Exhibit 10.4


 


EXCHANGE
AGREEMENT


 


EXCHANGE AGREEMENT (this “Agreement”), dated
as of                  ,
2010, among DynaVox Inc., a Delaware corporation, and the holders of Holdings
Units (as defined herein) from time to time party hereto.


 


WHEREAS, the parties hereto desire to provide for
the exchange of Holdings Units for shares of Class A Common Stock (as
defined herein), on the terms and subject to the conditions set forth herein;


 


NOW, THEREFORE, in consideration of the mutual
covenants and undertakings contained herein and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:


 


ARTICLE I


 


SECTION 1.1.  
Definitions


 


The following definitions
shall be for all purposes, unless otherwise clearly indicated to the contrary,
applied to the terms used in this Agreement.


 


A “Change in Control” shall be deemed to have
occurred if or upon:


 


(i) the stockholders of the Corporation approve
the sale, lease or transfer, in one or a series of related transactions, of all
or substantially all of the Corporation’s assets (determined on a consolidated
basis) to any person or group (as such term is used in Section 13(d)(3) of
the Exchange Act other than to any subsidiary of the Corporation;


 


(ii) the stockholders of the Corporation
approve a merger or consolidation of the Corporation with any other person,
other than a merger or consolidation which would result in the Voting
Securities of the Corporation outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) at least 50.1% of the total voting power
represented by the Voting Securities of the Corporation or such surviving
entity outstanding immediately after such merger or consolidation;


 


(iii) the stockholders of the Corporation
approve the adoption of a plan the consummation of which would result in the
liquidation or dissolution of the Corporation;


 


(iv) the acquisition, directly or indirectly,
by any person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) (other than (a) a trustee or other fiduciary holding
securities under an employee benefit plan of the Corporation; (b) a
corporation or other entity owned, directly or indirectly, by the stockholders
of the Corporation in substantially the same proportions as their ownership of
stock of the Corporation; (c) Vestar Capital Partners IV, L.P., VCD
Investors LLC and their affiliates; or (d) any party from time to time to
the Securityholders Agreement, dated as of or about the date hereof, by and
among the Corporation, Holdings and the Securityholders from time to time
parties thereto, as such agreement may be amended from time to time,  unless such party together with its
affiliates is the holder of securities representing 


 

















 


at least 50.01% of the
outstanding voting securities of the Corporation or is deemed to beneficially
own at least 50.01% of the outstanding voting securities of the Corporation for
purposes of Rule 16a-1(a)(2) under the Exchange Act, or any group (as
such term is used in Section 13(d)(3) of the Exchange Act) to the
extent that such group may be deemed to exist solely as a result of the
Securityholders Agreement ((a) through (d) collectively are referred
to herein as “Exempt Persons”)) of beneficial ownership (as defined in Rule 13d-3
under the Exchange Act) of more than 50.01% of the aggregate voting power of
the Voting Securities of the Corporation;


 


(v) during any 12 month period, individuals who
at the beginning of such period composed the Board of Directors of the
Corporation (together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of the
Corporation was approved by a vote of 66 2/3% of the directors of the
Corporation then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Corporation then in office; or


 


(vi)  the Corporation (or a directly or
indirectly wholly-owned subsidiary thereof) ceasing to be the sole Managing
Member of Holdings.


 


“Change in Control  Event” means any of the following (i) the
commencement of, or the first public announcement of the intent to commence,
any transaction, including, without limitation, a tender or exchange offer by
any person or entity (other than any Exempt Person), the consummation of which
would result in a Change in Control; (ii) the commencement of, or the
first public announcement of the intent to commence, any proxy solicitation by
any person or entity subject to Rule 14a-12(c) under the Exchange
Act, the consummation of which would result in a Change in Control; (iii) the
Corporation, Holdings or any affiliate thereof entering into an agreement with
any person or entity which, if consummated, would result in a Change in
Control; or (iv) the adoption by the Board of Directors of the Corporation
of resolutions authorizing any transaction or event which, if consummated,
would result in a Change in Control.


 


“Class A Common Stock” means the Class A
common stock, par value $0.01 per share, of the Corporation.


 


“Code” means the Internal Revenue Code of
1986, as amended.


 


“Corporation” means DynaVox Inc., a Delaware
corporation, and any successor thereto.


