EXHIBIT 10.7


 


FINAL


 


DYNAVOX INC.

2010 LONG-TERM INCENTIVE PLAN


 


FORM OF


NON-QUALIFIED STOCK OPTION AGREEMENT


 


THIS AGREEMENT (the “Agreement”),
is made effective as of the date set forth on the signature page hereto
(the “Date of Grant”),
between DynaVox Inc. (the “Company”)
and the individual named on the signature page hereto (the “Participant”).


 


R E C I T A L S:


 


WHEREAS, the Company has adopted the Plan (as
defined below), the terms of which are hereby incorporated by reference and
made a part of this Agreement; and


 


WHEREAS, the Committee (as defined in the Plan) has
determined that it would be in the best interests of the Company and its
stockholders to grant the Option (as defined below) provided for herein to the
Participant pursuant to the Plan and the terms set forth herein.


 


NOW, THEREFORE, in consideration of the mutual
covenants hereinafter set forth, the parties agree as follows:


 


1.             Definitions.  Whenever the following terms are used in this
Agreement, they shall have the meanings set forth below.  Capitalized terms not otherwise defined
herein shall have the same meanings as in the Plan.


 


(a)   Cause: “Cause” shall
mean “Cause” as defined in any employment, severance or similar agreement then
in effect between the Participant and any member of the Company Group or, if no
such agreement containing a definition of “Cause” is then in effect or if such
term is not defined therein, “Cause” shall mean a termination of employment of
the Participant by any member of the Company Group due to (i) the commission
by the Participant of an act of fraud or embezzlement, (ii) the indictment
or conviction of the Participant for a felony or a crime involving moral
turpitude or a plea by the Participant of guilty or nolo contendere involving
such a crime, (iii) the malfeasance or willful misconduct by the
Participant in the performance of the Participant’s duties, including any
misrepresentation or concealment by the Participant on any report submitted to
any member of the Company Group, (iv) the violation by the Participant of
a written company policy regarding employment, including substance abuse,
sexual harassment or discrimination, or the Company’s insider trading policy
and/or the related riders to the Company’s Code of Conduct, (v) the
willful failure of the Participant to render services to any member of the
Company Group in accordance with the Participant’s employment which failure
amounts to a material neglect of the Participant’s duties to any member of the
Company Group, (vi) the repeated failure of the Participant to comply with
reasonable directives of the Board or the Chief Executive Officer of the
Company consistent with the Participant’s duties, or (vii) the material
breach by the Participant of any of the provisions of any agreement between the
Participant, on the one hand, and any member of the Company Group, on the other
hand.


 

















 


(b)   Company
Group: The Company and its Subsidiaries.


 


(c)   Expiration Date: The tenth  anniversary of the Date of Grant.


 


(d)   Good Reason: “Good Reason”
shall mean “Good Reason”
as such term may be defined in any employment, severance or similar agreement
in effect at the time of the Participant’s termination of Employment between
the Participant and any member of the Company Group, or, if there is no such
agreement or such term is not defined therein, “Good Reason” shall mean,
without the Participant’s consent, a change by the applicable
member of the Company Group in the Participant’s duties and responsibilities
which is materially inconsistent with the Participant’s position at the
applicable member of the Company Group, or a material reduction in the
Participant’s annual base salary (excluding any reduction in the Participant’s
salary that is part of a plan to reduce salaries of comparably situated
employees of the Company Group generally); provided that, notwithstanding
anything to the contrary in the foregoing, (i) the Participant shall only
have “Good Reason” to terminate employment following the applicable member of
the Company Group’s failure to remedy the act or omission which is alleged to
constitute “Good Reason” within fifteen (15) days following such member’s
receipt of written notice from the Participant specifying such act or omission
and (ii) none of the foregoing acts or omissions shall be deemed to
constitute “Good Reason” if such act or omission is a direct consequence of the
Company not being publicly owned or of a change in the nature and number of the
Company’s stockholders.


 


(e)   Option: The Option
with respect to which the terms and conditions are set forth in Section 3
of this Agreement.


 


(f)    Plan: The DynaVox
Inc. 2010 Long-Term Incentive Plan, as it may be amended or supplemented from
time to time.


 


(g)   Retirement: The
Participant’s resignation from Employment with the Company Group, so long as
the Participant has attained age 65.


 


(h)   Vested Portion: At any time,
the portion of the Option which has become vested, as described in Section 3
of this Agreement.


