Exhibit
10.12


 


EMPLOYMENT AGREEMENT


 


(Robert Cunningham)


 


EMPLOYMENT AGREEMENT (the “Agreement”)
dated April 7, 2010 by and between DynaVox Systems LLC (the “Company”) and
Robert Cunningham (the “Executive”).


 


The
Company desires to employ Executive and to enter into an agreement embodying
the terms of such employment; and


 


Executive
desires to accept such employment and enter into such an agreement.


 


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


 


1.                                       Term of
Employment.   Subject to
the provisions of Section 7 of this Agreement, Executive
shall be employed by the Company for a period commencing on April 7,
2010 (the “Commencement Date”) and ending on April 6,
2013 (the “Employment Term”) on the terms and subject to the conditions set
forth in this Agreement; provided, however, that commencing with April 7, 2013 and on each April 7
thereafter (each an “Extension Date”), the Employment Term shall be
automatically extended for an additional one-year period, unless the Company or
Executive provides the other party hereto 90 days’ prior written notice before
the next Extension Date that the Employment Term shall not be so extended.


 


2.                                       Position.


 


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


 


(b)         During the
Employment Term, Executive will devote Executive’s best efforts
(subject, in each case, to periods of vacation and illness) to the performance
of Executive’s duties hereunder and will not engage in any other business,
profession or occupation for compensation or otherwise which would conflict or
reasonably be expected to interfere in any material respect with the rendition
of such services either directly or indirectly, without the prior written
consent of the Board of Directors of DynaVox Inc. (the “Board”); provided, that
Executive may accept appointment to serve on any board of directors or trustees
of any business corporation or any charitable organization, with the prior
written consent of the Board, which consent shall not be unreasonably withheld,
so long as such activities do not conflict or interfere in any material respect
with the performance of Executive’s duties hereunder or conflict with or
violate Section 9 or 10.


 


3.                                       Base Salary.  During
the Employment Term, the Company shall pay Executive a base salary at the
annual rate of $235,000, payable in regular installments in accordance with the
Company’s normal payroll practices. 
Executive shall be entitled to such increases in Executive’s base
salary, if any, as may be determined from time to time in the sole


 

















 


discretion of the Board.  Executive’s annual base salary, as in effect
from time to time, is hereinafter referred to as the “Base Salary.”


 


4.                                       Annual Bonus. With respect
to the 2010 fiscal year and each full fiscal year during the Employment Term
commencing with the 2011 fiscal year,
Executive shall be eligible to earn an annual cash bonus award (an “Annual
Bonus”) under the applicable bonus plan of the Company or one of its affiliates
of up to forty percent (40%) of Executive’s Base Salary (the “Target Bonus”)
based upon the achievement of performance targets established by the Board,
based on the Company’s annual operating plan as established by the Board,
within the first ninety (90) days of each applicable fiscal year and otherwise
subject to the terms of such bonus plan. 
In addition, Executive shall be given the opportunity to earn an Annual
Bonus in excess of the Target Bonus for superior performance upon the Company
achieving the goals to be established by the Board within the first ninety (90)
days of each applicable fiscal year.  The
Annual Bonus, if any, payable hereunder shall be paid within ten (10) business
days following the Company’s receipt of the final audited financial statements
from the Company’s accounting firm in respect of the relevant fiscal year;
provided that Executive is employed by the Company on such payment date.


 


5.                                       Employee
Benefits/Equity.


 


(a)                                  During the
Employment Term, Executive shall be entitled
to participate in the Company’s employee benefit plans as in effect from time
to time (collectively “Employee Benefits”), on the same basis as those benefits
are generally made available to other executives of the Company.


 


(b)                                 In addition to
the foregoing, it is acknowledged and agreed that DynaVox Inc. (“DynaVox”) is
currently developing an equity-based incentive program (the “Program”) for
executives of the Company.  Subject to the pricing (the “Pricing”) of the
initial public offering (the “IPO”) of the Class A common stock (the “Common
Stock”) of DynaVox, Executive shall be eligible to receive, on the date of the
Pricing, a number of stock options to purchase shares of Common Stock, as
determined by the Compensation Committee of the Board, under the Program, which
award will be subject to substantially similar terms and conditions as the
terms and conditions that will generally apply to similarly situated senior
executives of the Company and will have an exercise price equal to the initial
public offering price per share of the Common Stock.