 


“Exchange” has the meaning set forth in Section 2.1(a) of
this Agreement.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended.


 


“Exchange Rate” means the number of shares of
Class A Common Stock for which a Holdings Unit is entitled to be
Exchanged.  On the date of this
Agreement, the Exchange Rate shall be 1 for 1, subject to adjustment pursuant
to Section 2.2 of this Agreement.


 


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“Holdings” means DynaVox Systems Holdings
LLC, a Delaware limited liability company, and any successor thereto.


 


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


 


“Holdings Unit” means (i) each Class A
Unit (as such term is defined in the Holdings LLC Agreement) issued as of the
date hereof and (ii) each Class A Unit or other interest in Holdings
that may be issued by Holdings in the future that is designated by the
Corporation as a “Holdings Unit”.


 


“Holdings Unitholder” means each holder of
one or more Holdings Units that may from time to time be a party to this
Agreement.


 


“IPO” has the meaning set forth in Section 2.1(a)(i) of
this Agreement.


 


“Permitted Transferee” has the meaning given
to such term in Section 3.1 of this Agreement.


 


“Unvested Units” has the meaning given to
such term in the Holdings LLC Agreement.


 


“Voting Securities” shall mean any securities
of the Corporation which are entitled to vote generally in matters submitted
for a vote of the Corporation’s stockholders or generally in the election of
the Corporation’s board of directors.


 


ARTICLE II


 


SECTION 2.1.       
 Exchange of Holdings Units for Class A
Common Stock.


 


(a)           (i)  Subject to Section 2.1(a)(ii) hereof,
from and after the first anniversary of the date of the closing of the initial
public offering and sale of Class A Common Stock (as contemplated by the
Corporation’s Registration Statement on Form S-1 (File No. 333-164217))
(the “IPO”), each Holdings Unitholder shall be entitled at any
time and from time to time, upon the terms and subject to the conditions
hereof, to surrender Holdings Units (other than Unvested Units) to the
Corporation in exchange for the delivery by the Corporation of a number of
shares of Class A Common Stock that is equal to the product of the number
of Holdings Units surrendered multiplied by the Exchange Rate (such
exchange, an “Exchange”); provided that any such Exchange is for a
minimum of the lesser of 1,000 Holdings Units or all of the Holdings Units
(other than Unvested Units) held by such Holdings Unitholder.


 


(ii)  Notwithstanding
anything to the contrary herein, upon the occurrence of any Change in Control
Event, each Holdings Unitholder shall be entitled, upon the terms and subject
to the conditions hereof, to elect to Exchange Holdings Units for shares of Class A
Common Stock; provided, that any such Exchange pursuant to this sentence shall
be effective immediately prior to the consummation of the Change in Control
(and, for the avoidance of doubt, shall not be effective if such Change of
Control is not consummated); and provided further, that any such election pursuant
to this Section 2.1(a)(ii) may be withdrawn by the 


 


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Holdings Unitholder who
submitted such election by providing written notice to the Corporation not less
than four business days prior to the consummation of the Change in Control.


 


(b)           A Holdings Unitholder shall exercise its right to Exchange
Holdings Units as set forth in Section 2.1(a) above by delivering to
the Corporation a written election of exchange in respect of the Holdings Units
to be Exchanged substantially in the form of Exhibit A hereto, duly
executed by such holder or such holder’s duly authorized attorney, in each case
delivered during normal business hours at the principal executive offices of
the Corporation.  Subject to Section 2.1(a)(ii),
as promptly as practicable following the delivery of such a written election of
exchange, and in any event within three business days, the Corporation shall
deliver or cause to be delivered at the offices of the then-acting registrar
and transfer agent of the Class A Common Stock or, if there is no
then-acting registrar and transfer agent of the Class A Common Stock, at
the principal executive offices of the Corporation, the number of shares of Class A
Common Stock deliverable upon such Exchange, registered in the name of the
relevant Exchanging Holdings Unitholder.  To the extent the Class A Common Stock
is settled through the facilities of The Depository Trust Company, the Company
will, subject to Section 2.1(c) below, upon the written instruction of
an Exchanging Unitholder, use its reasonable best efforts to deliver the shares
of Class A Common Stock deliverable to such Exchanging Unitholder, through
the facilities of The Depository Trust Company, to the account of the
participant of The Depository Trust Company designated by such Exchanging
Holder.