 


2.             Grant of the Option.  The Company hereby grants to
the Participant the right and option to purchase, on the terms and conditions
hereinafter set forth, all or any part of the number of Shares subject to the
Option set forth on the signature page hereto, subject to adjustment as
set forth in the Plan.  The Option Price
shall be as set forth on the signature page hereto. The Option is intended
to be a nonqualified stock option, and is not intended to be treated as an
incentive stock option that complies with Section 422 of the Code.


 


3.             Vesting of the Option.


 


(a)   Subject to the Participant’s continued Employment
through the applicable vesting date, the Option shall vest and become
exercisable at the times set forth on the signature page hereto.


 

















 


(b)   Termination of Employment.  If the Participant’s Employment terminates
for any reason, the Option, to the extent not then vested and exercisable,
shall be immediately canceled by the Company without consideration.  Notwithstanding anything to the contrary in
this Agreement, in the event of the termination of the Participant’s Employment
(i) by any member of the Company Group without Cause or (ii) by the
Participant for Good Reason, in each case, within the two (2) year period
following a Change in Control, the Option shall, to the extent not then vested
or previously forfeited or cancelled, become fully vested and exercisable
effective as of the termination date.


 


4.                                       Exercise
of the Option.


 


(a)   Period of Exercise.  Subject to the provisions of the Plan and
this Agreement, the Participant may exercise all or any part of the Vested
Portion of the Option at any time prior to the Expiration Date.  Notwithstanding the foregoing, at any time
prior to the Expiration Date, the Vested Portion of the Option shall only
remain exercisable for the period set forth below with respect to the
particular event:


 


(i)            Termination due
to Death, Disability or Retirement.  If the Participant’s Employment is terminated
due to the Participant’s death, Disability or Retirement, the Participant may
exercise the Vested Portion of the Option for a period ending on the earlier of
(A) one year following such termination of Employment and (B) the
Expiration Date;


 


(ii)           Termination by
the Company Other than for Cause or Due to Death, Disability or Retirement.  If the Participant’s Employment is terminated
other than by a member of the Company Group for Cause or due to death,
Disability or Retirement, the Participant may exercise the Vested Portion of
the Option for a period ending on the earlier of (A) 90 days following
such termination of Employment and (B) the Expiration Date;


 


(iii)          Termination by
the Company for Cause. If the Participant’s Employment is
terminated by a member of the Company Group for Cause, the Vested Portion of
the Option shall immediately terminate in full and cease to be exercisable; and


 


(iv)          Engaging in
Competitive Activity.  If the
Participant engages in Competitive Activity (as defined in Section 5(a) below),
the Vested Portion of the Option shall immediately terminate in full and cease
to be exercisable.


 


(b)   Method of Exercise.


 


(i)            Subject to Section 4(a) of
this Agreement and any administrative procedures that may be established by the
Company, the Vested Portion of the Option may be exercised by delivering to the
Company at its principal office written notice of intent to so exercise; provided
that the Option may be exercised with respect to whole Shares only.  Such notice shall specify the number of
Shares for which the Option is being exercised and shall be accompanied by
payment in full of the Option Price.  The
payment of the Option Price may be made at the election of the Participant (i) in
cash or its equivalent (e.g., by
check), (ii) to the extent permitted by the Committee, in Shares 


 

















 


having
a Fair Market Value equal to the aggregate Option Price for the Shares being
purchased and satisfying such other requirements as may be imposed by the
Committee; provided, that such Shares have been held by the Participant for
more than six months (or such other period as established from time to time by
the Committee in order to avoid adverse accounting treatment applying generally
accepted accounting principles), (iii) partly in cash and, to the extent
permitted by the Committee, partly in such Shares, (iv) if there is a
public market for the Shares at such time, to the extent permitted by, and
subject to such rules as may be established by the Committee, through the
delivery of irrevocable instructions to a broker to sell Shares obtained upon
the exercise of the Option and to deliver promptly to the Company an amount out
of the proceeds of such sale equal to the aggregate option price for the Shares
being purchased, or (v) using a net settlement mechanism whereby the
number of Shares delivered upon the exercise of the Option will be reduced by a
number of Shares that has a Fair Market Value equal to the Option Price.  The Participant shall not have any rights to
dividends or other rights of a stockholder with respect to Shares subject to
the Option until the Participant has given written notice of exercise of the
Option, paid in full for such Shares and, if applicable, has satisfied any
other conditions imposed by the Committee pursuant to the Plan.


 


(ii)           Notwithstanding
any other provision of the Plan or this Agreement to the contrary, the Option
may not be exercised prior to the completion of any registration or qualification
of the Option or the Shares under applicable state and federal securities or
other laws, or under any ruling or regulation of any governmental body or
national securities exchange that the Committee shall in its sole discretion
determine to be necessary or advisable.


