof, the Company will include in such registration the
Registrable Securities and other securities of the Company in the following
order of priority:


 


(i)            first,
the greatest number of securities of the Company proposed to be included in
such registration by the Company for its own account and by holders of Other
Registration Rights that have priority over the Incidental Registration rights
granted to holders of Registrable Securities under this Agreement, which in the
opinion of such underwriters can be so sold; and


 


(ii)           second,
after all securities that the Company proposes to register for its own account
or for the accounts of holders of Other Registration Rights that have priority
over the Incidental Registration rights under this Agreement have been
included, the greatest amount of Registrable Securities and securities having
Other Registration Rights that are pari passu with Registrable Securities,
in each case requested to be registered by the holders thereof which in the
opinion of such underwriters can be sold in such offering without adversely
affecting the distribution of the securities being offered, the price that will
be paid in such offering or the marketability thereof, ratably among the
holders of Registrable Securities (whether requested to be registered pursuant
to Sections 2.1, 2.2 or 2.3) and securities subject to such Other Registration
Rights based on the respective amounts of Registrable Securities and securities
subject to such Other Registration Rights held by each such holder.


 


(c)           Upon
delivering a request under this Section 2.3, a Covered Person (excluding
Vestar and its affiliates, but including any other Permitted Transferee of any
thereof) will, if requested by the Company, execute and deliver a custody
agreement and power of attorney in form and substance reasonably satisfactory
to the Company and Vestar with respect to such Covered Person’s Securities to
be registered pursuant to this Section 2.3 (a “Custody Agreement and
Power of Attorney”).  The Custody
Agreement and Power of Attorney will provide, among other things, that the
Covered Person will


 


8














 


deliver to and deposit in custody with the custodian and
attorney-in-fact named therein (who shall be reasonably satisfactory to Vestar)
a certificate or certificates representing such Securities (duly endorsed in
blank by the registered owner or owners thereof or accompanied by duly executed
stock powers in blank) and irrevocably appoint said custodian and
attorney-in-fact with full power and authority to act under the Custody
Agreement and Power of Attorney on such Covered Person’s behalf with respect to
the matters specified therein.  Such
Covered Person also agrees to execute such other agreements as the Company may
reasonably request to further evidence the provisions of this Section 2.3.


 


(d)                                 Notwithstanding anything to
the contrary herein, after the time the Company has caused to become effective
an Exchange Registration, covering all shares to be registered pursuant to Section 2.1
hereof, and continuing for so long as such Exchange Registration remains
effective and available for use, any Covered Person who is not an “affiliate”
of the Company for purposes of Rule 144 or the holder of at least 3% of
the then-outstanding Class A Common Stock on a fully-diluted basis
(including giving effect to the exchange of all Holdings Units held by Persons
other than the Company for shares of Class A Common Stock) shall cease to
have any Incidental Registration rights pursuant to this Section 2.3.


 


Section 2.4                                      Holdback
Agreements.


 


(a)                                  Each Covered Person agrees
that if requested in writing in connection with an underwritten offering made
pursuant to a Registration Statement for which such Covered Person has
registration rights pursuant to this Article II by the managing
underwriter or underwriters of such underwritten offering, such holder will not
effect any Public Sale or distribution of any of the securities being
registered or any securities convertible or exchangeable or exercisable for
such securities (except as part of such underwritten offering), during the
period beginning 10 days prior to, and ending 180 days after, the effective
date of the Company’s initial public offering of the Class A Common Stock
(the “IPO Holdback Period”), except as part of such Initial Public
Offering, or, in the case of any subsequent underwritten offering pursuant to
this Agreement, during the period beginning seven days prior to, and ending 90
days after, the effective date of any such subsequent underwritten registration
(the “Follow-On Holdback Period”), except as part of any such
underwritten registration (or for such shorter period as to which the managing
underwriter or underwriters may agree, provided that such shorter period
applies equally to all Covered Persons). 
If (i) the Company issues an earnings release or discloses other
material information or a material event relating to the Company occurs during
the last 17 days of the IPO Holdback Period or a Follow-On Holdback Period (as
applicable) or (ii) prior to the expiration of the IPO Holdback Period or
a Follow-On Holdback Period (as applicable), the Company announces that it will
release earnings results during the 16-day period beginning upon the expiration
of such period, then to the extent necessary for a managing or co-managing
underwriter of a registered offering required hereunder to comply with FINRA Rule 2711(f)(4),
the IPO Holdback Period or the Follow-On Holdback Period (as applicable) will
be extended until 18 days after the earnings release or disclosure of other
material information or the occurrence of the material event, as the case may
be (a “Holdback Extension”). 
Notwithstanding the 