 


(c)           The Corporation and each Exchanging Holdings Unitholder
shall bear their own expenses in connection with the consummation of any
Exchange, whether or not any such Exchange is ultimately consummated, except
that the Corporation shall bear any transfer taxes, stamp taxes or duties, or
other similar taxes in connection with, or arising by reason of, any Exchange;
provided, however, that if any shares of Class A Common Stock are to be
delivered in a name other than that of the Holdings Unitholder that requested
the Exchange, then such Holdings Unitholder and/or the person in whose name
such shares are to be delivered shall pay to the Corporation the amount of any
transfer taxes, stamp taxes or duties, or other similar taxes in connection
with, or arising by reason of, such Exchange or shall establish to the
reasonable satisfaction of the Corporation that such tax has been paid or is
not payable.


 


(d)           The Corporation covenants and agrees that, prior to
taking or causing to be taken any action that would cause interests in Holdings
to not meet the requirements of Treasury Regulation section 1.7704-1(h),
including, without limitation, issuing any Holdings Units in a transaction
required to be registered with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, as amended, it will provide at least 15 business
days advance written notice describing the proposed action in reasonable detail
to the Holdings Unitholders and provide each Holdings Unitholders with the
opportunity to effect an Exchange of all such Holdings Unitholder’s Holdings
Units in accordance with the terms of this Agreement; provided, however, that
in no event will the Corporation take or cause to be taken any action that
would cause interests in Holdings to not meet the requirements of Treasury
Regulation section 1.7704-1(h) prior to the first anniversary of the
closing of the IPO.  Provided that the
notice and opportunity to Exchange contemplated by the previous sentence has
been provided the Holdings Unitholders, then, notwithstanding anything to the
contrary herein, if the Board of Directors of the Corporation, after
consultation with its outside legal counsel and tax advisor, shall determine in
good faith that interests in Holdings do not meet the requirements of Treasury
Regulation 


 


4

















 


section 1.7704-1(h), the Corporation may impose such restrictions on
Exchange as the Corporation may reasonably determine to be necessary or
advisable so that Holdings is not treated as a “publicly traded partnership”
under Section 7704 of the Code.


 


(e)           For the avoidance of doubt, and notwithstanding anything
to the contrary herein, a Holdings Unitholder shall not be entitled to Exchange
Holdings Units to the extent the Corporation reasonably determines in good
faith that such Exchange (i) would be prohibited by law or regulation or (ii) would
not be permitted under any other agreement with the Corporation or its
subsidiaries to which such Holdings Unitholder is then subject (including,
without limitation, the Holdings LLC Agreement) or any written policies of the
Corporation relating to insider trading then applicable to such Holdings
Unitholder.  For avoidance of doubt, no
Exchange shall be deemed to be prohibited by any law or regulation pertaining
to the registration of securities if such securities have been so registered or
if any exemption from such registration requirements is reasonably available.


 


SECTION 2.2.  
Adjustment.


 


(a)           The Exchange Rate shall be adjusted accordingly if there
is: (a) any subdivision (by any unit split, unit distribution,
reclassification, reorganization, recapitalization or otherwise) or combination
(by reverse unit split, reclassification, reorganization, recapitalization or
otherwise) of the Holdings Units that is not accompanied by an identical
subdivision or combination of the Class A Common Stock; or (b) any
subdivision (by any stock split, stock dividend or distribution,
reclassification, reorganization, recapitalization or otherwise) or combination
(by reverse stock split, reclassification, reorganization, recapitalization or
otherwise) of the Class A Common Stock that is not accompanied by an
identical subdivision or combination of the Holdings Units. If there is any
reclassification, reorganization, recapitalization or other similar transaction
in which the Class A Common Stock are converted or changed into another
security, securities or other property, then upon any subsequent Exchange, an
exchanging Holdings Unitholder shall be entitled to receive the amount of such
security, securities or other property that such exchanging Holdings Unitholder
would have received if such Exchange had occurred immediately prior to the
effective date of such reclassification, reorganization, recapitalization or
other similar transaction, taking into account any adjustment as a result of
any subdivision (by any split, distribution or dividend, reclassification,
reorganization, recapitalization or otherwise) or combination (by reverse
split, reclassification, recapitalization or otherwise) of such security,
securities or other property that occurs after the effective time of such
reclassification, reorganization, recapitalization or other similar
transaction. For the avoidance of doubt, if there is any reclassification,
reorganization, recapitalization or other similar transaction in which the Class A
Common Stock are converted or changed into another security, securities or
other property, this Section 2.2 shall continue to be applicable, mutatis mutandis, with respect to such security or other
property.  This Agreement shall apply to
the Holdings Units held by the Holdings Unitholders and their Permitted
Transferees as of the date hereof, as well as any Holdings Units hereafter
acquired by a Holdings Unitholder and his or her or its Permitted Transferees.
This Agreement shall apply to, mutatis mutandis,
and all references to “Holdings Units” shall be deemed to include, any
security, securities or other property of Holdings which may be issued in
respect of, in exchange for or in substitution of Holdings Units by reason of
any distribution or dividend, split, reverse split, 