 


(iii)          Upon the
Company’s determination that the Option has been validly exercised as to any of
the Shares, the Company may issue certificates in the Participant’s name for
such Shares.  However, the Company shall
not be liable to the Participant for damages relating to any delays in issuing
the certificates, if any, to the Participant, any loss by the Participant of
any certificates, or any mistakes or errors in the issuance of any certificates
or in the certificates themselves, if any. 
Notwithstanding the foregoing, the Company may elect to recognize the
Participant’s ownership through uncertificated book entry.


 


(iv)          In the event of
the Participant’s death, the Vested Portion of the Option shall remain
exercisable by the Participant’s executor or administrator, or the person or
persons to whom the Participant’s rights under this Agreement shall pass by
will or by the laws of descent and distribution as the case may be, to the
extent set forth in Section 4(a) of this Agreement.  Any heir or legatee of the Participant shall
take rights herein granted subject to the terms and conditions hereof.


 


5.                                       Restrictive Covenants.


 


(a)   Competitive
Activity.  The
Participant acknowledges and recognizes the highly competitive nature of the
businesses of the Company Group and accordingly agrees that the Participant
will not engage in Competitive Activity. 
The Participant shall be deemed to have engaged in “Competitive Activity”
if during the period commencing on the Date of Grant and 


 

















 


ending on the second anniversary of the date
the Participant terminates Employment with the Company Group, the Participant,
whether on the Participant’s own behalf or on behalf of or in conjunction with
any other person or entity, directly or indirectly: (A) solicits, or
assists in soliciting, the business of any client or prospective client of any
member of the Company Group, or solicits or assists in soliciting or hires any
employee of any member of the Company Group, or interferes with, or attempts to
interfere with, the relationships between any of the members of the Company
Group, on the one hand, and any of its customers, clients, suppliers, partners,
members, employees or investors, on the other hand; (B) becomes an
employee, agent, representative, consultant, partner, shareholder or holder of
any other financial interest with respect to any person or entity that competes
with any member of the Company Group (or that conducts the type of business
that any of the members of the Company Group has taken concrete action to
conduct in the future), provided, that the Participant may, directly or
indirectly, own, solely as an investment, securities of any person or entity
engaged in the business of the Company Group which are publicly traded on a
national or regional stock exchange or on the over-the-counter market if the
Participant (x) is not a controlling person of, or a member of a group
which controls, such person or entity and (ii) does not, directly or
indirectly, own 2% or more of any class of securities of such person or entity;
or (C) utters or issues any disparaging or derogatory remarks, or makes
any untruthful statements, including pursuant to any press release or public
statement, about any member of the Company Group regarding any of the members
of the Company Group’s financial status, business, compliance with laws,
ethics, members, managing members, partners, personnel, directors, officers,
employees, consultants, agents, services, business methods or otherwise, or
utters or issues any other statements that are reasonably likely to disparage
any of the members of the Company Group or are otherwise degrading to any of
the members of the Company Group’s reputation in the business industry or legal
community in which such member operates, provided that the Participant shall be
permitted to make any statement that is required by applicable law or necessary
to respond in a legal or regulatory proceeding. Notwithstanding the foregoing,
if the Participant is subject to a more restrictive non-competition, non-solicitation
or non-disparagement covenant in any employment or other agreement with any
member of the Company Group, the most restrictive of such non-competition,
non-solicitation and non-disparagement covenants shall apply; it being
understood that the activities which the Participant is prohibited from
engaging in contained herein or in such other non-competition, non-solicitation
or non-disparagement covenants all shall be deemed to be “Competitive Activity”
for purposes of this Agreement.


 


(b)   Activity
Date.  If
the Participant engages in Competitive Activity, the “Activity Date” shall be
the first date on which the Participant engages in such Competitive Activity.


 


(c)   In addition to any other
remedies specified herein (including injunctive relief) or otherwise permitted
by law, if the Participant engages in Competitive Activity after the
Participant has exercised the Vested Portion of the Option, then the
Participant shall be required to pay to the Company, within ten (10) business
days following the Activity Date, an amount equal to the excess, if any, of (A) the
aggregate proceeds the Participant received (x) in connection with the
exercise of the Option or (y) upon the sale or other disposition of the
Shares received upon exercise of the Option, over (B) the Option Price.


 

















 


(d)   It is expressly understood
and agreed that although the Participant and the Company consider the
restrictions contained in this Section 5 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 the Participant, 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.