 


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


 


7.                                       Termination. The
Employment Term and Executive’s employment hereunder may be terminated by
either party at any time and for any reason; provided that Executive will be
required to give the Company at least 60 days’ advance written notice of any
resignation of Executive’s employment without Good Reason (as defined in Section 7(c)).
Notwithstanding any other provision of this Agreement, the provisions of this Section 7
shall exclusively govern Executive’s rights upon termination of employment with
the Company and its affiliates.


 


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(a)          By the Company
For Cause or By Executive’s Resignation Without Good Reason.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


provided,
however, that “Cause” shall cease to exist for an event on the 90th day following the later of its occurrence or
the Company’s knowledge thereof, unless the Company has given Executive written
notice of termination prior to such date.


 


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


 


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


 


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


 


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


 


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


 


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


 


(b)         Disability or Death.


 


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


 


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


 


(A)      the Accrued Rights;


 


(B)        continued
payment of the Base Salary in accordance with the Company’s normal payroll
practices until twelve (12) months after the date of such termination, which
payments shall commence on the 60th day following
Executive’s termination of employment (with payments in arrears from the
termination date); and


 


(C)        a pro rata
portion of the Annual Bonus, if any, that Executive would have otherwise been
entitled to receive pursuant to Section 4 hereof in respect of such fiscal
year had Executive’s employment not terminated, based upon the percentage of
the fiscal year that shall have elapsed through the date of Executive’s
termination of employment, payable when such Annual Bonus would have otherwise
been payable 


 


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had
Executive’s employment not terminated, but in no event later than March 15th of the year following the year in which the
termination occurs.


 


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


 


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


 


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


 


(ii)                                  For purposes of
this Agreement, “Good Reason” shall mean, without Executive’s consent, (A) the
failure of the Company to pay or cause to be paid Executive’s Base Salary or
Annual Bonus, if any, when due hereunder or failure to provide, in all material
respects, the benefits described in Section 5, (B) any substantial
and sustained diminution in Executive’s authority or responsibilities from
those described in Section 2 hereof, (C) relocation of the Company’s
headquarters more than fifty miles from the Pittsburgh, Pennsylvania
metropolitan area, or (D) a material breach by the Company of this
Agreement or any other plan or agreement under which Executive is entitled to
compensation or benefits by reason of services provided to the Company
hereunder; provided that the events described in clauses (A) through
(D) of this Section 7(c)(ii) shall constitute Good Reason only
if the Company fails to cure such event within 30 days after receipt from
Executive of written notice of the event which constitutes Good Reason; provided, further, that, “Good
Reason” shall cease to exist for any event described in this Section 7(c)(ii) on
the 90th day following the later of its occurrence or
Executive’s knowledge thereof, unless Executive has given the Company written
notice of termination prior to such date.


 


(iii)                          If Executive’s
employment is terminated by the Company without Cause (other than by reason of
death or Disability) or Executive resigns for Good Reason, Executive shall be
entitled to receive, in addition to the Accrued Rights and subject to (I) Executive’s
continued compliance with the provisions of Sections 9 and 10 (solely with
respect to clause (A) below) and (II) Executive’s execution, delivery
and non-revocation of a general release of claims in favor of the Company and
its affiliates in a form prescribed by the Company (the “Release”) within 45
days following the termination date:


 


(A)      continued payment of the
Base Salary in accordance with the Company’s normal payroll practices until
twelve (12) months after the date of such termination (such amounts, the “Salary
Continuation Payments”). The Salary Continuation Payments shall commence on the 60th day following Executive’s termination of
employment (with payments in arrears from the termination date);


 


(B)        a pro rata
portion of the Annual Bonus, if any, that Executive would have otherwise been
entitled to receive pursuant to Section 4 hereof in respect of such 


 


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fiscal
year had Executive’s employment not terminated, based upon the percentage of
the fiscal year that shall have elapsed through the date of Executive’s
termination of employment, payable when such Annual Bonus would have otherwise
been payable had Executive’s employment not terminated, but in no event later
than March 15th of the year following the year in which the
termination occurs; and


 


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


 


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


 


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


 


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


 


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


 


(e)                                  Notice of
Termination. Any purported termination of employment by the
Company or by Executive (other than due to Executive’s death) shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section 13(h) hereof. For purposes of this Agreement,
a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.


 


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8.                                       Change of
Control.


 


(a)                                  At the Company’s
request, Executive will agree to remain employed by the Company for up to one
year following a Change of Control (such actual period, the “Change of Control
Period”).