 


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combination, reclassification, reorganization, recapitalization,
merger, exchange (other than an Exchange) or other transaction.


 


SECTION 2.3.  
Class A Common Stock to be Issued.


 


(a)           The Corporation covenants and agrees to deliver shares of Class A
Common Stock that have been registered under the Securities Act with respect to
any Exchange to the extent that a registration statement is effective and
available for such shares.  In the event
that any Exchange in accordance with this Agreement is to be effected at a time
when any required registration has not become effective or otherwise is
unavailable, upon the request and with the reasonable cooperation of the
Holdings Unitholder requesting such Exchange, the Corporation shall use its
reasonable best efforts to promptly facilitate such Exchange pursuant to any
reasonably available exemption from such registration requirements.  The Corporation shall use its reasonable best
efforts to list the Class A Common Stock required to be delivered upon
exchange prior to such delivery upon each national securities exchange or
inter-dealer quotation system upon which the outstanding Class A Common
Stock may be listed or traded at the time of such delivery. Nothing contained
herein shall be construed to preclude the Corporation or Holdings from
satisfying their obligations in respect of the exchange of the Holdings Units
by delivery of Class A Common Stock which are held in the treasury of the
Corporation or Holdings or any of their subsidiaries.


 


(b)           The Corporation shall at all times reserve and keep
available out of its authorized but unissued Class A Common Stock, solely
for the purpose of issuance upon an Exchange, such number of shares of Class A
Common Stock as shall be deliverable upon any such Exchange; provided that
nothing contained herein shall be construed to preclude the Corporation from
satisfying its obligations in respect of any such Exchange by delivery of
purchased shares of Class A Common Stock (which may or may not be held in
the treasury of the Corporation or any subsidiary thereof).


 


(c)           Prior to the date of this Agreement, the Corporation has
taken all such steps as may be required to cause to qualify for exemption under
Rule 16b-3(d) or (e), as applicable, under the Exchange Act, and be
exempt for purposes of Section 16(b) under the Exchange Act, any
acquisitions or dispositions of equity securities of the Corporation (including
derivative securities with respect thereto) and any securities which may be
deemed to be equity securities or derivative securities of the Corporation for
such purposes that result from the transactions contemplated by this Agreement,
by each director or officer of the Corporation who may reasonably be expected
to be subject to the reporting requirements of Section 16(a) of the
Exchange Act with respect to the Corporation upon the registration of any class
of equity security of the Corporation pursuant to Section 12 of the
Exchange Act (with the authorizing resolutions specifying the name of each such
officer or director whose acquisition or disposition of securities is to be exempted
and the number of securities that may be acquired and disposed of by each such
person pursuant to this Agreement).


 


(d)           If any Takeover Law or other similar law or regulation
becomes or is deemed to become applicable to the this Agreement or any of the
transactions contemplated hereby, the Corporation shall use its reasonable best
efforts to render such law or regulation inapplicable to all of the foregoing.


 


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(e)           The Corporation covenants that all Class A Common
Stock issued upon an Exchange will, upon issuance, be validly issued, fully
paid and non-assessable and not subject to any preemptive right of stockholders
of the Corporation or to any right of first refusal or other right in favor of
any person or entity.