 


9

















 


foregoing, no Follow-On Holdback Period shall apply to any person who (i) is
not an executive officer or director of the Company, a selling stockholder in
such offering or a person selling Holdings Units to the Company, Holdings or
any of the their respective subsidiaries if such purchase is funded by the sale
of Class A Common Stock by the Company, Holdings or any of their
respective subsidiaries in such offering and (ii) holds, together with its
affiliates, less than 1% of the then-outstanding Class A Common Stock.


 


(b)                                 The Company agrees (i) not
to effect any public sale or distribution of its equity securities, or any
securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and during the 180-day period beginning on the
effective date of any underwritten Demand Registration (or for such shorter
period as to which the managing underwriter or underwriters may agree), except
as part of such Demand Registration or in connection with an Exchange
Registration or any employee benefit or similar plan, any dividend reinvestment
plan, or a business acquisition or combination and (ii) to use all
reasonable efforts to cause each holder of 
at least 5% (on a fully-diluted basis) of its Class A Common Stock,
or any securities convertible into or exchangeable or exercisable for such Class A
Common Stock, which are or may be purchased from the Company at any time after
the date of this Agreement (other than in a registered offering) to agree not
to effect any sale or distribution of any such Class A Common Stock during
such period (except as part of such underwritten offering, if otherwise
permitted).


 


Section 2.5                                      Registration
Procedures.  In
connection with any request by the Requesting Holder that Registrable
Securities be registered pursuant to Sections 2.2 or 2.3, subject to the
provisions of such Sections, the paragraphs below shall be applicable, and in
connection with any Exchange Registration pursuant to Section 2.1,
paragraphs (a), (c), (d), (e), (f), (k), (l) and (n) below shall be
applicable:


 


(a)                                  The Company shall as
expeditiously as reasonably practicable prepare and file with the SEC a
registration statement on any form for which the Company then qualifies or that
counsel for the Company shall deem appropriate and which form shall be
available for the registration of the Registrable Securities to be registered
thereunder in accordance with the intended method of distribution thereof, and
use its commercially reasonable efforts to cause such filed registration
statement to become and remain effective for a period of not less than 40 days,
or in the case of an Exchange Registration until all of the Registrable
Securities of the Covered Persons included in any such registration statement
(each, a “Registering Covered Person”) shall have actually been
exchanged thereunder.


 


(b)                                 Prior to filing a
registration statement or prospectus or any amendment or supplement thereto,
the Company shall, if requested, furnish to each Registering Covered Person and
each underwriter, if any, of the Registrable Securities covered by such
registration statement copies of such registration statement as proposed to be
filed, and thereafter the Company shall furnish to such Registering Covered
Person and underwriter, if any, such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits thereto and documents incorporated by reference therein), the
prospectus included in such 


 


10

















 


registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A
under the Securities Act and such other documents as such Registering Covered
Person or underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Registering Covered
Person.  The Registering Covered Person
shall have the right to request that the Company modify any information
contained in such registration statement, amendment and supplement thereto
pertaining to such Registering Covered Person and the Company shall use its all
commercially reasonable efforts to comply with such request, provided, however,
that the Company shall not have any obligation to so modify any information if
the Company reasonably expects that so doing would cause the prospectus to
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading.


 


(c)                                  After the filing of the
registration statement, the Company shall (i) cause the related prospectus
to be supplemented by any required prospectus supplement, and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act, (ii) comply
with the provisions of the Securities Act with respect to the disposition of
all Registrable Securities covered by such registration statement during the
applicable period in accordance with the intended methods of disposition by the
Registering Covered Person thereof set forth in such registration statement or
supplement to such prospectus and (iii) promptly notify each Registering
Covered Person holding Registrable Securities covered by such registration
statement of any stop order issued or threatened by the SEC suspending the
effectiveness of such registration statement or any state securities commission
and take all commercially reasonable efforts to prevent the entry of such stop
order or to obtain the withdrawal of such order if entered.