 


For purposes of this Agreement, “Change of
Control” means (i) the sale or disposition, in one or a series of related
transactions, of all or substantially all of the assets of DynaVox to any “person”
or “group” (as such terms are defined in Sections 13(d)(3) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the “Act”)) other than any
member of the Vestar/Company Group (as defined below); provided that,
for the avoidance of doubt, a sale of the Mayer-Johnson business shall not
constitute a Change of Control hereunder, (ii) any “person” or “group”,
other than any member of the Vestar/Company Group, is or becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Act), directly or
indirectly, of more than 50% of the total voting power of the voting stock of
DynaVox, including by way of purchase, merger, consolidation or otherwise, or (iii) during any period of two (2) consecutive
years, individuals who at the beginning of such period constituted the Board
(together with any new directors whose election by such Board or whose
nomination for election by the shareholders of DynaVox was approved by a vote of a majority of
the directors of DynaVox, then still in office, who were either directors at
the beginning of such period or whose election or nomination for election was
previously so approved) (the “Incumbent Board”) cease for any reason to
constitute a majority of the Board then in office; provided that, any
director appointed or elected to the Board to avoid or settle a threatened or
actual proxy contest shall in no event be deemed to be an individual on the
Incumbent Board.


 


For purposes of this Agreement, “Vestar/Company Group” means (i) Vestar
Capital Partners IV, L.P. or any of its Affiliates, (ii) any party from
time to time to the Securityholders Agreement, dated as of or about the date of
the IPO, by and among DynaVox, DynaVox Systems Holdings LLC and the
Securityholders from time to time parties thereto, as such agreement may be
amended from time to time (the “Securityholders Agreement”) unless such party
together with its Affiliates is the holder of securities representing at least
50.01% of the outstanding voting securities of DynaVox or is deemed to
beneficially own at least 50.01% of the outstanding voting securities of
DynaVox for purposes of Rule 16a-1(a)(2) under the Act or any group
(as such term is used in Section 13(d)(3) of the Act) to the extent
that such group may be deemed to exist solely as a result of the
Securityholders Agreement, (iii) any employee benefit plan (or trust
forming a part thereof) maintained by DynaVox or any of its Affiliates, or (iv) any
corporation or other “person” of which a majority of the voting power of its
voting equity securities and equity interest is owned, directly or indirectly,
by DynaVox.


 


For
purposes of this Section 8(a), “Affiliate” means, with respect to any entity, any entity directly or
indirectly controlling, controlled by, or under common control with, such
entity.


 


(b)                                 Notwithstanding
anything herein to the contrary, subject to Executive (x) complying with
his obligations under Section 8(a) above and (y) providing
written notice to the Company no later than ninety (90) days prior to the end
of the Change of Control Period of his intention to terminate employment, if
Executive’s employment is terminated by Executive without Good Reason within
the ninety (90) day period following the end of the 


 


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Change of Control Period,
Executive shall be entitled to receive, in addition to the Accrued Rights and
subject to (I) Executive’s continued compliance with the provisions of
Sections 9 and 10 (solely with respect to clause (A) below) and (II) Executive’s
execution, delivery and non-revocation of the Release within 45 days following
the termination date:


 


(A)                              continued
payment of the Base Salary in accordance with the Company’s normal payroll
practices until twelve (12) months after the date of such termination (such
amounts, the “CoC Continuation Payments”). 
The CoC Continuation Payments shall commence on the 60th day following Executive’s termination of
employment (with payments in arrears from the termination date);


 


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


 


(C)                                a pro rata
portion of the Annual Bonus, if any, that Executive would have otherwise been
entitled to receive pursuant to Section 4 hereof in respect of such fiscal
year had Executive’s employment not terminated, based upon the percentage of the
fiscal year that shall have elapsed through the date of Executive’s termination
of employment, payable when such Annual Bonus would have otherwise been payable
had Executive’s employment not terminated, but in no event later than March 15th of the year following the year in which the
termination occurs.


 


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


 


9.                                       Non-Competition.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


10.                                 Confidentiality;
Intellectual Property.


 


(a)          Confidentiality.


 


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


 


(ii)                                  “Confidential
Information” shall not include any information that is (a)  generally
known to the industry or the public other than as a result of Executive’s
breach of this covenant or any breach, to Executive’s knowledge, of other
confidentiality obligations by


 


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third parties; (b) made legitimately available to Executive by a
third party without breach of any confidentiality obligation; or (c) required
by law to be disclosed; provided that Executive shall give prompt
written notice to the Company of such requirement, disclose no more information
than is so required, and cooperate with any attempts by the Company to obtain a
protective order or similar treatment.