 


ARTICLE III


 


SECTION 3.1.  
Representations and Warranties of the Corporation.  The Corporation represents and warrants that (i) it
is a corporation duly incorporated and is existing in good standing under the
laws of the State of Delaware, (ii) it has all requisite corporate power
and authority to enter into and perform this Agreement and to consummate the
transactions contemplated hereby and to issue the Class A Common Stock in
accordance with the terms hereof, (iii) the execution and delivery of this
Agreement by the Corporation and the consummation by it of the transactions
contemplated hereby (including without limitation, the issuance of the Class A
Common Stock) have been duly authorized by all necessary corporate action on
the part of the Corporation, including but not limited to all actions necessary
to ensure that the acquisition of shares Class A Common Stock pursuant to
the transactions contemplated hereby, to the fullest extent of the Corporation’s
Board of Directors’ power and authority and to the extent permitted by law,
shall not be subject to any “moratorium,” “control share acquisition,” “business
combination,” “fair price” or other form of anti-takeover laws and regulations”
of any jurisdiction that may purport to be applicable to this Agreement or the
transactions contemplated hereby (collectively, “Takeover Laws”), (iv) this
Agreement constitutes a legal, valid and binding obligation of the Corporation
enforceable against the Corporation in accordance with its terms, except as
enforcement may be limited by equitable principles or by bankruptcy,
insolvency, reorganization, moratorium, or similar laws relating to or limiting
creditors’ rights generally, and (v) the execution, delivery and
performance of this Agreement by the Corporation and the consummation by the
Corporation of the transactions contemplated hereby will not (A) result in
a violation of the Certificate of Incorporation of the Corporation or the
Bylaws of the Corporation or (B) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the
Corporation is a party, or (C) result in a violation of any law, rule,
regulation, order, judgment or decree applicable to the Corporation or by which
any property or asset of the Corporation is bound or affected, except with
respect to clauses (B) or (C) for any conflicts, defaults,
accelerations, terminations, cancellations or violations, that would not
reasonably be expected to have a material adverse effect on the Corporation or
its business, financial condition or results of operations.


 


SECTION 3.2.  
Representations and Warranties of the Holdings Unitholders.  Each Holdings Unitholder, severally and not
jointly, represents and warrants that (i) if it is not a natural person,
that it is duly incorporated or formed and, the extent such concept exists in
its jurisdiction of organization, is in good standing under the laws of such
jurisdiction, (ii) it has all requisite legal capacity and authority to
enter into and perform this Agreement and to consummate the transactions
contemplated hereby, (iii) if it is not a natural person, the execution
and delivery of this Agreement by it of the transactions contemplated
hereby  have been duly authorized by all
necessary corporate or other entity action on the part of such Holdings 


 


7

















 


Unitholder, (iv) this Agreement constitutes a legal, valid and
binding obligation of such Holdings Unitholder enforceable against it in
accordance with its terms, except as enforcement may be limited by equitable
principles or by bankruptcy, insolvency, reorganization, moratorium, or similar
laws relating to or limiting creditors’ rights generally, and (v) the
execution, delivery and performance of this Agreement by such Holdings
Unitholder and the consummation by such Holdings Unitholder of the transactions
contemplated hereby will not (A) if it is not a natural person, result in
a violation of the Certificate of Incorporation and Bylaws or other
organizational documents of such Holdings Unitholder or (B) conflict with,
or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which such Holdings Unitholder is a party, or (C) result in
a violation of any law, rule, regulation, order, judgment or decree applicable
such Holdings Unitholder, except with respect to clauses (B) or (C) for
any conflicts, defaults, accelerations, terminations, cancellations or
violations, that would not in any material respect result in the
unenforceability against such Holdings Unitholder of this Agreement.


 


ARTICLE IV


 


SECTION 4.1.  
Additional Holdings Unitholders.  To the extent
a Holdings Unitholder validly transfers any or all of such holder’s Holdings
Units to another person in a transaction in accordance with, and not in
contravention of, the Holdings LLC Agreement, then such transferee (each, a “Permitted
Transferee”) shall have the right to execute and deliver a joinder to
this Agreement, substantially in the form of Exhibit B hereto, whereupon
such Permitted Transferee shall become a Holdings Unitholder hereunder.  To the extent Holdings issues Holdings Units
in the future, then the holder of such Holdings Units shall have the right to execute and deliver a
joinder to this Agreement, substantially in the form of Exhibit B hereto,
whereupon such holder shall become a Holdings Unitholder hereunder.