 


(d)                                 To the extent any “free
writing prospectus” (as defined in Rule 405 under the Securities Act) is
used, the Company shall file with the SEC any free writing prospectus that is
required to be filed by the Company with the SEC in accordance with the
Securities Act and retain any free writing prospectus not required to be filed.


 


(e)                                  The Company shall use its
commercially reasonable efforts to (i) register or qualify the Registrable
Securities covered by such registration statement under such other securities
or “blue sky” laws of such jurisdictions in the United States as any
Registering Covered Person holding such Registrable Securities or each
underwriter, if any, reasonably (in light of such member’s intended plan of
distribution) requests and (ii) cause such Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company and
do any and all other acts and things that may be reasonably necessary or
advisable to enable such Registering Covered Person to consummate the
disposition of the Registrable Securities owned by such person, provided that
the Company shall not be required to (A) qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify but for
this Section 2.5(e), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction.


 


11

















 


(f)                                    The Company shall
immediately notify each Registering Covered Person holding such Registrable
Securities covered by such registration statement or each underwriter, if any,
at any time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and promptly prepare and make available to
each such Registering Covered Person or underwriter, if any, and file with the
SEC any such supplement or amendment.


 


(g)                                 The Requesting Holder shall
select an underwriter or underwriters in connection with any Public
Offering.  In connection with any Public
Offering, the Company shall enter into customary agreements (including an
underwriting agreement in customary form) and take such all other actions as
are reasonably required in order to expedite or facilitate the disposition of
such Registrable Securities in any such Public Offering, including if necessary
the engagement of a “qualified independent underwriter” in connection with the
qualification of the underwriting arrangements with FINRA.


 


(h)                                 Subject to the execution of
confidentiality agreements satisfactory in form and substance to the Company in
the exercise of its good faith judgment, pursuant to the reasonable request of
the Requesting Holder or underwriter (if any), the Company will give to each
Registering Covered Person, each underwriter (if any) and their respective
counsel and accountants (i) reasonable and customary access to its books
and records and (ii) such opportunities to discuss the business of the
Company with its directors, officers, employees, counsel and the independent
public accountants who have certified its financial statements, as shall be
appropriate, in the reasonable judgment of counsel to such Registering Covered
Person or underwriter, to enable them to exercise their due diligence
responsibility.


 


(i)                                     The Company shall use its
commercially reasonable efforts to furnish to each Registering Covered Person
and to each such underwriter, if any, a signed counterpart, addressed to such
person or underwriter, of (i) an opinion or opinions of counsel to the
Company and (ii) a comfort letter or comfort letters from the Company’s
independent public accountants, each in customary form and covering such
matters of the kind customarily covered by opinions or comfort letters, as the
case may be, as the Requesting Holder or underwriter reasonably requests.


 


(j)                                     Each Registering Covered
Person registering securities under Sections 2.2 or 2.3 shall promptly furnish
in writing to the Company the information set forth in Appendix B and such
other information regarding itself, the distribution of the Registrable
Securities as the Company may from time to time reasonably request and such
other information as may be legally required or advisable in connection with
such registration.


 


(k)                                  Each Registering Covered
Person and each underwriter, if any, agrees that, upon receipt of any notice
from the Company of the happening of any event of the 


 


12

















 


kind described in Section 2.5(f), such Registering Covered Person
or underwriter shall forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Registering Covered Person’s or underwriter’s receipt of
the copies of the supplemented or amended prospectus contemplated by Section 2.5(f),
provided, however, that, upon written notice to each Registering
Covered Person and each underwriter, if any, and for a reasonable time
specified in the notice but not exceeding 60 days thereafter or 90 days in any
365 day period (the “Suspension Period”), the Company may suspend the
use or effectiveness of any registration statement if the Company’s Board
reasonably believes that the Company is in possession of material non-public
information, the failure of which to be disclosed in the prospectus included in
the registration statement could constitute a material misstatement or
omission; and, if so directed by the Company, such Registering Covered Person
or underwriter shall deliver to the Company all copies, other than any
permanent file copies then in such Registering Covered Person’s possession, of
the most recent prospectus covering such Registrable Securities at the time of
receipt of such notice.  If the Company
shall give such notice, the Company shall extend the period during which such
registration statement shall be maintained effective (including the period
referred to in Section 2.5(a)) by the number of days during the period
from and including the date of the giving of notice pursuant to Section 2.5(f) to
the date when the Company shall make available to such Registering Covered
Person a prospectus supplemented or amended to conform with the requirements of
Section 2.5(f).