 


(e)   A violation of any of the
terms of this Agreement will cause the Company irreparable injury for which
adequate remedy at law is not available. 
Accordingly, this Option entitles the Company to an injunction,
restraining order or other equitable relief to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and provisions
hereof in any court of competent jurisdiction in the United States or any state
thereof, in addition to any other remedy to which it may be entitled at law or
equity.


 


6.             No Right to Continued Employment.  Neither the Plan nor this Agreement shall be
construed as giving the Participant the right to be retained in the employ of,
or in any consulting relationship to, any member of the Company Group.  Further, any member of the Company Group may
at any time dismiss the Participant or discontinue any consulting relationship,
free from any liability or any claim under the Plan or this Agreement, except
as otherwise expressly provided herein.


 


7.             Legend on Certificates.  To the extent applicable, all certificates
(or book entries) representing the Shares purchased by exercise of the Option
shall be subject to the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon which such Shares
are listed, and any applicable federal or state laws, and the Committee may
cause a legend or legends to be put on any such certificates (or notations made
next to the book entries) to make appropriate reference to such restrictions.


 


8.             Transferability.  The Option may not be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered by the
Participant otherwise than by will or by the laws of descent and distribution,
and any such purported assignment, alienation, pledge, attachment, sale,
transfer or encumbrance shall be void and unenforceable against the Company or
any Affiliate; provided that the designation of a beneficiary shall not
constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance.  No such permitted transfer
of the Option to heirs or legatees of the Participant shall be effective to
bind the Company unless the Committee shall have been furnished with written
notice thereof and a copy of such evidence as the Committee may deem necessary
to establish the validity of the transfer and the acceptance by the transferee
or transferees of the terms and conditions thereof.  During the Participant’s lifetime, the Option
is exercisable only by the Participant. 
Notwithstanding the foregoing, the Chief Legal Officer of the Company
may permit the transfer, in accordance with any rules established by the
Committee in connection therewith, of all or a portion of the Option granted
hereunder to an estate planning vehicle established by the Participant.


 

















 


9.             Withholding.  The Participant may be required to pay to the
Company Group and the Company Group shall have the right and is authorized to
withhold any applicable withholding or other taxes in respect of the Option,
its exercise, or any payment or transfer under or with respect to the Option
and to take such other action as may be necessary in the opinion of the
Committee to satisfy all obligations for the payment of such withholding or
other taxes.  The Participant may elect
to pay any or all of such withholding or other taxes as provided in Section 4(c) of
the Plan.


 


10.           Securities Laws.  Upon the acquisition of any Shares pursuant
to the exercise of the Option, the Participant will make or enter into such
written representations, warranties and agreements as the Committee may
reasonably request in order to comply with applicable securities laws or with
this Agreement.


 


11.           Notices.  Any notice under this Agreement shall be
addressed to the Company in care of its Chief Financial Officer and a copy to
the Chief Legal Officer, each copy addressed to the principal executive office
of the Company and to the Participant at the address appearing in the personnel
records of the Company for the Participant or to either party at such other
address as either party hereto may hereafter designate in writing to the other.  Any such notice shall be deemed effective
upon receipt thereof by the addressee.


 


12.           Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the state of  Delaware without regard to conflicts of laws.


 


13.           Amendment.  This Agreement may be amended only by a
written instrument executed by the parties hereto, which specifically states
that it is amending this Agreement.


 


14.           Option Subject to Plan.  By entering into this Agreement the
Participant agrees and acknowledges that the Participant has received and read
a copy of the Plan.  The Option is
subject to the Plan.  The terms and
provisions of the Plan, as they may be amended from time to time, are hereby
incorporated by reference.  In the event
of a conflict between any term or provision contained herein and a term or
provision of the Plan, the applicable terms and provisions of the Plan will
govern and prevail.


 


15.           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.


 


16.           Signature in 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.


 


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IN WITNESS WHEREOF, this
Agreement has been executed and delivered by the parties hereto.


 


 


	
   

  	
  DYNAVOX
  INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF PARTICIPANT]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


 


The Date of Grant is                               .


 


The number of Shares subject to the Option is
                      .


 


The Option Price shall be $                  
per Share.


 


Subject
to the Participant’s continued Employment through the applicable vesting date,
the Option shall vest and become exercisable with respect to [twenty percent (20%)][twenty-five percent (25%)] of the Shares subject to such Option on
each of the first [five (5)][four (4)]
anniversaries of the Date of Grant.


 


Signature
Page to Non-Qualified Stock Option Agreement – April 21, 2010