 


SECTION 4.2.  
Addresses and 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 3.2):


 


(a) 
If to the Corporation, to:


 


2100 Wharton Street


Suite 400


Pittsburgh, PA 15203


Attention: Chief Financial
Officer


Fax: (412) 381-5241


Electronic Mail:
Ken.Misch@dynavoxtech.com


 


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


 


SECTION 4.3.  
Further Action. The parties shall execute and deliver all documents,
provide all information and take or refrain from taking action as may be
necessary or appropriate to achieve the purposes of this Agreement.


 


SECTION 4.4.  
Binding Effect. This Agreement shall be binding upon and inure to the
benefit of all of the parties and, to the extent permitted by this Agreement,
their successors, executors, administrators, heirs, legal representatives and
assigns.


 


SECTION 4.5.  
Severability.  If any term or
other provision of this Agreement is held to be invalid, illegal or incapable
of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
is not affected in any manner materially adverse to any party. Upon a
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest
extent possible.


 


SECTION 4.6.  
Amendment.  The provisions of this
Agreement may be amended only by the affirmative vote or written consent of
each of (i) the Corporation and (ii) Holdings Unitholders holding at
least two thirds of the then outstanding Holdings Units (excluding Holdings
Units held by the Corporation). 
Notwithstanding the foregoing, in addition to any other consent that may
be required, the prior written consent of each of Vestar Capital Partners IV,
L.P. and Edward L. Donnelly, Jr. shall also be required for any amendment
of this Agreement that adversely affects such Holdings Unitholder and/or its
affiliates for so long as such Holdings Unitholder continues, together with its
affiliates, to hold a number of Holdings Units that is equal to or greater than
3% of the number of Holdings Units outstanding immediately following the
closing of the IPO 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 IPO);
provided that except as otherwise provided herein (including, without
limitation, in Section 2.1(d)), no amendment may materially and adversely
affect the rights of a Holdings Unitholder, as such, other than on a pro rata
basis with other Holdings Unitholders without the consent of such Holdings
Unitholder (or, if there is more than one such Holdings Unitholder that is so
affected, without the consent of a 
majority of such affected Holdings Unitholder in accordance with their
holdings of Holdings Units).


 


SECTION 4.7.  
Waiver. No failure by any party to insist upon the strict performance of
any covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon a breach thereof shall constitute waiver of any
such breach of any other covenant, duty, agreement or condition.


 


SECTION 4.8.  
Submission to Jurisdiction; Waiver of Jury Trial.


 


(a)           Any and all disputes which cannot be settled amicably,
including any ancillary claims of any party, arising out of, relating to or in
connection with the validity, negotiation, execution, interpretation,
performance or non-performance of this Agreement (including the validity, scope
and enforceability of this arbitration provision) shall be finally settled by
arbitration conducted by a single arbitrator in New York in accordance with the
then-existing Rules of Arbitration of the International Chamber of
Commerce. If the parties to 


 


9

















 


the dispute fail to agree on the selection of
an arbitrator within thirty (30) days of the receipt of the request for
arbitration, the International Chamber of Commerce shall make the
appointment.  The arbitrator shall be a
lawyer and shall conduct the proceedings in the English language.  Performance under this Agreement shall
continue if reasonably possible during any arbitration proceedings.


 


(b)           Notwithstanding the provisions of paragraph (a), the
parties hereto may bring an action or special proceeding in any court of
competent jurisdiction for the purpose of compelling a party to arbitrate,
seeking temporary or preliminary relief in aid of an arbitration hereunder,
and/or enforcing an arbitration award and, for the purposes of this paragraph
(b), each party hereto (i) expressly consents to the application of
paragraph (c) of this Section 4.8 to any such action or proceeding
and (ii) agrees that proof shall not be required that monetary damages for
breach of the provisions of this Agreement would be difficult to calculate and
that remedies at law would be inadequate.