 


(l)                                     The Company shall use its
commercially reasonable efforts to list all Registrable Securities covered by
such registration statement on any securities exchange or quotation system on
which any of the Registrable Securities are then listed or traded.


 


(m)                               The Company shall cause
appropriate officers of the Company or Holdings to (i) prepare and make
presentations at any “road shows” and before analysts and rating agencies, as
the case may be, (ii) take other actions to obtain ratings for any
Registrable Securities and (iii) otherwise use their commercially
reasonable efforts to cooperate as reasonably requested by the underwriters in
the offering, marketing or selling of the Registrable Securities.


 


(n)                                 The Company shall cooperate
with the Registering Covered Persons to facilitate the timely delivery of
Registrable Securities to be sold, which shall not bear any restrictive
legends, and to enable such Registrable Securities to be issued in such
denominations and registered in such names as such Registering Covered Persons
may reasonably request at least two business days prior to the closing of any
sale of Registrable Securities.


 


Section 2.6                                      Indemnification
by the Company.  In the
event of any registration of any Registrable Securities of the Company under
the Securities Act pursuant to this Article II, the Company will, and it
hereby does, indemnify and hold harmless, to the extent permitted by law, a
Registering Covered Person, each affiliate of such Registering Covered Person
and their respective directors and officers or general and limited partners or
members and managing members (including any director, officer, affiliate,
employee, agent and controlling person of any of the foregoing) and each other
person, if any, who controls such seller within the meaning of 


 


13

















 


the Securities Act (collectively, the “Indemnified Parties”),
from and against any and all losses, claims, damages and liabilities
(including, without limitation, legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out of, or are
based upon, (1) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or amendment or
supplement thereto under which such Registrable Securities were registered or
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or (2) any untrue statement or alleged untrue statement of a
material fact contained in any prospectus, any free writing prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act in respect of the Registrable Securities, or amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
that the Company shall not be liable to any Indemnified Party in any such case
to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, prospectus, any free writing prospectus or
any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act in respect of the Registrable Securities, or amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company with respect to such seller or any underwriter
specifically for use in the preparation thereof.


 


Section 2.7                                      Indemnification
by Registering Covered Persons.  Each Registering Covered Person hereby
indemnifies and holds harmless, and the Company may require, as a condition to
including any Registrable Securities in any registration statement filed in
accordance with this Article II, that the Company shall have received an
undertaking reasonably satisfactory to it from any underwriter to indemnify and
hold harmless, the Company and all other prospective sellers of Registrable
Securities, each officer of the Company who signed the Registration Statement
and each person, if any, who controls the Company and all other prospective
sellers of Registrable Securities within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in Section 2.6 above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to the
Company with respect to such seller or any underwriter specifically for use in
the preparation of such registration statement, prospectus, any free writing
prospectus or any “issuer information” filed or required to be filed pursuant
to Rule 433(d) under the Securities Act in respect of the Registrable
Securities, or amendment or supplement thereto. 
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company, any of the Registering
Covered Persons or any underwriter, or any of their respective affiliates,
directors, officers or controlling persons and shall survive the transfer of
such securities by such person.  In no
event shall any such indemnification liability of any Registering Covered
Person be greater in amount than the dollar amount of the proceeds received by
such Registering Covered Person upon the sale of the Registrable Securities
giving rise to such indemnification obligation.


 


14

















 


Section 2.8                                      Conduct of
Indemnification Proceedings.  Promptly after receipt by an Indemnified
Party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Article II, such Indemnified Party will, if a claim in
respect thereof is to be made against an indemnifying party, give written
notice to the latter of the commencement of such action; provided, that the
failure of the Indemnified Party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this Article II,
except to the extent that the indemnifying party is materially prejudiced by
such failure to give notice.