 


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


 


(iv)                  Upon termination of Executive’s employment with the
Company for any reason, Executive shall (x) cease and not thereafter
commence use of any Confidential Information or other intellectual property
(including, without limitation, any patent, invention, copyright, trade secret,
trademark, trade name, logo, domain name or other source indicator) owned or
used by the Company, its subsidiaries or affiliates; (y) immediately
destroy, delete, or return to the Company, at the Company’s option, all
originals and copies in any form or medium (including memoranda, books, papers,
plans, computer files, letters and other data) in Executive’s possession or
control (including any of the foregoing stored or located in Executive’s
office, home, laptop or other computer, whether or not Company property) that
contain Confidential Information or otherwise relate to the business of the
Company or any of its affiliates and subsidiaries, except that Executive may
retain (i) only those portions of any personal notes, notebooks and
diaries that do not contain any Confidential Information and (ii) any
Confidential Information Executive reasonably believes is required in relation
to any dispute regarding Executive’s termination of employment, provided such
information remains otherwise subject to the terms and conditions of this
Agreement; and (z) notify and fully cooperate with the Company regarding
the delivery or destruction of any other Confidential Information of which
Executive is or becomes aware.


 


(b)   Intellectual Property.


 


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


 


11

















 


(ii)                   Executive has attached hereto, as Exhibit A,
a list describing all Works that were created, invented, designed, developed,
improved or contributed to by Executive either solely or jointly with others
prior to Executive’s employment with the Company which relate to the Company’s
proposed or current business, services, products or research and development (“Prior
Works”); or, if no such list is attached, Executive represents that there are
no such Prior Works.  If in the course of
Executive’s employment with the Company, Executive uses or relies upon a Prior
Work in Executive’s creation or contribution to any Company Work, Executive
shall inform the Company promptly and, upon request, use Executive’s best
efforts to procure any consents of third parties necessary for the Company’s
use of such Prior Work. To the fullest extent permissible by law, Executive
hereby grants the Company a non-exclusive royalty-free, irrevocable, perpetual,
worldwide license under all intellectual property rights in Executive’s Prior
Works in connection with the Company’s current and future business.


 


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


 


(iv)                  Executive shall take all requested actions and
execute all requested documents (including any licenses or assignments required
by a government contract) at the Company’s expense (but without further
remuneration) to assist the Company in validating, maintaining, protecting,
enforcing, perfecting, recording, patenting or registering any of the Company’s
rights in the Company Works.  If the
Company is unable for any other reason to secure Executive’s signature on any
document for this purpose, then Executive hereby irrevocably designates and
appoints the Company and its designees as Executive’s agent and attorney in
fact, to act for and in Executive’s behalf and stead to execute any documents
and to do all other lawfully permitted acts in connection with the foregoing.


 


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


 


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


 


11.           Specific Performance. Executive acknowledges and
agrees that the Company’s remedies at law for a breach or threatened breach of
any of the provisions of Section 9 or Section 10 would be inadequate
and the Company would suffer irreparable damages as a result of such breach or
threatened breach.  In recognition of
this fact, Executive agrees that, in


 


12

















 


the
event of such a breach or threatened breach, in addition to any remedies at
law, the Company, without posting any bond, shall be entitled to cease making
any payments or providing any benefit otherwise required by this Agreement
(other than any payments or benefits which have been earned and vested) and
obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available.


 


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


 


13

















 


13.                                 Miscellaneous.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14

















 


If to the Company:


 


Dynavox Systems LLC

2100 Wharton Street

Suite 400

Pittsburgh, PA 15203

Attention: Chief Financial Officer


 


If to Executive:


 


To the most recent address on file with the Company.


 


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


 


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


 


(k)   Prior
Agreements.  This Agreement and the Program supersede all
prior agreements and understandings (including verbal agreements) between
Executive and the Company and/or its affiliates regarding the terms and
conditions of Executive’s employment with the Company and/or its affiliates,
including, without limitation, the Employment Agreement
between Executive and Sunrise Medical Inc., dated April 10, 1998 and the
Employment Agreement between Executive and Sunrise Medical Inc., dated as of June 8,
2001.


 


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


 


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


 


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


 


(Remainder of page intentionally left blank)


 


15

















 


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


 




	
  DYNAVOX
  SYSTEMS LLC

  	
   

  	
  ROBERT
  CUNNINGHAM

  
	
   

  	
   

  	
   

  
	
  /s/
  Michelle Heying

  	
   

  	
  /s/
  Robert Cunningham

  
	
   

  	
   

  	
   

  
	
  By:
  Michelle Heying

  	
   

  	
   

  
	
  Title:
  President & Chief Operating Officer

  	
   

  	
   

  






 


16

















 


EXHIBIT A


PRIOR INVENTIONS


 


NONE