 


(c)           (i)            EACH
PARTY HERETO IRREVOCABLY SUBMITS TO THE JURISDICTION OF COURTS LOCATED IN NEW
YORK, NEW YORK FOR THE PURPOSE OF ANY JUDICIAL PROCEEDING BROUGHT IN ACCORDANCE
WITH THE PROVISIONS OF THIS SECTION 4.8, OR ANY JUDICIAL PROCEEDING
ANCILLARY TO AN ARBITRATION OR CONTEMPLATED ARBITRATION ARISING OUT OF OR
RELATING TO OR CONCERNING THIS AGREEMENT. Such ancillary judicial proceedings
include any suit, action or proceeding to compel arbitration, to obtain
temporary or preliminary judicial relief in aid of arbitration, or to confirm
an arbitration award. The parties acknowledge that the fora designated by this
paragraph (c) have a reasonable relation to this Agreement, and to the
parties’ relationship with one another.


 


(ii)           The parties hereby waive, to the fullest extent permitted
by applicable law, any objection which they now or hereafter may have to
personal jurisdiction or to the laying of venue of any such ancillary suit,
action or proceeding brought in any court referred to in the preceding
paragraph of this Section 4.8 and such parties agree not to plead or claim
the same.


 


(d)           Notwithstanding any provision of this Agreement to the
contrary, this Section 3.8 shall be construed to the maximum extent
possible to comply with the laws of the State of Delaware, including the
Delaware Uniform Arbitration Act (10 Del. C. § 5701 et  seq.) (the “Delaware Arbitration Act”).  If, nevertheless, it shall be determined by a
court of competent jurisdiction that any provision or wording of this Section 4.8,
including any rules of the International Chamber of Commerce, shall be
invalid or unenforceable under the Delaware Arbitration Act, or other
applicable law, such invalidity shall not invalidate all of this Section 4.8.  In that case, this Section 4.8 shall be
construed so as to limit any term or provision so as to make it valid or
enforceable within the requirements of the Delaware Arbitration Act or other
applicable law, and, in the event such term or provision cannot be so limited,
this Section 3.8 shall be construed to omit such invalid or unenforceable
provision.


 


SECTION 4.9.  
Counterparts. This Agreement may be executed and delivered (including by
facsimile transmission or by e-mail delivery of a “.pdf” format data file) in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which 


 


10

















 


when executed and delivered shall be deemed
to be an original but all of which taken together shall constitute one and the
same agreement. Copies of executed counterparts transmitted by telecopy, by
e-mail delivery of a “.pdf” format data file or other electronic transmission
service shall be considered original executed counterparts for purposes of this
Section 4.9.


 


SECTION 4.10.  
Tax Treatment. This Agreement shall be treated as part of the
partnership agreement of Holdings as described in Section 761(c) of
the Code and Sections 1.704-1(b)(2)(ii)(h) and 1.761-1(c) of the
Treasury Regulations promulgated thereunder. 


 


SECTION 4.11.  
Specific Performance.  The parties
hereto agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. 
It is accordingly agreed that the parties shall be entitled to specific
performance of the terms and provisions hereof, in addition to any other remedy
to which they are entitled at law or in equity.


 


SECTION 4.12.  
Independent Nature of Holdings Unitholders’ Rights and Obligations.  The obligations of each Holdings Unitholder
hereunder are several and not joint with the obligations of any other Holdings
Unitholder, and no Holdings Unitholder shall be responsible in any way for the
performance of the obligations of any other Holdings Unitholder under
hereunder.  The decision of each Holdings
Unitholder to enter into to this Agreement has been made by such Holdings
Unitholder independently of any other Holdings Unitholder. Nothing contained
herein, and no action taken by any Holdings Unitholder pursuant hereto, shall
be deemed to constitute the Holdings Unitholders as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Holdings Unitholders are in any way acting in concert or
as a group with respect to such obligations or the transactions contemplated
hereby and the Corporation acknowledges that the Holdings Unitholders are not
acting in concert or as a group, and the Corporation will not assert any such
claim, with respect to such obligations or the transactions contemplated hereby.


 


SECTION 4.13.  
Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the law of the State of Delaware.


 


11

















 


IN WITNESS WHEREOF, the
parties have caused this Agreement to be duly executed and delivered, all as of
the date first set forth above.