 


In case any such action is
brought against an Indemnified Party, unless in such Indemnified Party’s
reasonable judgment a conflict of interest between such Indemnified Party and
indemnifying parties may exist in respect of such claim, the indemnifying party
will be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such Indemnified Party, and after
notice from the indemnifying party to such Indemnified Party of its election so
to assume the defense thereof, the indemnifying party will not be liable to
such Indemnified Party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs
of investigation.  It is understood and
agreed that the indemnifying person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Parties, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm (x) for any
Covered Person, its affiliates, directors and officers and any control persons
of such Indemnified Party shall be designated in writing by the Requesting
Holder, (y) in all other cases shall be designated in writing by the
Board.  The indemnifying person shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying person agrees to indemnify each Indemnified
Party from and against any loss or liability by reason of such settlement or
judgment.  No indemnifying person shall,
without the written consent of the Indemnified Party, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Party
is or could have been a party and indemnification could have been sought hereunder
by such Indemnified Party, unless such settlement (A) includes an
unconditional release of such Indemnified Party, in form and substance
reasonably satisfactory to such Indemnified Party, from all liability on claims
that are the subject matter of such proceeding and (B) does not include
any statement as to or any admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Party.


 


Section 2.9                                      Contribution.  If the indemnification provided for in this Article II
from the indemnifying party is unavailable to an Indemnified Party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and Indemnified Parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations.  The
relative fault of such indemnifying party and Indemnified Parties shall be determined
by reference to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a 


 


15

















 


material fact or omission or alleged omission to state a material fact,
has been made by, or relates to information supplied by, such indemnifying
party or Indemnified Parties, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such action.  The amount paid or payable by a party under
this Section 2.9 as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.


 


The parties hereto agree that
it would not be just and equitable if contribution pursuant to this Section 2.9
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph.  No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.


 


Section 2.10                                Participation
in Public Offering.  No Covered
Person may participate in any Public Offering hereunder unless such Covered
Person (a) agrees to sell such Covered Person’s securities on the basis
provided in any underwriting arrangements approved by the Covered Persons
entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements and the provisions of this Agreement in respect of
registration rights.


 


Section 2.11                                Other
Indemnification. 
Indemnification similar to that specified herein (with appropriate
modifications) shall be given by the Company and the Registering Covered Person
participating therein with respect to any required registration or other
qualification of securities under any federal or state law or regulation or
Governmental Authority other than the Securities Act.


 


Section 2.12                                Rules 144
and 144A.  At all
times after the Company effects the initial public offering of the Class A
Common Stock, the Company shall use its commercially reasonable efforts to file
the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations promulgated thereunder (or, if
the Company is not required to file such reports, upon the request of any
Covered Person, to make publicly available such information as may be required
to be provided under Rule 144 under the Securities Act), and will use
commercially reasonable efforts to take such further action as any Covered
Person may reasonably request, all to the extent required from time to time to
enable such Covered Person to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such Rule may be amended from time to time,
or (ii) any similar rule or regulation hereafter adopted by the
SEC.  Upon the request of any Covered
Person, the Company shall deliver to such Covered Person a written statement as
to whether it has complied with such requirements.  Notwithstanding anything contained in this Section 2.12,
the Company may deregister under Section 12 of the Exchange Act if it then
is permitted to do so pursuant to the Exchange Act and the rules and
regulations thereunder.


 


16

















 


Section 2.13                                Parties in
Interest.  Each
Covered Person shall be entitled to receive the benefits of this Agreement and
shall be bound by the terms and provisions of this Agreement by reason of such
Covered Person’s election to participate in a registration under this Article II.  To the extent Holdings Units are effectively transferred in
accordance with the terms of the Holdings LLC Agreement, the Permitted Transferee of such Holdings Units shall be entitled to receive
the benefits of this Agreement and shall be bound by the terms and provisions
of this Agreement upon becoming bound hereby pursuant to Section 3.1(c).


 


Section 2.14                                Acknowledgement
Regarding the Company.  Other
than those determinations reserved expressly to the Requesting Holder, all
determinations necessary or advisable under this Article II shall be made
by the Board, the determinations of which shall be final and binding.


 


Section 2.15                                Mergers,
Recapitalizations, Exchanges or Other Transactions Affecting Registrable
Securities.  The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to the Registrable Securities, to any and all securities or units
of Holdings or the Company or any successor or assign of any such person
(whether by merger, amalgamation, consolidation, sale of assets or otherwise)
that may be issued in respect of, in exchange for, or in substitution of such Registrable
Securities, by reason of any dividend, split, issuance, reverse split,
combination, recapitalization, reclassification, merger, amalgamation,
consolidation or otherwise.


 


ARTICLE
III


MISCELLANEOUS


 


Section 3.1                                      Term of the
Agreement; Termination of Certain Provisions.


 


(a)                                  The term of
this Agreement shall continue until the first to occur of (i) such time as
no Covered Person holds any Covered Holdings Units or Registrable Securities
and (ii) such time as the Agreement is terminated by each of (A) Vestar
(to the extent it or its affiliates holds Covered Holdings Units or Registrable
Securities), (B) Edward L. Donnelly, Jr. (to the extent he or his
affiliates continues to hold a number of Covered Holdings Units that is equal
to or greater than 3% of the number of Holdings Units outstanding immediately
following the closing of the Initial Public Offering and the related repurchase
of Holdings Units with the proceeds therefrom (such number to be adjusted for
any subdivision or combination of the Holdings Units effected after the closing
of the Initial Public Offering)) and (C) holders of two thirds of the
outstanding Covered Holdings Units. This Agreement may be amended only with the
consent of the Company and the holders of Covered Holdings Units required to
terminate this Agreement.


 


(b)                                 Unless this
Agreement is theretofore terminated pursuant to Section 3.1(a) hereof,
a Covered Person shall be bound by the provisions of this Agreement with
respect to any Covered Holdings Units or Registrable Securities until such time
as such Covered Person ceases to hold any Covered Holdings Units or Registrable
Securities.  Thereafter, such Covered
Person shall no longer be bound by the provisions of this Agreement other than Sections
2.7, 2.8, 2.9 and 2.11 and this Article III.


 


17














 


(c)                                  Any Permitted
Transferee of a Covered Person shall be entitled to become part to this
agreement as a Covered Person; provided, that, such Permitted Transferee shall
first sign an agreement in the form approved by the Company acknowledging that
such Permitted Transferee is bound by the terms and provisions of the
Agreement.


 


Section 3.2                                      Assignment;
Successors.  This
Agreement shall be binding upon and inure to the benefit of the respective
legatees, legal representatives, successors and assigns of the Covered Persons;
provided, however, that a Covered Person may not assign this Agreement or any
of his rights or obligations hereunder, and any purported assignment in breach
hereof by a Covered Person shall be void except for any transfer to a Permitted
Transferee in accordance with this Agreement; and provided further that no
assignment of this Agreement by the Company or to a successor of the Company
(by operation of law or otherwise) shall be valid unless such assignment is
made to a person which succeeds to the business of such person substantially as
an entirety.


 


Section 3.3                                      Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.


 


Section 3.4                                      Severability.  Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other provision or any other jurisdiction, but this Agreement shall
be reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.


 


Section 3.5                                      Entire
Agreement.  Except as
otherwise expressly set forth herein, this document embodies the complete
agreement and understanding among the parties hereto with respect to the
subject matter hereof and supersedes and preempts any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.


 


Section 3.6                                      Successors and
Assigns; Certain Transferees Bound Hereby.  Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by each of
the Company and Holdings and their successors and assigns, and by the Covered
Persons and their respective successors and assigns so long as they hold shares
of Class A Common Stock or Holdings Units.


 


Section 3.7                                      Counterparts.  This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.


 


Section 3.8                                      Remedies.  The Company, Holdings and the Covered Persons
shall be entitled to enforce their rights under this Agreement specifically, to
recover damages by reason of any breach of any provision of this Agreement
(including costs of enforcement) and to exercise all other rights existing in
their favor.  The parties hereto agree
and acknowledge that 


 


18

















 


money damages would not be
an adequate remedy for any breach of the provisions of this Agreement and that,
in addition to any other rights and remedies existing in its favor, the
Company, Holdings or any Covered Person may in its or his sole discretion apply
to any court of law or equity of competent jurisdiction for specific
performance and/or other injunctive relief (without posting a bond or other
security) in order to enforce or prevent any violation of the provisions of
this Agreement.


 


Section 3.9                                      Notices.  All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
courier service, by fax, by electronic mail (delivery receipt requested) or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be as specified in a notice given in accordance with this Section 3.9):


 


(a)                                  If to the Company at:


 


DynaVox Inc.

2100 Wharton Street


Suite 400

Pittsburgh, PA 15203

Attention:  Chief Executive Officer


 


with a copy to:


 


Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017-3954

Attention:  Joshua Ford Bonnie, Esq.


 


(b)                                 If to Holdings at:


 


DynaVox Systems Holdings LLC

2100 Wharton Street


Suite 400

Pittsburgh, PA 15203

Attention:  Chief Executive Officer


 


with a copy to:


 


Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017-3954

Attention:  Joshua Ford Bonnie, Esq.


 


(c)                                  If to any Covered Person, to
the address and other contact information set forth in the records of Holdings
from time to time.


 


19

















 


Section 3.10                                Governing Law.  The Delaware Limited Liability Company Act
shall govern all questions arising under this Agreement concerning the relative
rights of Holdings and the holders of its limited liability company
interests.  The Delaware General Company
Law shall govern all questions arising under this Agreement concerning the
relative rights of the Company and its stockholders.  All other questions concerning the
construction, validity and interpretation of this Agreement shall be governed
by and construed in accordance with the domestic laws of the State of New York
applicable to contracts made and to be performed in the State of New York.


 


Section 3.11                                Specific
Performance.  Each party
hereto acknowledges that the remedies at law of the other parties for a breach
or threatened breach of this Agreement would be inadequate and, in recognition
of this fact, any party to this Agreement, without posting any bond, and in
addition to all other remedies that may be available, shall be entitled to
obtain equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other equitable
remedy that may be then available.


 


Section 3.12                                Descriptive
Headings.  The
descriptive headings of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.


 


[Remainder of Page Intentionally Left Blank]


 


20

















 


IN WITNESS WHEREOF, the
parties hereto have duly executed or caused to be duly executed this Agreement
as of the dates indicated.


 


	
   

  	
  DYNAVOX INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward L. Donnelly, Jr.

  
	
   

  	
   

  	
  Name: Edward L. Donnelly, Jr.

  
	
   

  	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COVERED PERSONS

  
	
   

  	
   

  
	
   

  	
  Each Covered Person set forth on Annex A hereto

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ryan Sullivan

  
	
   

  	
  Name: Ryan Sullivan

  
	
   

  	
  Title: Attorney-in-fact

  



 


[Registration Rights Agreement]


 

















 


Appendix A


 


DYNAVOX
INC.


 


Covered
Person  Questionnaire


 


The
undersigned Covered Person understands that the Company has filed or intends to
file with the SEC a registration statement for the registration of the shares
of Class A Common Stock (as such may be amended, the “Registration
Statement”), in accordance with Sections 2.2 or 2.3 of the Registration
Rights Agreement, dated as of April 21, 2010 (the “Registration Rights
Agreement”), among the Company and the Covered Persons referred to
therein.  A copy of the Agreement is
available from the Company upon request at the address set forth below.  All capitalized terms used and not otherwise
defined herein shall have the meanings ascribed thereto in the Registration Rights
Agreement.


 


NOTICE


 


The
undersigned Covered Person hereby gives notice to the Company of its intention
to register Registrable Securities beneficially owned by it and listed below in
Item 3 (unless otherwise specified under Item 3) pursuant to the Registration
Statement.  The undersigned, by signing
and returning this Questionnaire, understands that it will be bound by the
terms and conditions of this Questionnaire and the Registration Rights
Agreement.


 


Pursuant
to the Registration Rights Agreement, the undersigned has agreed to indemnify and
hold harmless the Company and all other prospective sellers of Registrable
Securities, each officer of the Company who signed the Registration Statement
and each person, if any, who controls the Company and all other prospective
sellers of Registrable Securities within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages and liabilities arising in connection with
statements made or omissions concerning the undersigned in the Registration
Statement, prospectus, any free writing prospectus or any “issuer information”
in reliance upon the information provided in this Questionnaire.


 


The
undersigned Covered Person hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:


 


QUESTIONNAIRE


 


1.                                      Name.


 


(a)                                  Full Legal Name
of Covered Person:


 


 


(b)                                 Full Legal Name
of Covered Person (if not the same as (a) above) through which Registrable
Securities Listed in Item 3 below are held:


 


 

















 


(c)                                  Full Legal name
of DTC Participant (if applicable and if not the same as (b) above)
through which Registrable Securities listed in Item 3 below are held:


 


 


(d)                                 Full Legal Name
of natural control person (which means a natural person who directly or
indirectly alone or with others has power to vote or dispose of the Registrable
Securities listed in Item 3 below):


 


 


2.                                      Address for Notices to Covered Person:


 


 


 


Telephone:


Fax:


Email:


Contact Person:


 


3.                                      Beneficial Ownership of Registrable Securities:


 


Number of Registrable Securities beneficially owned:


 


 


 


4.                                      Broker-Dealer Status:


 


(a)                                  Are you a
broker-dealer?


 


	
  Yes

  	
   ̈

  	
  No

  	
   ̈

  	
   

  



 


Note:                   If yes, the SEC’s staff has
indicated that you should be identified as an underwriter in the Registration
Statement.


 


(b)                                 Are you an
affiliate of a broker-dealer?


 


	
  Yes

  	
   ̈

  	
  No

  	
   ̈

  	
   

  



 


If yes, please identify the broker-dealer with whom
the Covered Person is affiliated and the nature of the affiliation:


 


 


 


2

















 


(c)                                  If you are an
affiliate of a broker-dealer, do you certify that you bought the Registrable
Securities in the ordinary course of business, and at the time of the purchase
of the Registrable Securities to be resold, you had no agreements or
understandings, directly or indirectly, with any person to distribute the
Registrable Securities?


 


	
  Yes

  	
   ̈

  	
  No

  	
   ̈

  	
   

  



 


Note:                   If no, the SEC’s staff has
indicated that you should be identified as an underwriter in the Registration
Statement.


 


(d)                                 If you are (1) a
broker-dealer or (2) an affiliate of a broker-dealer and answered “no” to
Question 4(c), do you consent to being named as an underwriter in the
Registration Statement?


 


	
  Yes

  	
   ̈

  	
  No

  	
   ̈

  	
   

  



 


5.                                      Beneficial Ownership of Other Securities of the Company Owned by the
Covered Person.


 


Except as set forth below in this
Item 5, the undersigned Covered Person is not the beneficial or registered
owner of any securities of the Company other than the Registrable Securities
listed above in Item 3.


 


Type and Amount of Other Securities beneficially
owned by the Covered Person:


 


 


 


6.                                      Relationships with the Company:


 


Except as set forth below, neither
the undersigned Covered Person nor any of its affiliates, officers, directors
or principal equity holders (owners of 5% or more of the equity securities of
the undersigned) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during the
past three years.


 


State any exceptions here:


 


 


 


3

















 


7.                                      Intended Method of Disposition of Registrable Securities (Only Applicable
to a Demand Registration Effected Pursuant to Section 2.2 of the
Registration Rights Agreement):


 


Intended Method or Methods of Disposition of
Registrable Securities beneficially owned:


 


 


 


4

















 


The
undersigned agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein that may occur subsequent to the
date hereof and at any time while the Registration Statement remains in effect.


 


By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 7 and the inclusion of such
information in the Registration Statement and the related prospectus.  The undersigned understands that such
information will be relied upon by the Company in connection with the
preparation or amendment of the Registration Statement and the related
prospectus.


 


IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this
Questionnaire to be executed and delivered either in person or by its duly
authorized agent.


 


	
  Dated:

  	
   

  	
   

  	
  Beneficial Owner:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
							



 


PLEASE SEND A COPY OF THE COMPLETED
AND EXECUTED QUESTIONNAIRE BY FAX OR ELECTRONIC MAIL, AND RETURN THE ORIGINAL
BY OVERNIGHT MAIL, TO:


 


DynaVox
Inc.


2100 Wharton Street


Suite 400


Pittsburgh, PA 15203


Attention: Chief Financial Officer


Fax:


Electronic Mail:


 


5