 


	
   

  	
  DYNAVOX INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HOLDINGS UNITHOLDERS

  
	
   

  	
   

  	
   

  
	
   

  	
  Each Holdings Unitholder
  set forth on Annex A hereto

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: Attorney-in-fact

  



 


[Exchange Agreement]


 

















 


EXHIBIT
A


 


[FORM OF]

ELECTION OF EXCHANGE


 


DynaVox Inc.


2100
Wharton Street


Suite 400


Pittsburgh,
PA 15203


Attention:
Chief Financial Officer


 


Reference is hereby made to the Exchange Agreement, dated as of  [               ],
2010 (the “Exchange Agreement”), among DynaVox Inc., a Delaware
corporation, and the holders of Holdings Units (as defined herein) from time to
time party thereto.  Capitalized terms
used but not defined herein shall have the meanings given to them in the
Exchange Agreement.


 


The undersigned Holdings Unitholder hereby transfers to the Corporation
the number of Holdings Units set forth below in Exchange for shares of Class A
Common Stock to be issued in its name as set forth below, as set forth in the
Exchange Agreement.


 


	
  Legal
  Name of Holdings Unitholder:

  	
   

  
	
   

  	
   

  
	
  Address:

  	
   

  
	
   

  	
   

  
	
  Number of Holdings Units
  to be Exchanged:

  	
   

  
					



 


The undersigned hereby
represents and warrants that (i) the undersigned has full legal capacity
to execute and deliver this Election of Exchange and to perform the undersigned’s
obligations hereunder; (ii) this Election of Exchange has been duly
executed and delivered by the undersigned and is the legal, valid and binding
obligation of the undersigned enforceable against it in accordance with the
terms thereof or hereof, as the case may be, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and the
availability of equitable remedies; (iii) the Holdings Units subject to
this Election of Exchange are being transferred to the Corporation free and
clear of any pledge, lien, security interest, encumbrance, equities or claim;
and (iv) no consent, approval, authorization, order, registration or
qualification of any third party or with any court or governmental agency or
body having jurisdiction over the undersigned or the Holdings Units subject to
this Election of Exchange is required to be obtained by the undersigned for the
transfer of such Holdings Units to the Corporation.


 


The undersigned hereby irrevocably
constitutes and appoints any officer of the Corporation as the attorney of the
undersigned, with full power of substitution and resubstitution in the
premises, to do any and all things and to take any and all actions that may be
necessary to transfer to the Corporation the Holdings Units subject to this
Election of Exchange and to deliver to the undersigned the shares of Class A
Common Stock to be delivered in Exchange therefor. 


 

















 


IN WITNESS WHEREOF the
undersigned, by authority duly given, has caused this Election of Exchange to
be executed and delivered by the undersigned or by its duly authorized
attorney.


 


 


	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  
				



 

















 


EXHIBIT
B


 


[FORM OF]

JOINDER AGREEMENT


 


This
Joinder Agreement (“Joinder Agreement”) is a joinder to the Exchange
Agreement, dated as of                ,
2010 (the “Agreement”), among DynaVox Inc., a Delaware corporation (the “Corporation”),
and each of the Holdings Unitholders from time to time party thereto.  Capitalized terms used but not defined in
this Joinder Agreement shall have their meanings given to them in the
Agreement.  This Joinder Agreement shall
be governed by, and construed in accordance with, the law of the State of
Delaware.  In the event of any conflict
between this Joinder Agreement and the Agreement, the terms of this Joinder
Agreement shall control.


 


The undersigned hereby joins
and enters into the Agreement having acquired Holdings Units in Holdings.  By signing and returning this Joinder
Agreement to the Corporation, the undersigned (i) accepts and agrees to be
bound by and subject to all of the terms and conditions of and agreements of a
Holdings Unitholder contained in the Agreement, with all attendant rights,
duties and obligations of a Holdings Unitholder thereunder and (ii) makes
each of the representations and warranties of a Holdings Unitholder set forth
in Section 3.2 of the Agreement as fully as if such representations and
warranties were set forth herein.  The
parties to the Agreement shall treat the execution and delivery hereof by the undersigned
as the execution and delivery of the Agreement by the undersigned and, upon
receipt of this Joinder Agreement by the Corporation, the signature of the
undersigned set forth below shall constitute a counterpart signature to the
signature page of the Agreement.


 


	
  Name:

  	
   

  	
   

  



 


	
  Address for Notices:

  	
   

  	
  With copies to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention: