Exhibit
10.18


	
   

  



 






 


DYNAVOX SYSTEMS HOLDINGS LLC


 


A Delaware Limited Liability Company


 






 


SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT


 


Dated as of January 22, 2008


 


THE MEMBERSHIP INTERESTS
REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
ANY OTHER APPLICABLE SECURITIES LAWS. SUCH INTERESTS MAY NOT BE SOLD,
ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE
REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE
WITH THE OTHER RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.


	
   

  



 

















 


Table of Contents


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I Definitions

  	
  1

  
	
  SECTION 1.1.   Definitions

  	
  1

  
	
  SECTION 1.2.   Terms Generally

  	
  10

  
	
   

  	
   

  
	
  ARTICLE II General Provisions

  	
  10

  
	
  SECTION 2.1.   Formation

  	
  10

  
	
  SECTION 2.2.   Name

  	
  10

  
	
  SECTION 2.3.   Term

  	
  10

  
	
  SECTION 2.4.   Purpose; Powers

  	
  11

  
	
  SECTION 2.5.   Foreign Qualification

  	
  12

  
	
  SECTION 2.6.   Registered Office; Registered Agent;
  Principal Office; Other Offices

  	
  13

  
	
  SECTION 2.7.   No State-Law Membership

  	
  13

  
	
  SECTION 2.8.   Amendment and Restatement

  	
  13

  
	
  SECTION 2.9.   Class A, Class B,
  Class C, Class D, Class E, Class W, Class X,
  Class Y and Class Z Members

  	
  13

  
	
  SECTION 2.10.   IPO

  	
  13

  
	
  SECTION 2.11.   Certificates

  	
  14

  
	
   

  	
   

  
	
  ARTICLE III Management

  	
  14

  
	
  SECTION 3.1.   The Management Committee; Delegation of
  Authority and Duties

  	
  14

  
	
  SECTION 3.2.   Establishment of Management Committee

  	
  15

  
	
  SECTION 3.3.   Management Committee Meetings

  	
  16

  
	
  SECTION 3.4.   Chairman

  	
  16

  
	
  SECTION 3.5.   Approval or Ratification of Acts or
  Contracts

  	
  17

  
	
  SECTION 3.6.   Action by Written Consent or Telephone
  Conference

  	
  17

  
	
  SECTION 3.7.   Officers

  	
  17

  
	
  SECTION 3.8.   Management Matters

  	
  19

  
	
  SECTION 3.9.   Subsidiaries

  	
  19

  
	
  SECTION 3.10.   Liability to Members

  	
  19

  
	
  SECTION 3.11.   Indemnification

  	
  20

  
	
  SECTION 3.12.   Investment Representations of Members

  	
  20

  
	
   

  	
   

  
	
  ARTICLE IV Capital
  Contributions; Allocations; Distributions

  	
  21

  
	
  SECTION 4.1.   Capital Contributions

  	
  21

  
	
  SECTION 4.2.   Capital Accounts

  	
  21

  
	
  SECTION 4.3.   Allocations of Net Income and Net Loss

  	
  21

  
	
  SECTION 4.4.   Distributions

  	
  25

  
	
  SECTION 4.5.   Allocations Upon a Sale of the Company

  	
  30

  
	
  SECTION 4.6.   Security Interest and Right of Set-Off

  	
  31

  



 


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  ARTICLE V Withdrawal;
  Dissolution; Transfer of Membership Interests; Admission of New Members

  	
  31

  
	
  SECTION 5.1.   Member Withdrawal

  	
  31

  
	
  SECTION 5.2.   Dissolution

  	
  31

  
	
  SECTION 5.3.   Transfer of Membership Interests

  	
  32

  
	
  SECTION 5.4.   Admission or Substitution of New
  Members

  	
  32

  
	
  SECTION 5.5.   Transfer of Member’s Interest

  	
  33

  
	
  SECTION 5.6.   Compliance with Law

  	
  33

  
	
   

  	
   

  
	
  ARTICLE VI Reports to
  Members; Tax Matters

  	
  33

  
	
  SECTION 6.1.   Books of Account

  	
  33

  
	
  SECTION 6.2.   Reports

  	
  33

  
	
  SECTION 6.3.   Fiscal Year

  	
  34

  
	
  SECTION 6.4.   Certain Tax Matters

  	
  34

  
	
   

  	
   

  
	
  ARTICLE VII Miscellaneous

  	
  35

  
	
  SECTION 7.1.   Schedules

  	
  35

  
	
  SECTION 7.2.   Governing Law

  	
  35

  
	
  SECTION 7.3.   Successors and Assigns

  	
  36

  
	
  SECTION 7.4.   Confidentiality

  	
  36

  
	
  SECTION 7.5.   Amendments

  	
  36

  
	
  SECTION 7.6.   Notices

  	
  36

  
	
  SECTION 7.7.   Counterparts

  	
  37

  
	
  SECTION 7.8.   Power of Attorney

  	
  37

  
	
  SECTION 7.9.   Entire Agreement

  	
  37

  
	
  SECTION 7.10.   Section Titles

  	
  38

  



 


ii

















 


SECOND AMENDED AND
RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

DYNAVOX SYSTEMS HOLDINGS LLC

A Delaware Limited Liability Company


 


THIS SECOND AMENDED AND
RESTATED LIMITED LIABILITY COMPANY AGREEMENT of DynaVox Systems Holdings LLC,
dated and effective as of January 22, 2008 (this “Agreement”), is
adopted, executed and agreed to, for good and valuable consideration, by and
among, Vestar Capital Partners IV, L.P., a Delaware limited partnership (“VCP
IV”), VCD Investors LLC, a Delaware limited liability company (“VCD”
and, together with VCP IV, the “Vestar Member”), DynaVox Investors LLC,
a Delaware limited liability company (“DynaVox Investors Member”), Park
Avenue Equity Partners, L.P., a Delaware limited partnership (the “Park
Avenue Member”), the institutions listed on the signature pages hereto
(collectively, the “Institutional Members”), and the other individuals
or institutions listed as members in the books and records of the Company, and
each other Person who becomes a Member in accordance with the terms of this
Agreement. Any reference in this Agreement to the Vestar Member, the Park
Avenue Member or the Institutional Members shall include such Member’s
successors to the extent such successors have become substituted Members in
accordance with the provisions of this Agreement.


 


WHEREAS, as of April 20,
2004, DynaVox Investors Member formed the Company as a limited liability
company under the Delaware Limited Liability Company Act, Title 6, §§ 18-101,
et seq, as it may be amended from time to time (the “Act”), by executing
the Limited Liability Company Agreement of DynaVox Systems Holdings LLC (the “Original
Agreement”) and filing a Certificate of Formation with respect thereto to
be filed with the Delaware Secretary of State; and


 


WHEREAS, as of May 13,
2004, the Original Agreement was amended and restated in accordance with its
terms (the “Amended Agreement”);


 


WHEREAS, the Management
Committee desires to amend and restate the Amended Agreement to create new
classes of Units, to admit Additional Members, and to reflect related matters,
all in accordance with Section 7.5 hereof;


 


NOW THEREFORE, in
consideration of the mutual covenants and agreements contained herein, the
parties hereto, each intending to be legally bound, agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


SECTION 1.1.   Definitions.  Unless the context otherwise requires, the
following terms shall have the following meanings for purposes of this
Agreement:


 

















 


“Act” means the
Delaware Limited Liability Company Act, Title 6, §§ 18-101, et seq, as it may
be amended from time to time.


 


“Additional Member” means any Person that has
been admitted to the Company as a Member pursuant to Section 5.4 by virtue
of having received his Membership Interest from the Company and not from any
other Member or Assignee.


 


“Adjusted Capital Account Deficit” means,
with respect to any Member, the deficit balance, if any, in such Member’s
Capital Account as of the end of the relevant fiscal year, after giving effect
to the following adjustments:


 


(i)                                     decrease such
deficit by any amounts which such Member is obligated to restore pursuant to
this Agreement or is deemed to be obligated to restore pursuant to Treasury
Regulation Section 1.704-1(b)(2)(ii)(c) or the penultimate sentence
of each of Treasury Regulation Sections 1.704-2(i)(5) and 1.704-2(g); and


 


(ii)                                  increase such
deficit by the items described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4),
(5) and (6).


 


“Affiliate” when used with reference to
another Person means any Person (other than the Company), directly or
indirectly, through one or more intermediaries, controlling, controlled by, or
under common control with, such other Person. 
In addition, Affiliates of a Member shall include all partners,
officers, employees and former partners, officers or employees of, all
consultants or advisors to, and all other Persons who directly or indirectly
receive compensation from such Member.


 


“Agreement” has the meaning set forth in the
preamble above.


 


“Amended Agreement” has the meaning set forth
in the preamble above.


 


“Applicable Percentage” shall have the
meaning given to such term in each Management Unit Subscription Agreement or
Director Unit Subscription Agreement between the Company and a Member with
respect to Class B Units, Class C Units, Class D Units, Class E
Units, Class W Units, Class X Units, Class Y Units and Class Z
Units held by such Member.


 


“Assignee” means any transferee to which a
Member or another Assignee has transferred its interest in the Company in
accordance with Article V.


 


“Bankruptcy” means, with respect to any
Person, the occurrence of any of the following events:  (i) the filing of an application by such
Person for, or a consent to, the appointment of a trustee or custodian of his
assets; (ii) the filing by such Person of a voluntary petition in
Bankruptcy or the seeking of relief under Title 11 of the United States Code,
as now constituted or hereafter amended, or the filing of a pleading in any
court of record admitting in writing his inability to pay his debts as they
become due; (iii) the failure of such Person to pay his debts as such
debts become due; (iv) the making by such Person of a general assignment
for the benefit of creditors; (v) the filing by such Person of an answer
admitting the material allegations of, or his consenting to, or defaulting in
answering, a Bankruptcy petition filed 


 


2

















 


against him in any
Bankruptcy proceeding or petition seeking relief under Title 11 of the United
States Code, as now constituted or as hereafter amended; or (vi) the entry
of an order, judgment or decree by any court of competent jurisdiction
adjudicating such Person a bankrupt or insolvent or for relief in respect of
such Person or appointing a trustee or custodian of his assets and the
continuance of such order, judgment or decree unstayed and in effect for a
period of 60 consecutive days.


 


“Capital Account” means, with respect to any
Member, the account maintained for such Member in accordance with the following
provisions:


 


(a)                                  To each Member’s
Capital Account there shall be added such Member’s Capital Contributions, such
Member’s share of Net Income and any items in the nature of income or gain
which are specially allocated pursuant to Section 4.3(c) hereof, and
the amount of any Company liabilities assumed by such Member or which are
secured by any property distributed to such Member.


 


(b)                                 To each Member’s
Capital Account there shall be subtracted the amount of cash and the Gross
Asset Value of any property distributed to such Member pursuant to any
provision of this Agreement, such Member’s distributive share of Net Losses and
any items in the nature of expenses or losses which are specially allocated
pursuant to Section 4.3(c) hereof, and the amount of any liabilities
of such Member assumed by the Company or which are secured by any property
contributed by such Member to the Company.


 


(c)                                  In the event
any interest in the Company is transferred in accordance with the terms of this
Agreement, the transferee shall succeed to the Capital Account of the
transferor to the extent it relates to the transferred interest.


 


(d)                                 In determining
the amount of any liability for purposes of subparagraphs (a) and (b) hereof,
there shall be taken into account Code Section 752(c) and any other
applicable provisions of the Code and Regulations.


 


(e)                                  The foregoing
provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Regulations Section 1.704-1(b),
and shall be interpreted and applied in a manner consistent with such Regulations.


 


“Capital Contribution” means, with respect to
any Member, the amount of cash and the initial Gross Asset Value of any
property (other than money) contributed from time to time to the Company by
such Member.


 


“Certificate” has the meaning set forth in Section 1.1.


 


“Class A Member” has the meaning set
forth in Section 2.9.


 


“Class A Units” means the Class A
Common Units of the Company.


 


“Class B Member” has the meaning set
forth in Section 2.9.


 


“Class B Units” means the Class B
Common Units of the Company.


 


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“Class C Member” has the meaning set
forth in Section 2.9.


 


“Class C Units” means the Class C
Common Units of the Company.


 


“Class D Member” has the meaning set
forth in Section 2.9.


 


“Class D Units” means the Class D
Common Units of the Company.


 


“Class E Member” has the meaning set
forth in Section 2.9.


 


“Class E Units” means the Class E
Common Units of the Company.


 


“Class E Units Allocation Percentage”
has the meaning set forth in Section 4.4(a)(iii)(E).


 


“Class W Member” has the meaning set
forth in Section 2.9.


 


“Class W Units” means the Class W
Common Units of the Company.


 


“Class X Member” has the meaning set
forth in Section 2.9.


 


“Class X Units” means the Class X
Common Units of the Company.


 


“Class Y Member” has the meaning set
forth in Section 2.9.


 


“Class Y Units” means the Class Y
Common Units of the Company.


 


“Class Z Member” has the meaning set
forth in Section 2.9.


 


“Class Z Units” means the Class Z
Common Units of the Company.


 


“Code” means the Internal Revenue Code of
1986, as amended from time to time, or any successor statute.  Any reference herein to a particular
provision of the Code shall mean, where appropriate, the corresponding
provision in any successor statute.


 


“Company” means DynaVox Systems Holdings LLC


 


“Company Minimum Gain” has the meaning set
forth in Regulations Section 1.704-2(d).


 


“Control” when used with reference to any
Person means the power to direct the management or policies of such Person,
directly or indirectly, by or through stock or other equity ownership, agency
or otherwise, or pursuant to or in connection with an agreement, arrangement or
understanding (written or oral); and the terms “controlling” and “controlled”
shall have meanings correlative to the foregoing.


 


“Current Capital Contribution” has the
meaning set forth in Section 4.1.


 


4

















 


“Depreciation” means, for each fiscal year or
other period, an amount equal to the depreciation, amortization or other cost
recovery deduction allowable with respect to an asset for such year or other
period, except that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such year or
other period, Depreciation shall be an amount which bears the same ratio to
such beginning Gross Asset Value as the federal income tax depreciation,
amortization or other cost recovery deduction for such year or other period
bears to such beginning adjusted tax basis; provided, however, that if the
federal income tax depreciation, amortization or other cost recovery deduction
for such year is zero, Depreciation shall be calculated with reference to such
beginning Gross Asset Value using any reasonable method selected by the Management
Committee.


 


“Distributable Assets” means, with respect to
any fiscal period, all cash receipts and (if distribution thereof is determined
to be necessary by a majority of the Management Committee) other assets of the
Company from any and all sources, reduced by operating cash expenses, payments
(if any) required to be made in connection with any loan to the Company and any
reserve for contingencies or escrow required, in the good faith judgment of the
Management Committee, in connection therewith.


 


“Distribution Event” means any time a Member
is entitled to receive a distribution pursuant to Section 4.4.


 


“Financing Default” means an event which
would constitute (or with notice or lapse of time or both would constitute) an
event of default under any of the following as they may be amended from time to
time: (i) any agreement under which an amount of indebtedness of the
Company or any of its subsidiaries in excess of $1,000,000 is outstanding as of
the time of the aforementioned event, and any extensions, renewals,
refinancings or refundings thereof in whole or in part; (ii) any
provisions of the operating agreement of the Company or the Company’s or any of
its subsidiaries’ organizational documents designating the terms of the Company’s
units or capital stock or setting forth restrictive financial covenants; (iii) any
amendment of, supplement to or other modification of any of the instruments
referred to in clauses (i) through (ii) above; and (iv) any of
the securities issued pursuant to or whose terms are governed by the terms of
any of the agreements set forth in clauses (i) through (iii) above,
and any extensions, renewals, refinancings or refundings thereof in whole or in
part.


 


“Gross Asset Value” means, with respect to
any asset, the asset’s adjusted basis for federal income tax purposes, except
as follows:


 


(a)                                 The initial
Gross Asset Value of any asset contributed by a Member to the Company shall be
the gross fair market value of such asset, as determined by the contributing
Member and the Company.


 


(b)                                The Gross Asset
Values of all Company assets shall be adjusted to equal their respective gross
fair market values, as determined by mutual consent of the Members, as of the
following times:


 


(i)                                     the acquisition
of an additional interest in the Company (other than in connection with the
execution of this Agreement) by a new or existing 


 


5

















 


Member
in exchange for more than a de minimis Capital Contribution, if the Management
Committee reasonably determines that such adjustment is necessary or
appropriate to reflect the relative economic interests of the Members in the
Company;


 


(ii)                                  the
distribution by the Company to a Member of more than a de minimis amount of
Company property as consideration for an interest in the Company, if the
Management Committee reasonably determines that such adjustment is necessary or
appropriate to reflect the relative economic interests of the Members in the
Company;


 


(iii)                               the liquidation
of the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);
and


 


(iv)                              such other
times as the Management Committee shall reasonably determine necessary or
advisable in order to comply with Regulations Sections 1.704-1(b) and
1.704-2.


 


(c)                                  The Gross Asset
Value of any Company asset distributed to a Member shall be the gross fair
market value of such asset on the date of distribution, as reasonably
determined by the Management Committee (provided that, in the case of such
assets which are securities, the fair market value thereof shall be reduced (a) if
and to the extent that a block sale of all of such securities is reasonably
likely, in the good faith judgment of a registered broker-dealer affiliated
with a reputable, nationally recognized brokerage house, to depress the trading
price of such securities, (b) if and to the extent appropriate, in the
good faith judgment of the Management Committee, due to illiquidity of such
securities and (c) for any sales or other commissions reasonably likely to
be incurred or applied in a sale of such securities).


 


(d)                                 The Gross Asset
Values of Company assets shall be increased (or decreased) to reflect any
adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or
Code Section 743(b), but only to the extent that such adjustments are
taken into account in determining Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m);
provided, however, that Gross Asset Values shall not be adjusted pursuant to
this subparagraph (d) to the extent that the Members determine that an
adjustment pursuant to subparagraph (b) of this definition of Gross Asset
Value is necessary or appropriate in connection with a transaction that would
otherwise result in an adjustment pursuant to this subparagraph (d).


 


(e)                                  If the Gross Asset
Value of a Company asset has been determined or adjusted pursuant to
subparagraph (a), (b), or (d) of this definition of Gross Asset Value,
then such Gross Asset Value shall thereafter be adjusted by the Depreciation
taken into account with respect to such asset for purposes of computing Net
Income and Net Losses.


 


“Initial Capital Contribution” has the
meaning set forth in Section 4.1.


 


“Institutional Members” has the meaning set
forth in the preamble above.


 


6














 


“IPO” shall mean the first underwritten
public offering of equity securities of the Company pursuant to an effective
registration statement under the Securities Act of 1933, as amended.


 


“IRR” shall mean the cumulative internal rate
of return of the relevant Members (calculated as provided below), as of any
date, where the internal rate of return for such Members shall be the annually
compounded rate of return which results in the following amount having a net
present value equal to zero: (i) the aggregate amount of cash and Gross
Asset Value of any assets distributed to such Members pursuant to Section 4.4
of this Agreement from time to time on a cumulative basis through such date
(provided that in no circumstances shall any fees paid to such Members or expenses
reimbursed to such Members from time to time under this Agreement or otherwise
be included in this clause (i)), minus (ii) the aggregate amount of the
Capital Contributions made by such Members from time to time on a cumulative
basis through such date.  In determining
the IRR, the following shall apply:  (a) Capital
Contributions shall be deemed to have been made on the last day of the month in
which they are made (except for the initial Capital Contribution of the
Additional Member admitted hereby, which shall be deemed to have been made on
the date hereof); (b) distributions shall be deemed to have been made on
the last day of the month in which they are made; (c) all distributions
made pursuant to Section 4.4(i) shall not be taken into account in computing
the IRR under this definition; and (d) the rates of return shall be per
annum rates and all amounts shall be calculated on a annually compounded basis,
and on the basis of a 365-day year.


 


“Management Committee” means the Management
Committee established pursuant to Section 3.2.


 


“Member” means the Vestar Member, the Park
Avenue Member, the Institutional Members and each other Person who is hereby or
hereafter admitted as a Member in accordance with the terms of this Agreement
and the Act. The Members shall constitute the “members” (as that term is
defined in the Act) of the Company. Notwithstanding any provision of this
Agreement to the contrary, the Members shall constitute a single class or group
of members of the Company for all purposes of the Act and this Agreement.


 


“Member Minimum Gain” means minimum gain
attributable to Member Nonrecourse Debt determined in accordance with
Regulations Section 1.704-2(i).


 


“Member Nonrecourse Debt” has the meaning set
forth in Regulations Section 1.704-2(b)(4).


 


“Member Nonrecourse Deduction” has the
meaning set forth in Regulations Section 1.704-2(i)(2).


 


“Membership Interest” means, with respect to
each Member, such Member’s aggregate ownership interest in the Company, which
shall consist of an interest in the Company’s Class A Units, Class B
Units, Class C Units, Class D Units, Class E Units, Class W
Units, Class X Units, Class Y Units and/or Class Z Units.


 


“Net Income” or “Net Loss” means for
each year of the Company, an amount equal to the Company’s taxable income or
loss for such fiscal year, determined in accordance 


 


7

















 


with Code Section 703(a) (for
this purpose, all items of income, gain, loss, or deduction required to be
stated separately pursuant to Code Section 703(a)(1) shall be
included in taxable income or loss), with the following adjustments:


 


(a)                                  Any income of
the Company that is exempt from federal income tax and not otherwise taken into
account in computing Net Income or Net Loss pursuant to this definition of Net
Income or Net Loss shall be added to such taxable income or loss;


 


(b)                                 Any
expenditures of the Company described in Code Section 705(a)(2)(B) or
treated as Code Section 705(a)(2)(B) expenditures pursuant to
Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into
account in computing Net Income or Net Loss pursuant to this definition of Net
Income or Net Loss shall be subtracted from such taxable income or loss;


 


(c)                                  In the event
the Gross Asset Value of any Company asset is adjusted pursuant to subparagraph
(b) or (c) of the definition of Gross Asset Value, the amount of such
adjustment shall be taken into account as gain or loss from the disposition of
such asset for purposes of computing Net Income or Net Loss;


 


(d)                                 Gain or loss
resulting from any disposition of property with respect to which gain or loss
is recognized for federal income tax purposes shall be computed by reference to
the Gross Asset Value of the property disposed of, notwithstanding that the
adjusted tax basis of such property differs from its Gross Asset Value;


 


(e)                                  In lieu of the
depreciation, amortization, and other cost recovery deductions taken into
account in computing such taxable income or loss, Depreciation shall be taken
into account for such fiscal year;


 


(f)                                    To the extent
an adjustment to the adjusted tax basis of any Company asset pursuant to Code Section 734(b) is
required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to
be taken into account in determining Capital Accounts as a result of a
distribution other than in liquidation of a Member’s interest in the Company,
the amount of such adjustment shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases the basis of the asset) from the disposition of the asset and shall
be taken into account for purposes of computing Net Income or Net Loss; and


 


(g)                                 Notwithstanding
any other provision of this definition of Net Income or Net Loss, any items
which are specially allocated pursuant to Section 4.3(c) hereof shall
not be taken into account in computing Net Income or Net Loss.  The amounts of the items of Company income,
gain, loss, or deduction available to be specially allocated pursuant to Section 4.3(c) hereof
shall be determined by applying rules analogous to those set forth in this
definition of Net Income or Net Loss.


 


“Nonrecourse Deductions” has the meaning set
forth in Regulations Section 1.704-2(c).


 


8

















 


“Officer” means each Person designated as an
officer of the Company pursuant to Section 3.7, subject to such Section 3.7
and any resolution of the Management Committee appointing such Person as an
officer or relating to such appointment.


 


“Original Agreement” has the meaning set
forth in the preamble above.


 


“Park Avenue Member” has the meaning set
forth in the preamble above.


 


“Person” means a natural person, partnership
(whether general or limited), limited liability company, trust, estate,
association, corporation, custodian, nominee or any other individual or entity
in its own or any representative capacity.


 


“Proceeding” has the meaning set forth in Section 3.11.


 


“Regulations” or “Treasury Regulations”
means the Income Tax Regulations, including temporary Regulations, promulgated
under the Code, as such Regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).


 


“Regulatory Allocations” has the meaning set
forth in Section 4.3(c) of this Agreement.


 


“Representative” has the meaning set forth in
Section 3.2(a) of this Agreement.


 


“Sale of the Company” shall mean a “Sale of
the Company” (as defined in the Securityholders Agreement) or a dissolution of
the Company in accordance with this Agreement (other than transactions effected
for the purpose of changing, directly or indirectly, the form of organization
or the organizational structure of the Company and/or any of its subsidiaries).


 


“Securities” means any debt or equity
securities of any issuer, including without limitation common and preferred
stock and interests in limited liability companies (including warrants, rights,
put and call options and other options relating thereto or any combination
thereof), notes, bonds, debentures, trust receipts and other obligations, instruments
or evidences of indebtedness, other property or interests commonly regarded as
securities, interests in real property, whether improved or unimproved,
interests in oil and gas properties and mineral properties, short-term
investments commonly regarded as money market investments, bank deposits and
interests in personal property of all kinds, whether tangible or intangible.


 


“Securityholders Agreement” means the
Securityholders Agreement dated as of the date hereof among the Company and
each Member, as it may be amended or supplemented from time to time.


 


“Substitute Member” means any Assignee that
has been admitted to the Company as a Member pursuant to Section 5.6 by
virtue of such Assignee’s receiving all or a portion of a Membership Interest from
a Member or its Assignee and not from the Company.


 


“Successor in Interest” means any (i) shareholder
of; (ii) trustee, custodian, receiver or other Person acting in any
Bankruptcy or reorganization proceeding with respect to; (iii) assignee
for the benefit of the creditors of; (iv) officer, director or partner of;
(v) trustee or 


 


9

















 


receiver, or former officer,
director or partner, or other fiduciary acting for or with respect to the
dissolution, liquidation or termination of; or (vi) other executor,
administrator, committee, legal representative or other successor or assign of,
any Member, whether by operation of law or otherwise.


 


“Tax Matters Member” has the meaning set
forth in Section 6.4(b).


 


“Units” means, as the case may be, the
Company’s Class A Units, Class B Units, Class C Units, Class D
Units, Class E Units, Class W Units, Class X Units, Class Y
Units and/or Class Z Units.


 


“Vestar Member” has the meaning set forth in
the preamble above.


 


SECTION 1.2.   Terms Generally.  The definitions in Section 1.1 shall
apply equally to both the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The term “person” includes individuals,
partnerships, joint ventures, corporations, trusts, governments (or agencies or
political subdivisions thereof) and other associations and entities.  The words “include,” “includes” and “including”
shall be deemed to be followed by the phrase “without limitation.”  All the terms herein that relate to
accounting matters shall be interpreted in accordance with generally accepted
accounting principles from time to time in effect.  All references to “Sections” and “Articles”
shall refer to Sections and Articles of this Agreement unless otherwise
specified.  The words “hereof” and “herein”
and similar terms shall relate to this Agreement.


 


ARTICLE II


 


GENERAL PROVISIONS


 


SECTION 2.1.   Formation.  The Company has been organized as a Delaware
limited liability company by the execution and filing of a Certificate of
Formation (the “Certificate”) by the Vestar Member, as an initial
Member, under and pursuant to the Act. 
The rights, powers, duties, obligations and liabilities of the Members
shall be determined pursuant to the Act and this Agreement. To the extent that
the rights, powers, duties, obligations and liabilities of any Member are
different by reason of any provision of this Agreement than they would be in
the absence of such provision, this Agreement shall, to the extent permitted by
the Act, control.


 


SECTION 2.2.   Name.  The name of the Company is “DynaVox Systems
Holdings LLC,” and all Company business shall be conducted in that name or in
such other names that comply with applicable law as the Management Committee
may select from time to time.


 


SECTION 2.3.   Term.  The term of the Company commenced on the date
the Certificate was filed with the office of the Secretary of State of Delaware
and shall continue in existence until December 31, 2030 or dissolution
prior thereto as determined under Section 5.2.


 


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SECTION 2.4.   Purpose; Powers.  (a)  The nature of the business or
purposes to be conducted or promoted by the Company is to engage in any lawful
act or activity for which limited liability companies may be organized under
the Act. The Company may engage in any and all activities necessary, desirable
or incidental to the accomplishment of the foregoing. Notwithstanding anything
herein to the contrary, nothing set forth herein shall be construed as
authorizing the Company to possess any purpose or power, or to do any act or
thing, forbidden by law to a limited liability company organized under the laws
of the State of Delaware.


 


(b)                                 In furtherance
of its purposes stated in Section 2.4(a), the Company shall have all
powers necessary, suitable or convenient for the accomplishment of its
purposes, alone or with others, as principal or agent, including, without
limitation, the following:


 


(i)                                     to conduct its
business, carry on its operations and have and exercise the powers granted to a
limited liability company by the Act in any state, territory, district or
possession of the United States, or in any foreign country that may be
necessary, convenient or incidental to the accomplishment of the purpose of the
Company;


 


(ii)                                  to acquire by
purchase, lease, contribution of property or otherwise, own, hold, operate,
maintain, finance, refinance, improve, lease, sell, convey, mortgage, transfer,
demolish or dispose of any real or personal property that may be necessary,
convenient or incidental to the accomplishment of the purpose of the Company;


 


(iii)                               to enter into,
perform and carry out contracts of any kind, including contracts with any
Member or any Affiliate thereof, or any agent of the Company necessary to, in
connection with, convenient to or incidental to the accomplishment of the
purpose of the Company;


 


(iv)                              to purchase,
take, receive, subscribe for or otherwise acquire, own, hold, vote, use,
employ, sell, mortgage, lend, pledge, or otherwise dispose of, and otherwise
use and deal in and with, shares or other interests in or obligations of
domestic or foreign corporations, associations, general or limited partnerships
(including the power to be admitted as a partner thereof and to exercise the
rights and perform the duties created thereby), trusts, limited liability
companies (including the power to be admitted as a member or appointed as a
manager thereof and to exercise the rights and perform the duties created
thereby) or individuals or direct or indirect obligations of the United States
or of any government, state, territory, governmental district or municipality
or of any instrumentality of any of them;


 


(v)                                 to lend money
for any proper purpose, to invest and reinvest its funds and to take and hold
real and personal property for the payment of funds so loaned or invested;


 


(vi)                              to sue and be
sued, complain and defend, and participate in administrative or other proceedings,
in its name;


 


11

















 


(vii)                           to appoint
employees and agents of the Company and define their duties and fix their
compensation;


 


(viii)                        to indemnify
any Person in accordance with the Act and to obtain any and all types of
insurance;


 


(ix)                                to cease its
activities and cancel its Certificate;


 


(x)                                   to negotiate,
enter into, renegotiate, extend, renew, terminate, modify, amend, waive,
execute, acknowledge or take any other action with respect to any lease,
contract or security agreement in respect of any assets of the Company;


 


(xi)                                to borrow money
and issue evidences of indebtedness and guaranty indebtedness (whether of the
Company or any of its Subsidiaries), and to secure the same by a mortgage,
pledge or other lien on the assets of the Company;


 


(xii)                             to pay,
collect, compromise, litigate, arbitrate or otherwise adjust or settle any and
all other claims or demands of or against the Company or to hold such proceeds
against the payment of contingent liabilities; and


 


(xiii)                          to make,
execute, acknowledge and file any and all documents or instruments, or to take
such other action, necessary, convenient or incidental to the accomplishment of
the purpose of the Company.


 


(c)                                  Management Committee.  Subject to the provisions of this Agreement, (i) the
Company may, with the approval of the Management Committee, enter into and
perform any and all documents, agreements and instruments contemplated thereby,
all without any further act, vote or approval of any Member and (ii) the
Management Committee may authorize any Person (including any Member or Officer)
to enter into and perform any document on behalf of the Company.


 


(d)                                 Merger.  Subject to the provisions of this Agreement,
the Company may, with approval of the Management Committee and without the need
for any further act, vote or approval of any Member, merge with, or consolidate
into, another limited liability company (organized under the laws of Delaware
or any other state), a corporation (organized under the laws of Delaware or any
other state) or other business entity (as defined in Section 18-209(a) of
the Act), regardless of whether the Company is the survivor of such merger or
consolidation.


 


SECTION 2.5.   Foreign
Qualification.  Prior to the Company’s
conducting business in any jurisdiction other than Delaware, the Management
Committee shall cause the Company to comply, to the extent procedures are
available and those matters are reasonably within the control of the Officers,
with all requirements necessary to qualify the Company as a foreign limited
liability company in that jurisdiction. At the request of the Management
Committee or any officer, each Member shall execute, acknowledge, swear to and
deliver all certificates and other instruments conforming with this Agreement
that are necessary or appropriate to qualify, continue and terminate the
Company as a foreign limited liability company in all such jurisdictions in
which the Company may conduct business.


 


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SECTION 2.6.   Registered Office;
Registered Agent; Principal Office; Other Offices.  The registered office of the Company required
by the Act to be maintained in the State of Delaware shall be the office of the
initial registered agent named in the Certificate or such other office (which
need not be a place of business of the Company) as the Management Committee may
designate from time to time in the manner provided by law. The registered agent
of the Company in the State of Delaware shall be the initial registered agent
named in the Certificate or such other Person or Persons as the Management
Committee may designate from time to time in the manner provided by law. The
principal office of the Company shall be at such place as the Management
Committee may designate from time to time, which need not be in the State of
Delaware, and the Company shall maintain records there. The Company may have
such other offices as the Management Committee may designate from time to time.


 


SECTION 2.7.   No State-Law
Membership.  The Members intend that
the Company shall not be a partnership (including, without limitation, a
limited partnership) or joint venture, and that no Member, Representative or
Officer shall be a partner or joint venturer of any other Member,
Representative or Officer, for any purposes other than federal and, if
applicable, state tax purposes, and this Agreement shall not be construed to
the contrary. The Members intend that the Company shall be treated as a
partnership for federal and, if applicable, state income tax purposes, and each
Member and the Company shall file all tax returns and shall otherwise take all
tax and financial reporting positions in a manner consistent with such
treatment.


 


SECTION 2.8.   Amendment and
Restatement.  This Agreement amends,
restates and supersedes in its entirety the Amended Agreement.


 


SECTION 2.9.   Class A, Class B,
Class C, Class D, Class E, Class W, Class X, Class Y
and Class Z Members.  Each
Member of the Company shall be a “Class A Member”, “Class B
Member”, “Class C Member”, “Class D Member”, “Class E
Member”, “Class W Member”, “Class X Member”, “Class Y
Member” and/or “Class Z Member”.  Each category of Member shall have the rights
set forth herein.  Any holder of a Class A
Unit shall be a Class A Member.  Any
holder of a Class B Unit shall be a Class B Member.  Any holder of a Class C Unit shall be a Class C
Member.  Any holder of a Class D
Unit shall be a Class D Member.  Any
holder of a Class E Unit shall be a Class E Member.  Any holder of a Class W Unit shall be a Class W
Member.  Any holder of a Class X
Unit shall be a Class X Member.  Any
holder of a Class Y Unit shall be a Class Y Member.  Any holder of a Class Z Unit shall be a Class Z
Member.  The number of Class A
Units, Class B Units, Class C Units, Class D Units, Class E
Units, Class W Units, Class X Units, Class Y Units and/or Class Z
Units initially held by each Member is set forth in the books and records of
the Company.


 


SECTION 2.10.   IPO. Upon the
consummation of the IPO, the Company shall make adequate and equitable
provisions such that the Applicable Percentage of each Unit holder’s Class B
Units, Class C Units, Class D Units, Class E Units, Class W
Units, Class X Units, Class Y Units and Class Z Units shall
become converted into fully paid and non-assessable shares of common stock of
the Company.  If the IPO occurs prior to
the end of the Company’s fiscal year 2009, the Company shall make adequate and
equitable provisions such that a percentage of each Unit holder’s Class B
Units, Class C Units, Class D Units, Class E Units, Class W
Units, Class X Units, Class Y Units and Class Z Units equal to
100% minus the 


 


13

















 


Applicable Percentage shall
become converted into restricted shares of common stock with vesting and other
terms consistent with the definition of “Applicable Percentage” in such holder’s
Management Unit Subscription Agreement with the Company.  All calculations and other actions necessary
to effect the conversion of the Class B Units, Class C Units, Class D
Units, Class E Units, Class W Units, Class X Units, Class Y
Units and Class Z Units contemplated in this Section 2.10 shall be
made by the Management Committee in its good faith discretion.


 


SECTION 2.11.   Certificates.
All membership interests in the Company, if certificated, shall be certificated
in the form attached hereto as Exhibit A or in such other form as the
Management Committee may elect. The Company hereby irrevocably elects that all
membership interests in the Company shall be securities governed by Article 8
of the Uniform Commercial Code as in effect in the State of New York. Each
certificate evidencing membership interests in the Company shall bear the
following legend:


 


“THIS CERTIFICATE EVIDENCES AN INTEREST IN DYNAVOX SYSTEMS HOLDINGS LLC
AND SHALL BE A SECURITY FOR PURPOSES OF ARTICLE 8 OF THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN THE STATE OF NEW YORK.”


 


This provision shall not be amended, and no such
purported amendment to this provision, shall be effective until all outstanding
certificates have been surrendered for cancellation.


 


ARTICLE III


 


MANAGEMENT


 


SECTION 3.1.  
The Management Committee; Delegation of Authority and Duties.


 


(a)                                  Members and Management
Committee.  The
Members, acting through the Management Committee, shall manage and control the
business and affairs of the Company, and shall possess all rights and powers as
provided in the Act and otherwise by law. Except as otherwise expressly
provided for herein, the Members hereby consent to the exercise by the
Management Committee of all such powers and rights conferred on them by the Act
with respect to the management and control of the Company. Notwithstanding the
foregoing and except as explicitly set forth in this Agreement, if a vote,
consent or approval of the Members is required by the Act or other applicable
law with respect to any act to be taken by the Company or matter considered by
the Management Committee, the Members agree that they shall be deemed to have
consented to or approved such act or voted on such matter in accordance with a
vote of the Management Committee on such act or matter. No Member, in his or
its capacity as a Member, shall have any power to act for, sign for or do any
act that would bind the Company. The Members, acting through the Management
Committee, shall devote such time and effort to the affairs of the Company as
they may deem appropriate for the oversight of the management and 


 


14

















 


affairs of the Company. Each
Member acknowledges and agrees that no Member shall, in his or its capacity as
a Member, be bound to devote all of such Member’s business time to the affairs
of the Company, and that each Member and such Member’s Affiliates do and will
continue to engage for such Member’s own account and for the account of others
in other business ventures.


 


(b)                                 Delegation by Management
Committee.  The
Management Committee shall have the power and authority to delegate to one or
more other Persons the Management Committee’s rights and powers to manage and
control the business and affairs of the Company, including to delegate to
agents and employees of a Member, a Representative or the Company (including
Officers), and to delegate by a management agreement or another agreement with,
or otherwise to, other Persons. The Management Committee may authorize any
Person (including, without limitation, any Member, Officer or Representative)
to enter into and perform under any document on behalf of the Company.


 


(c)                                  Committees.  The Management Committee may, from time to
time, designate one or more committees, each of which shall be comprised of at
least two Representatives. Any such committee, to the extent provided in the
enabling resolution and until dissolved by the Management Committee, shall have
and may exercise any or all of the authority of the Management Committee.  At every meeting of any such committee, the
presence of a majority of all the representatives thereof shall constitute a
quorum, and the affirmative vote of a majority of the representatives present
shall be necessary for the adoption of any resolution. The Management Committee
may dissolve any committee at any time, unless otherwise provided in the
Certificate or this Agreement.


 


SECTION 3.2.  
Establishment of Management Committee.


 


(a)                                  Representatives.  There shall be established a Management
Committee composed of at least three and not more than fifteen Persons (“Representatives”)
who shall be elected by a plurality vote of the Class A Members, Class B
Members, Class C Members, Class D Members, Class E Members, Class W
Members, Class X Members, Class Y Members and Class Z Members,
voting together as a class, and each such Member having one vote for each Class A
Unit, Class B Unit, Class C Unit, Class D Unit, Class E
Unit, Class W Unit, Class X Unit, Class Y Unit and Class Z
Unit held by such Member.  Any
Representative may be removed from the Management Committee at any time by the
holders of a majority of the total voting power of the outstanding Class A
Units, Class B Units, Class C Units, Class D Units, Class E
Units, Class W Units, Class X Units, Class Y Units and Class Z
Units.  Each Representative shall remain
in office until his or her death, resignation or removal.  In the event of death, resignation or removal
of a Representative, the party or parties, as applicable, which appointed such
Representative shall fill the vacancy created.


 


(b)                                 Absence.  A Representative may, in isolated instances
arising from exigent circumstances, designate a Person to act as his or her
substitute and in his place at any meeting of the Management Committee. Such
Person shall have all power of the absent Representative, and references herein
to a “Representative” at a meeting shall be deemed to include his substitute. Notwithstanding
anything in this Agreement to the contrary, Representatives shall not be deemed
to be “members” or “managers” (as such terms are defined in the Act) of the
Company.


 


15

















 


(c)                                  No Individual Authority.  No Representative has the authority or power
to act for or on behalf of the Company, to do any act that would be binding on
the Company or to make any expenditures or incur any obligations on behalf of
the Company or authorize any of the foregoing, other than acts that are authorized
by the Management Committee.


 


SECTION 3.3.  
Management Committee Meetings.


 


(a)                                  Quorum.  A majority of the total number of
Representatives shall constitute a quorum for the transaction of business of
the Management Committee and, except as otherwise provided in this Agreement,
the act of a majority of the Representatives present at a meeting of the
Management Committee at which a quorum is present shall be the act of the
Management Committee. A Representative who is present at a meeting of the Management
Committee at which action on any matter is taken shall be presumed to have
assented to the action unless his dissent shall be entered in the minutes of
the meeting or unless he shall file his written dissent to such action with the
Person acting as secretary of the meeting before the adjournment thereof or
shall deliver such dissent to the Company immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a Representative who
voted in favor of such action.


 


(b)                                 Place, Waiver of Notice.  Meetings of the Management Committee may be
held at such place or places as shall be determined from time to time by
resolution of the Management Committee. At all meetings of the Management
Committee, business shall be transacted in such order as shall from time to
time be determined by resolution of the Management Committee. Attendance of a
Representative at a meeting shall constitute a waiver of notice of such
meeting, except where a Representative attends a meeting for the express purpose
of objecting to the transaction of any business on the ground that the meeting
is not lawfully called or convened.


 


(c)                                  Regular Meetings.  Regular meetings of the Management Committee
shall be held at such times and places as shall be designated from time to time
by resolution of the Management Committee. Notice of such meetings shall not be
required.


 


(d)                                 Special Meetings.  Special meetings of the Management Committee
may be called on at least 24 hours notice to each Representative by any two
Representatives.  Such notice need not
state the purpose or purposes of, nor the business to be transacted at, such
meeting, except as may otherwise be required by law or provided for in this
Agreement.


 


(e)                                  Notice.  Notice of any special meeting of the
Management Committee or other committee may be given personally, by mail,
facsimile, courier or other means and, if other than personally, shall be
deemed given when written notice is delivered to the office of the
Representative at the address of the Representative in the books and records of
the Company.


 


SECTION 3.4.   Chairman.  The Management Committee shall designate a
Representative to serve as chairman. The chairman shall, unless a majority of
Representatives present determine otherwise, preside at all meetings of the
Management Committee. If the chairman is absent at any meeting of the
Management Committee, a majority of the Representatives present shall designate
another Representative to serve as interim chairman for


 


16














 


that meeting. The chairman
shall have no authority or power to act for or on behalf of the Company, to do
any act that would be binding on the Company or to make any expenditure or
incur any obligations on behalf of the Company or authorize any of the foregoing.


 


SECTION 3.5.   Approval or
Ratification of Acts or Contracts. 
Any act or contract that shall be approved or be ratified by the
Management Committee shall be as valid and as binding upon the Company and upon
all the Members (in their capacity as Members) as if it shall have been
approved or ratified by every Member of the Company.


 


SECTION 3.6.   Action by
Written Consent or Telephone Conference. 
Any action permitted or required by the Act, the Certificate or this
Agreement to be taken at a meeting of the Management Committee or any committee
designated by the Management Committee may be taken without a meeting if a
consent in writing, setting forth the action to be taken, is signed by a
majority of the Representatives or representatives of such other committee, as
the case may be.  Such consent shall have
the same force and effect as a vote at a meeting and may be stated as such in
any document or instrument filed with the Secretary of State of Delaware, and the
execution of such consent shall constitute attendance or presence in person at
a meeting of the Management Committee or any such other committee, as the case
may be. Subject to the requirements of this Agreement for notice of meetings,
the Representatives, or representatives of any other committee designated by
the Management Committee, may participate in and hold a meeting of the
Management Committee or any such other committee, as the case may be, by means
of a conference telephone or similar communications equipment by means of which
all Persons participating in the meeting can hear each other, and participation
in such meeting shall constitute attendance and presence in person at such
meeting, except where a Person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.


 


SECTION 3.7.  
Officers.


 


(a)                                  Designation and Appointment.  The Management Committee may, from time to
time, employ and retain Persons as may be necessary or appropriate for the
conduct of the Company’s business (subject to the supervision and control of
the Management Committee), including employees, agents and other Persons (any
of whom may be a Member or Representative) who may be designated as Officers of
the Company, with titles including “chief executive officer,” “chairman,” “president,”
“vice president,” “treasurer,” “secretary,” “general manager,” “director” and “chief
financial officer,” as and to the extent authorized by the Management
Committee. Any number of offices may be held by the same Person. In its
discretion, the Management Committee may choose not to fill any office for any
period as it may deem advisable. Officers need not be residents of the State of
Delaware or Members. Any Officers so designated shall have such authority and
perform such duties as the Management Committee may, from time to time,
delegate to them. The Management Committee may assign titles to particular
Officers. Each Officer shall hold office until his successor shall be duly designated
and shall qualify or until his death or until he shall resign or shall have
been removed in the manner hereinafter provided. The salaries or other
compensation, if any, of the Officers of the Company shall be fixed from time
to time by the Management Committee.


 


17

















 


(b)                                 Resignation/Removal.  Any Officer may resign as such at any time.
Such resignation shall be made in writing and shall take effect at the time
specified therein, or if no time be specified, at the time of its receipt by
the Management Committee. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the
resignation. Any Officer may be removed as such, either with or without cause
at any time by the Management Committee. Designation of an Officer shall not of
itself create any contractual or employment rights.


 


(c)                                  Duties of Officers Generally.  The Officers, in the performance of their
duties as such, shall owe to the Company duties of loyalty and due care of the
type owed by the officers of a corporation to such corporation and its
stockholders under the laws of the State of Delaware.


 


(d)                                 Chief Executive Officer.  Subject to the powers of the Management
Committee, the chief executive officer of the Company shall be in general and
active charge of the entire business and affairs of the Company, and shall be
its chief policy making officer.


 


(e)                                  President.  The president shall, subject to the powers of
the Management Committee and chief executive officer, have general and active
management of the business of the corporation; and shall see that all orders
and resolutions of the Management Committee are carried into effect. The
president shall have such other powers and perform such other duties as may be
prescribed by the chief executive officer or the Management Committee.


 


(f)                                    Chief Financial Officer.  The chief financial officer shall keep and
maintain, or cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions of the Company,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses and capital. The chief financial officer shall have the custody of the
funds and securities of the Company, and shall keep full and accurate accounts
of receipts and disbursements in books belonging to the Company, and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Company in such depositories as may be designated by the Management
Committee. The chief financial officer shall have such other powers and perform
such other duties as may from time to time be prescribed by the chief executive
officer or the Management Committee.


 


(g)                                 Vice President(s).  The vice president(s) shall perform such
duties and have such other powers as the chief executive officer or the
Management Committee may from time to time prescribe.


 


(h)                                 Secretary.  (i)                          The secretary shall attend
all meetings of the Management Committee, and shall record all the proceedings
of the meetings in a book to be kept for that purpose, and shall perform like
duties for the standing committees of the Management Committee when required.


 


(ii)                                  The secretary
shall keep all documents described in Article 6 and such other documents
as may be required under the Act. The secretary shall perform such other duties
and have such other authority as may be prescribed elsewhere in this Agreement
or from time to time by the chief executive officer or 


 


18

















 


the
Management Committee. The secretary shall have the general duties, powers and
responsibilities of a secretary of a corporation.


 


(iii)                               If the
Management Committee chooses to appoint an assistant secretary or assistant
secretaries, the assistant secretaries, in the order of their seniority, in the
absence, disability or inability to act of the secretary, shall perform the
duties and exercise the powers of the secretary, and shall perform such other
duties as the chief executive officer or the Management Committee may from time
to time prescribe.


 


SECTION 3.8.   Management Matters.  (a)  All property owned by the Company
shall be registered in the Company’s name, in the name of a nominee or in “street
name” as the Management Committee may from time to time determine.  Any corporation, brokerage firm or transfer
agent called upon to transfer any Securities to or from the name of the Company
shall be entitled to rely on instructions or assignments signed or purported to
be signed by the Management Committee without inquiry as to the authority of
the Person signing or purporting to sign such instructions or assignments or as
to the validity of any transfer to or from the name of the Company.  At the time of any such transfer, any such corporation,
brokerage firm or transfer agent shall be entitled to assume that (i) the
Company is then in existence and (ii) that this Agreement is in full force
and effect and has not been amended, in each case unless such corporation,
brokerage firm or transfer agent shall have received written notice to the
contrary.


 


(b)                                 The Management
Committee may take all action which may be necessary or appropriate (i) for
the continuation of the Company’s valid existence as a limited liability
company under the laws of the State of Delaware (and of each other jurisdiction
in which such existence is necessary to enable the Company to conduct the
business in which it is engaged) and (ii) for the maintenance,
preservation and operation of the business of the Company in accordance with
the provisions of this Agreement and applicable laws and regulations.  The Management Committee may file or cause to
be filed for recordation in the office of the appropriate authorities of the
State of Delaware, and in the proper office or offices in each other
jurisdiction in which the Company is formed or qualified, such certificates
(including certificates of limited liability companies and fictitious name
certificates) and other documents as are required by the applicable statutes, rules or
regulations of any such jurisdiction or as are required to reflect the identity
of the Members and the amounts of their respective capital contributions.


 


(c)                                  The Management
Committee shall use its best efforts to assure that the Company shall not be
subject to registration as an investment company pursuant to the Investment
Company Act of 1940, as amended.


 


SECTION 3.9.   Subsidiaries.  The Company shall vote all of the voting
securities it holds in all subsidiaries of the Company as directed by the Management
Committee.


 


SECTION 3.10.   Liability to
Members.  (a)  Except as
otherwise required by applicable law and as expressly set forth in this
Agreement, no Member shall have any personal liability whatever in such Member’s
capacity as a Member, whether to the Company, to any of the other Members, to
the creditors of the Company or to any other third party, for the debts,
liabilities, commitments or any other obligations of the Company or for any
losses of the 


 


19

















 


Company. Each Member shall
be liable only to make such Member’s Capital Contribution to the Company and
the other payments provided expressly herein.


 


(b)                                 In accordance
with the Act and the laws of the State of Delaware, a member of a limited liability
company may, under certain circumstances, be required to return amounts
previously distributed to such member. It is the intent of the Members that no
distribution to any Member pursuant to Article V hereof shall be deemed a
return of money or other property paid or distributed in violation of the Act.
The payment of any such money or distribution of any such property to a Member
shall be deemed to be a compromise within the meaning of the Act, and the
Member receiving any such money or property shall not be required to return to
any Person any such money or property. However, if any court of competent
jurisdiction holds that, notwithstanding the provisions of this Agreement, any
Member is obligated to make any such payment, such obligation shall be the
obligation of such Member and not of any Representative or other Member.


 


SECTION 3.11.   Indemnification.  Subject to the limitations and conditions as
provided in this Section 3.11, each Person who was or is made a party or
is threatened to be made a party to or is involved in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or arbitrative (hereinafter a “Proceeding”), or any
appeal in such a Proceeding or any inquiry or investigation that could lead to
such a Proceeding, by reason of the fact that he, or a Person of which he is
the legal representative, is or was a Member, Officer or Representative shall
be indemnified by the Company to the fullest extent permitted by applicable
law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment) against judgments, penalties (including excise
and similar taxes and punitive damages), fines, settlements and reasonable
expenses (including, without limitation, reasonable attorneys’ fees) actually
incurred by such Person in connection with such Proceeding, appeal, inquiry or
investigation, and indemnification under this Section 3.11 shall continue
as to a Person who has ceased to serve in the capacity which initially entitled
such Person to indemnity hereunder. The rights granted pursuant to this Section 3.11
shall be deemed contract rights, and no amendment, modification or repeal of
this Section 3.11 shall have the effect of limiting or denying any such
rights with respect to actions taken or Proceedings, appeals, inquiries or
investigations arising prior to any amendment, modification or repeal. It is
expressly acknowledged that the indemnification provided in this Section 3.11
could involve indemnification for negligence or under theories of strict
liability.


 


SECTION 3.12.   Investment
Representations of Members.  Each
Member hereby represents and warrants to and acknowledges with the Company
that: (i) such Member has such knowledge and experience in financial and
business matters and is capable of evaluating the merits and risks of an
investment in the Company and making an informed investment decision with
respect thereto; (ii) such Member is able to bear the economic and
financial risk of an investment in the Company for an indefinite period of
time; (iii) such Member is acquiring interests in the Company for
investment only and not with a view to, or for resale in connection with, any
distribution to the public or public offering thereof; (iv) the interests
in the Company have not been registered under the securities laws of any
jurisdiction and cannot be disposed of unless they are subsequently registered
and/or qualified under applicable securities laws and the 


 


20

















 


provisions of this Agreement
have been complied with; (v) the execution, delivery and performance of
this Agreement have been duly authorized by such Member and do not require such
Member to obtain any consent or approval that has not been obtained and do not
contravene or result in a default under any provision of any law or regulation
applicable to such Member or other governing documents or any agreement or
instrument to which such Member is a party or by which such Member is bound and
(vi) this Agreement is valid, binding and enforceable against such Member
in accordance with its terms.


 


ARTICLE IV


 


CAPITAL
CONTRIBUTIONS;


 


ALLOCATIONS; DISTRIBUTIONS


 


SECTION 4.1.   Capital
Contributions.  The Vestar Member,
Park Avenue Member, the Institutional Members and each other Member listed in
the books and records of the Company have made capital contributions to the
Company consisting of cash in the amounts set forth in the books and records of
the Company (with respect to each such Member, the “Current Capital
Contribution”).


 


SECTION 4.2.   Capital Accounts.  (a)  There shall be established for each
Member in the books and records of the Company a Capital Account which shall be
increased or decreased in the manner set forth in this Agreement.


 


(b)                                 A Member shall
not have any obligation to the Company or to any other Member to restore any
negative balance in the Capital Account of such Member.


 


SECTION 4.3.  
Allocations of Net Income and Net Loss.


 


(a)                                  Timing and Amount of
Allocations of Net Income and Net Loss.  Net Income and Net Loss of the Company shall
be determined and allocated with respect to each fiscal year of the Company as
of the end of each such year or as circumstances otherwise require or
allow.  Subject to the other provisions
of this Section 4.3, an allocation to a Member of a share of Net Income or
Net Loss shall be treated as an allocation of the same share of each item of
income, gain, loss or deduction that is taken into account in computing Net
Income or Net Loss.


 


(b)                                 General
Allocations.


 


(i)                                                             Net Income and
Net Loss.  After
giving effect to the special allocations provided in Sections 4.3(c) and
4.3(d), all Net Income and Net Loss of the Company for a fiscal year shall be
allocated to the Members as follows:


 


(A)                              first, Net
Income will be allocated to the Members having deficit balances in their
Capital Accounts (computed after giving effect to all contributions,
distributions, allocations and other Capital Account adjustments for all
taxable years, after adding back each Member’s share of Company Minimum 


 


21

















 


Gain and Member Minimum Gain
as provided in Regulations Sections 1.704-2(g) and 1.704-2(i)(5)), to the
extent of, and in proportion to, those deficits unless satisfied by allocations
under Section 4.3(c) hereof; and


 


(B)                                second, Net
Income and Loss will be allocated so as to cause the credit balance in each
Member’s Capital Account (computed in the same manner as provided
parenthetically in Section 4.3(b)(i)(A) hereof) to equal, as nearly
as possible, the amount such Member would receive in a distribution, if the
distribution were made in accordance with the provisions of Section 4.4
hereof assuming the Company sold retained assets, if any, for the book value of
such assets as used in determining the then applicable Capital Accounts under
Code Section 704(b);


 


provided that Net Losses
will not be allocated to any Member to the extent it would create or increase a
deficit balance in excess of such Member’s obligation to restore its Capital
Account balance computed in accordance with the rules of Regulations Section 1.704-1(b)(2)(ii)(d) and
including such Member’s share of Company Minimum Gain and Member Minimum Gain
as provided in Regulations Sections 1.704-2(g) and 1.704-2(i)(5).  Any Net Losses that cannot be allocated to a
Member because of the limitation set forth in the proviso to the previous
sentence will be allocated first to the other Members to the extent such other
Members would not be subject to such limitation and second any remaining amount
to the Members in the manner required by the Code and Regulations.


 


(c)                                  Additional Allocation
Provisions. 
Notwithstanding the foregoing provisions of this Section 4.3:


 


(i)                                                             Regulatory
Allocations.


 


(A)      If there is a net decrease
in Company Minimum Gain or Member Minimum Gain during any fiscal year, the
Members shall be allocated items of Company income and gain for such year (and,
if necessary, for subsequent years) in accordance with Regulations Section 1.704-2(f) or
1.704-2(i)(4), as applicable.  It is
intended that this Section 4.3(c)(i)(A) qualify and be construed as a
“minimum gain chargeback” and a “chargeback of partner nonrecourse debt minimum
gain” within the meaning of such Regulations, which shall be controlling in the
event of a conflict between such Regulations and this Section 4.3(c)(i)(A).


 


(B)        Any Nonrecourse
Deductions for any fiscal year shall be specially allocated to the Members in
accordance with the number and type of their Units.  Any Member Nonrecourse Deductions for any
fiscal year shall be specially allocated to the Member(s) who bears the
economic risk of loss with respect to the Member Nonrecourse Debt to which such
Member Nonrecourse Deductions are attributable, in accordance with Regulations Section 1.704-2(i).


 


22

















 


(C)        If any Member
unexpectedly receives an adjustment, allocation or distribution described in
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of
Company income and gain shall be allocated, in accordance with Regulations Section 1.704-1(b)(2)(ii) (d),
to the Member in an amount and manner sufficient to eliminate, to the extent by
such Regulations, the Adjusted Capital Account Deficit of the Member as quickly
as possible.  It is intended that this Section 4.3(c)(i)(C) qualify
and be construed as a “qualified income offset” within the meaning of
Regulations 1.704-1(b)(2)(ii)(d), which shall be controlling in the event of a
conflict between such Regulations and this Section 4.3(c)(i)(C).


 


(D)       To the extent any allocation
of Net Loss would cause or increase an Adjusted Capital Account Deficit as to
any Member, such allocation of Net Loss shall be reallocated among the other
Members in accordance with the number and type of their respective Units,
subject to the limitations of this Section 4.3(c)(i)(D).


 


(E)         The allocations
set forth in Sections 4.3(c)(i)(A), (B), (C) and (D) (the “Regulatory
Allocations”) are intended to comply with certain regulatory requirements,
including the requirements of Regulations Sections 1.704-1(b) and 1.704-2.
Notwithstanding the provisions of Section 4.3(b), the Regulatory
Allocations shall be taken into account in allocating other items of income,
gain, loss and deduction among the Members so that, to the extent possible, the
net amount of such allocations of other items and the Regulatory Allocations to
each Member shall be equal to the net amount that would have been allocated to
each such Member if the Regulatory Allocations had not occurred.


 


(ii)                                                          For any fiscal
year during which a Member’s interest in the Company is assigned by such Member
(or by an assignee or successor in interest to a Member), the portion of the
Net Income and Net Loss of the Company that is allocable in respect of such
Member’s interest shall be apportioned between the assignor and the assignee of
such Member’s interest using any permissible method under Code Section 706
and the Regulations thereunder, as determined by the Management Committee.


 


(iii)                                                       In the event
that any amount claimed by the Company to constitute a deductible expense in
any fiscal year is treated for federal income tax purposes as a distribution
made to a Member in its capacity as a member of the Company and not a payment
to a Member not acting in its capacity as a partner under Code Section 707(a),
then the Member who is deemed to have received such distribution shall first be
allocated an amount of Company gross income equal to such payment, its Capital
Account shall be reduced to reflect the distribution, and for purposes of Section 4.3,
Net Income and Net Loss shall be determined after making the allocation
required by this Section 4.3(c)(iii).


 


(iv)                                                      In the event
that any amount claimed by the Company to constitute a distribution made to a
Member in its capacity as a member of the Company is treated for federal income
tax purposes as a deductible expense of the 


 


23

















 


Member
for a payment to a Member not acting in its capacity as a member of the
Company, then the Member who is deemed to have received such payment shall
first be allocated the Company expense item attributable to such payment, its
Capital Account shall be reduced to reflect the allocation, and for purposes of
Section 4.3, Net Income and Net Loss shall be determined after making the
allocation required by this Section 4.3(c)(iv).


 


(d)                                 Required Tax Allocations.  All items of income, gain, loss, deduction
and credit for federal income tax purposes shall be allocated to each Member in
the same manner as the Net Income or Net Loss (and each item of income, gain,
loss and deduction related thereto) that is allocated to such Member pursuant
to Section 4.3(a), (b) and (c) to which such tax items
relate.  Notwithstanding the foregoing
provisions of this Section 4.3, income, gain, loss and deduction with
respect to property contributed to the Company by a Member shall be shared
among the Members for federal and state income tax purposes pursuant to
Regulations promulgated under Section 704(c) of the Code, so as to
take account of the variation, if any, between the basis of the property to the
Company and its initial Gross Asset Value. 
In the event the Gross Asset Value of any Company asset is adjusted
pursuant to subparagraph (b), (c), or (d) of the definition of Gross Asset
Value, subsequent allocations of income, gain, loss and deduction with respect
to such asset shall take account of the variation, if any, between the adjusted
basis of such asset for federal income tax purposes and its Gross Asset Value
in the same manner as under Code Section 704(c) and the applicable
Regulations consistent with the requirements of Treasury Regulation Section 1.704-1(b)(2)(iv)(g).  Allocations pursuant to this Section 4.3(d) are
solely for purposes of federal, state and local income taxes and shall not
affect, or in any way be taken into account in computing, any Member’s Capital
Account or share of Net Income, Net Loss, other tax items or distributions
pursuant to any provision of this Agreement


 


(e)                                  Excess Nonrecourse
Liabilities.  Solely for
purposes of determining a Member’s share of the “excess nonrecourse liabilities”
of the Company, within the meaning of Treasury Regulation Section 1.752-3(a)(3),
the Members’ interests in Company profits are in proportion to the number and
type of their Units.


 


(f)                                    Members’ Tax Reporting.  The Members acknowledge and are aware of the
income tax consequences of the allocations made by Section 4.3 and, except
as may otherwise be required by applicable law or regulatory requirements,
hereby agree to be bound by the provisions of Section 4.3 in reporting
their shares of Company income, gain, loss and deductions for federal, state
and local income tax purposes.


 


(g)                                 Withholding.  Each Member hereby authorizes the Company to
withhold and to pay over any taxes payable by the Company or any of its
Affiliates as a result of such Member’s participation in the Company; if and to
the extent that the Company shall be required to withhold any such taxes, such
Member shall be deemed for all purposes of this Agreement to have received a
payment from the Company as of the time such withholding is required to be
paid, which payment shall be deemed to be a distribution to such Member to the
extent that the Member is entitled to receive a distribution.  To the extent that the aggregate of such
payments to a Member for any period exceeds the distributions to which such
Member is entitled for such period, the amount of such excess shall be
considered a demand loan from the Company to such 


 


24

















 


Member, with interest at an
interest rate of 6.5% compounded annually, which interest shall be treated as
an item of Company income until discharged by such Member by repayment, which
may be made in the sole discretion of the Management Committee out of
distributions to which such Member would otherwise be subsequently entitled.  The withholdings referred to in this Section 4.3
shall be made at the maximum applicable statutory rate under applicable tax law
unless the Management Committee receives documentation, satisfactory to the
Management Committee, to the effect that a lower rate is applicable, or that no
withholding is applicable.


 


SECTION 4.4.   Distributions.  (a)  Each Member’s allocable portion of
Distributable Assets during a fiscal year of the Company will be distributed
(or set aside for the benefit of the applicable Member, in the discretion of
the Management Committee) as soon as reasonably practicable after such
Distributable Assets become available to the Company, subject to Sections
4.4(c), (d), (e), (f), (g) and (i), as follows:


 


(i)                                     First, 100% of the
Distributable Assets shall be distributed to the Class A Members, pro rata
in accordance with the number of each such Member’s Class A Units, until
the Class A Members have received cumulative distributions pursuant to
this Section 4.4(a)(i) equal to such Members’ aggregate Capital
Contributions in respect of their Class A Units;


 


(ii)                                  Second, 100% of the
Distributable Assets shall be distributed on a pari passu basis as follows:


 


(A)                              pro rata in
accordance with the number of each such Member’s Class B Units, until the Class B
Members have received cumulative distributions pursuant to this Section 4.4(a)(ii) equal
to such Members’ aggregate Capital Contributions in respect of their Class B
Units;


 


(B)                                pro rata in
accordance with the number of each such Member’s Class C Units, until the Class C
Members have received cumulative distributions pursuant to this Section 4.4(a)(ii) equal
to such Members’ aggregate Capital Contributions in respect of their Class C
Units;


 


(C)                                pro rata in
accordance with the number of each such Member’s Class D Units, until the Class D
Members have received cumulative distributions pursuant to this Section 4.4(a)(ii) equal
to such Members’ aggregate Capital Contributions in respect of their Class D
Units;


 


(D)                               pro rata in
accordance with the number of each such Member’s Class E Units, until the Class E
Members have received cumulative distributions pursuant to this Section 4.4(a)(ii) equal
to such Members’ aggregate Capital Contributions in respect of their Class E
Units;


 


(E)                                 pro rata in
accordance with the number of each such Member’s Class W Units, until the Class W
Members have received cumulative distributions pursuant to this Section 4.4(a)(ii) equal
to such Members’ aggregate Capital Contributions in respect of their Class W
Units;


 


25

















 


(F)                                 pro rata in
accordance with the number of each such Member’s Class X Units, until the Class X
Members have received cumulative distributions pursuant to this Section 4.4(a)(ii) equal
to such Members’ aggregate Capital Contributions in respect of their Class X
Units;


 


(G)                                pro rata in
accordance with the number of each such Member’s Class Y Units, until the Class Y
Members have received cumulative distributions pursuant to this Section 4.4(a)(ii) equal
to such Members’ aggregate Capital Contributions in respect of their Class Y
Units;


 


(H)                               pro rata in
accordance with the number of each such Member’s Class Z Units, until the Class Z
Members have received cumulative distributions pursuant to this Section 4.4(a)(ii) equal
to such Members’ aggregate Capital Contributions in respect of their Class Z
Units;


 


(iii)                               Third, 100% of the
Distributable Assets shall be distributed on a pari passu basis as follows:


 


(A)                              a percentage
equal to 80.52% minus the Class E Units Allocation Percentage shall be
distributed to the Class A Members, pro rata in accordance with the number
of each Member’s Class A Units;


 


(B)                                there shall be
distributed to and/or set aside for each Class B Member an amount equal to
the product of (1) 1.89% and (2) a fraction, the numerator of which
is the number of Class B Units held by such Class B Member at the
date of such distribution and the denominator of which is sum of the total
number of Class B Units issued on the date hereof and the total number of Class B
Units reserved for issuance on the date hereof, and (3) the Applicable
Percentage with respect to such Class B Member (if greater, the aggregate
amount to be distributed shall be the amount of taxes attributable in respect
of the amount allocable to the Class B Member under this Section 4.4(a)(iii)(B) determined
in accordance with Section 4.4(i), and the remainder of such amount shall
be set aside for the Class B Member to be distributed in accordance with Section 4.4(c)(i));


 


(C)                                there shall be
distributed to each Class C Member an amount equal to the product of (1) 2.35%,
(2) a fraction, the numerator of which is the number of Class C Units
held by such Class C Member at the date of such distribution and the
denominator of which is the sum of the total number of Class C Units
issued on the date hereof and the total number of Class C Units reserved
for issuance on the date hereof, and (3) the Applicable Percentage with
respect to such Class C Member;


 


(D)                               there shall be
distributed to each Class D Member an amount equal to the product of (1) 4.23%,
(2) a fraction, the numerator of which is the number of Class D Units
held by such Class D Member at the date of such distribution and the
denominator of which is the sum of the total number of Class


 


26














 


D
Units issued on the date hereof and the total number of Class D Units
reserved for issuance on the date hereof, and (3) the Applicable
Percentage with respect to such Class D Member;


 


(E)                                 there shall be
distributed to and/or set aside for each Class E Member an amount equal to
the product of (1) a percentage determined by the Management Committee in
its sole discretion (the “Class E Units Allocation Percentage”) and
(2) a fraction, the numerator of which is the number of Class E Units
held by such Class E Member at the date of such distribution and the
denominator of which is sum of the total number of Class E Units issued on
the date hereof and the total number of Class E Units reserved for
issuance on the date hereof, and (3) the Applicable Percentage with
respect to such Class E Member (if greater, the aggregate amount to be
distributed shall be the amount of taxes attributable in respect of the amount
allocable to the Class E Member under this Section 4.4(a)(iii)(E) determined
in accordance with Section 4.4(i), and the remainder of such amount shall
be set aside for the Class E Member to be distributed in accordance with Section 4.4(c)(ii));


 


(F)                                 there shall be
distributed to and/or set aside for each Class W Member an amount equal to
the product of (1) 2.50% and (2) a fraction, the numerator of which
is the number of Class W Units held by such Class W Member at the
date of such distribution and the denominator of which is sum of the total
number of Class W Units issued on the date hereof and the total number of Class W
Units reserved for issuance on the date hereof, and (3) the Applicable
Percentage with respect to such Class W Member (if greater, the aggregate
amount to be distributed shall be the amount of taxes attributable in respect
of the amount allocable to the Class W Member under this Section 4.4(a)(iii)(F)
determined in accordance with Section 4.4(i), and the remainder of such
amount shall be set aside for the Class W Member to be distributed in
accordance with Section 4.4(c)(iii));


 


(G)                                there shall be
distributed to each Class X Member an amount equal to the product of (1) 2.50%,
(2) a fraction, the numerator of which is the number of Class X Units
held by such Class X Member at the date of such distribution and the
denominator of which is the sum of the total number of Class X Units
issued on the date hereof and the total number of Class X Units reserved
for issuance of the date hereof, and (3) the Applicable Percentage with
respect to such Class X Member;


 


(H)                               there shall be
distributed to each Class Y Member an amount equal to the product of (1) 3.00%,
(2) a fraction, the numerator of which is the number of Class Y Units
held by such Class Y Member at the date of such distribution and the
denominator of which is the sum of the total number of Class Y Units
issued on the date hereof and the total number of Class Y Units reserved
for issuance on the date hereof, and (3) the Applicable Percentage with
respect to such Class Y Member; and


 


27

















 


(I)                                    there shall be
distributed to each Class Z Member an amount equal to the product of (1) 3.00%,
(2) a fraction, the numerator of which is the number of Class Z Units
held by such Class Z Member at the date of such distribution and the
denominator of which is the sum of the total number of Class Z Units
issued on the date hereof and the total number of Class Z Units reserved
for issuance on the date hereof, and (3) the Applicable Percentage with
respect to such Class Z Member;


 


(iv)                                                      Thereafter, 100% of the
Distributable Assets shall be distributed to and/or set aside for the Class A
Members (the aggregate amount to be distributed shall be the amount of taxes
attributable in respect of such amount determined in accordance with Section 4.4(i),
and the remainder of such amount shall be set aside to be distributed in
accordance with Sections 4.4(d), (e) and (f)), pro rata in accordance with
the number of each such Member’s Class A Units;


 


provided that, if the
Distributable Assets being distributed consist of more than one kind of asset,
all Distributable Assets consisting of cash must be distributed before any
other kind of asset is distributed.


 


(b)                                 [Intentionally
Omitted]


 


(c)                                  (i)                                     If there occurs
an increase in the Applicable Percentage with respect to Class B Units
from time to time, the amount set aside under Section 4.4(a)(iii)(B), if
any, shall be distributed to the Class B Members to the extent necessary
to make the amount previously distributed under Section 4.4(a)(iii)(B) (plus
any amount previously distributed under this Section 4.4(c)(i)) equal the
amount which would have been distributable under Section 4.4(a)(iii)(B) if
such increased Applicable Percentage had been in effect; provided that
if a Sale of the Company occurs, after satisfaction of all amounts due in
respect of the Class B Units under this Section 4.4(c)(i) (including
such amounts due as a result of such Sale of the Company), the amount set aside
under Section 4.4(a)( iii)(B), if any, shall be distributed in respect of
the Class A Units.


 


(ii)                                  If there occurs
an increase in the Applicable Percentage with respect to Class E Units
from time to time, the amount set aside under Section 4.4(a)(iii)(E), if
any, shall be distributed to the Class E Members to the extent necessary
to make the amount previously distributed under Section 4.4(a)(iii)(E) (plus
any amount previously distributed under this Section 4.4(c)(ii)) equal the
amount which would have been distributable under Section 4.4(a)(iii)(E) if
such increased Applicable Percentage had been in effect; provided that
if a Sale of the Company occurs, after satisfaction of all amounts due in
respect of the Class E Units under this Section 4.4(c)(ii) (including
such amounts due as a result of such Sale of the Company), the amount set aside
under Section 4.4(a)(iii)(E), if any, shall be distributed in respect of
the Class A Units.


 


(iii)                               If there occurs
an increase in the Applicable Percentage with respect to Class W Units
from time to time, the amount set aside under Section 4.4(a)(iii)(F), if
any, shall be distributed to the Class W Members to the extent necessary
to make the amount previously distributed under Section 4.4(a)(iii)(F) (plus
any amount previously distributed under 


 


28

















 


this Section 4.4(c)(iii))
equal the amount which would have been distributable under Section 4.4(a)(iii)(F) if
such increased Applicable Percentage had been in effect; provided that
if a Sale of the Company occurs, after satisfaction of all amounts due in
respect of the Class W Units under this Section 4.4(c)(iii) (including
such amounts due as a result of such Sale of the Company), the amount set aside
under Section 4.4(a)(iii)(F), if any, shall be distributed in respect of
the Class A Units.


 


(d)                                 If there occurs
an increase in the Applicable Percentage with respect to Class C Units
from time to time due to the achievement of additional target objectives set
forth in the applicable Management Unit Subscription Agreement, notwithstanding
Section 4.4(a), to the extent (and only to the extent) necessary to make
the amount previously distributed under Section 4.4(a)(iii)(C) (plus
any amount previously distributed under this Section 4.4(d)) equal the
amount which would have been distributable if such increased Applicable
Percentage had been in effect (on a pro rata, pari passu basis with the
distributions under Section 4.4(e)), (i) amounts shall be distributed
from the amount set aside under Section 4.4(a)(iv), if any, to the Class C
Members in respect of the Class C Units and (ii) thereafter, the
amounts otherwise distributable in respect of the Class A Units under Section 4.4(a)(iii)(A) shall
be distributed to the Class C Members in respect of the Class C
Units.


 


(e)                                  If there occurs
an increase in the Applicable Percentage with respect to Class D Units
from time to time due to the achievement of additional target objectives set
forth in the applicable Management Unit Subscription Agreement, notwithstanding
Section 4.4(a), to the extent (and only to the extent) necessary to make
the amount previously distributed under Section 4.4(a)(iii)(D) (plus
any amount previously distributed under this Section 4.4(e)) equal the
amount which would have been distributable if such increased Applicable
Percentage had been in effect (on a pro rata, pari passu basis with the
distributions under Section 4.4(d)), (i) amounts shall be distributed
from the amount set aside under Section 4.4(a)(iv), if any, to the Class D
Members in respect of the Class D Units and (ii) thereafter, the
amounts otherwise distributable in respect of the Class A Units under Section 4.4(a)(iii)(A) shall
be distributed to the Class D Members in respect of the Class D
Units.


 


(f)                                    If a Sale of
the Company occurs, after satisfaction of all amounts due in respect of the Class C
Units, the Class D Units, the Class X Units, the Class Y Units
and the Class Z Units under Sections 4.4(d) and (e) (including
such amounts due as a result of such Sale of the Company), the amount set aside
under Section 4.4(a)(iv) shall be distributed in respect of the Class A
Units.  If a Sale of the Company occurs,
and if all amounts due in respect of the Class C Units, the Class D
Units, the Class X Units, the Class Y Units and the Class Z
Units under Sections 4.4(d) and (e) have not yet been satisfied
(after giving effect to the immediately preceding sentence), the Class A
Members shall contribute to the Company such unsatisfied amounts, on a pro rata
basis in accordance with the number of Class A Units (provided that such
contribution shall be effected by means of a set-off in the case of any Class A
Member who is also owed amounts under this sentence in respect of its Class C
Units, Class D Units, Class X Units, Class Y Units or Class Z
Units).


 


(g)                                 (i)                                     To the extent
an amount is distributed to a Class B Member or a Class W Member in
respect of taxes pursuant to Section 4.4(a)(iii)(B) or Section 4.4(a)(iii)(F),
respectively, and determined in accordance with Section 4.4(i), such
distribution shall be treated 


 


29

















 


as a loan to such Class B Member or Class W
Member.  The Company may offset any
amounts outstanding under any such loan against any amount subsequently
distributable to such Class B Member or Class W Member under Section 4.4(a)(iii),
taking into account any distribution made to such Class B Member or Class W
Member under Section 4.4(c).  The
interest rate for such loan shall be 6.5%, and the maturity of such loan shall
be the Sale of the Company.


 


(ii)                                  To the extent
an amount is distributed to a Class E Member in respect of taxes pursuant
to Section 4.4(a)(iii)(E) and determined in accordance with Section 4.4(i),
such distribution shall be treated as a loan to such Class E Member.  The Company may offset any amounts
outstanding under any such loan against any amount subsequently distributable
to such Class E Member under Section 4.4(a)(iii), taking into account
any distribution made to such Class E Member under Section 4.4(c).  The interest rate for such loan shall be
6.5%, and the maturity of such loan shall be the Sale of the Company.


 


(h)                                 For purposes of
determining the amount of distributions under this Section 4.4, any holder
of a Membership Interest (or any portion thereof), whether or not such Person
is a Substitute Member, shall be treated as having received amounts received by
its predecessors or Successors in Interest.


 


(i)                                     There shall be made no later
than 90 days after the close of each fiscal year (or at such time as the
Management Committee determines to allow the Members to pay estimated taxes) a tax
distribution to the Members (to the extent that there are Distributable Assets
in the form of cash) in an amount equal to (A)(i) the federal (net of any
state tax benefit) and state and local income tax liability that would be
payable in respect of the cumulative taxable income, including guaranteed
payments and other income attributable to the Member’s investment as reported
on the Member’s Schedule K-1 allocated from the Company to the Member over (ii) the
federal taxable loss carryforward deduction (assuming that such carryforward
was not applied against any non-Company income of such Member) that would be
available to a Member from its investment in the Company reduced by (B) all
prior distributions pursuant to this Section 4.4. For purposes of the tax
liability calculation under this Section 4.4(i), there shall be used for
all Members an assumed tax rate equal to the highest individual federal, New
York State and New York City tax rate.  A
tax distribution to a Member shall be charged against current or future
distributions to which such Member would otherwise have been entitled under
this Section 4.4 or Section 5.2.


 


SECTION 4.5.   Allocations Upon a
Sale of the Company.  In the event of
a Sale of the Company, any Class B Units, Class C Units, Class D
Units, Class W Units, Class X Units, Class Y Units and Class Z
Units which are reserved for issuance on the date hereof and remaining unissued
or which are held in treasury by the Company as the result of the repurchase of
such Units shall be issued (or re-issued) to the Class B Members, Class C
Members, Class D Members, Class W Members, Class X Members, Class Y
Members and Class Z Members, as the case may be, in the Management
Committee’s sole discretion, such that immediately prior to the closing of the
Sale of the Company all such Units are outstanding and held the Class B
Members, Class C Members, Class D Members, Class W Members, Class X
Members, Class Y Members and Class Z Members, as the case may
be.  The purchase price for each such
Unit shall be an amount equal to the greater of the purchase price of such
Units on the date hereof and purchase price paid for such Units by the Company
if such Units were previously issued and repurchased 


 


30

















 


by the Company; provided
that the Management Committee may, in its sole discretion, permit the Class B
Members, Class C Members, Class D Members, Class W Members, Class X
Members, Class Y Members and Class Z Members, as the case may be, to
fund such purchase price with a promissory note to be repaid in full upon the
Sale of the Company.


 


SECTION 4.6.   Security Interest
and Right of Set-Off.  As security
for any withholding tax or other liability or obligation to which the Company
may be subject as a result of any act or status of any Member, or to which the
Company may become subject with respect to the interest of any Member, the
Company shall have (and each Member hereby grants to the Company) a security
interest in all Distributable Assets distributable to such Member to the extent
of the amount of such withholding tax or other liability or obligation.  The Company shall have a right of set-off
against such distributions of Distributable Assets in the amount of such
withholding tax or other liability or obligation.  The Company may withhold distributions or
portions thereof if it is required to do so by the Code or any other provision
of federal, state or local tax or other law. 
Any amount withheld pursuant to the Code or any other provision of
federal, state or local tax or other law with respect to any distribution to a
Member shall be treated as an amount distributed to such Member for all
purposes under this Agreement.


 


ARTICLE V


 


WITHDRAWAL; DISSOLUTION;


 


TRANSFER OF MEMBERSHIP
INTERESTS;


 


ADMISSION OF NEW MEMBERS


 


SECTION 5.1.   Member Withdrawal.  Except as contemplated by Section 5.6,
withdrawal by a Member shall constitute a breach of this Agreement.  Notwithstanding anything to the contrary
contained in the Act, in no event shall the Member be deemed to have withdrawn
from the Company or cease to be a Member upon the occurrence of any of the
events specified in this Agreement, or any events similar thereto, unless the
Member, after the occurrence of any such event, indicates in a written
instrument that the Member has so withdrawn. 
Withdrawal of a Member pursuant to this Agreement, subject to the
previous sentence, shall not dissolve the Company if at the time of such event
of withdrawal there are one or more remaining Members, each of which hereby
agrees to continue the business of the Company. 
If upon an event of withdrawal with respect to a Member there shall be
no remaining Members, the Company nonetheless shall not be dissolved and shall
not be required to be wound up if, within 90 days after the occurrence of such
event of withdrawal, the Management Committee (other than any withdrawn
Members) agrees in writing to continue the business of the Company and to the
appointment, effective as of the date of such withdrawal, of one or more
Members.


 


SECTION 5.2.   Dissolution.  (a)  The Company shall be dissolved and
its affairs shall be wound up on the first to occur of the following:


 


(i)                                     the expiration
of its term pursuant to Section 2.3;


 


31

















 


(ii)                                  the unanimous
vote of the Management Committee;


 


(iii)                               the written
consent of Members holding a majority of the outstanding Class A Units;
and


 


(iv)                              the entry of a
decree of judicial dissolution of the Company under Section 18-802 of the
Act.


 


Except as provided in this Agreement, the death, retirement,
resignation, expulsion, Incapacity, bankruptcy or dissolution of a Member, or
the occurrence of any other event that terminates the continued membership of a
Member in the Company, shall not cause a dissolution of the Company, and the
Company shall continue in existence subject to the terms and conditions of this
Agreement.


 


(b)                                 When the
Company is dissolved, the business and property of the Company shall be wound
up and liquidated by the Management Committee or, in the event of the
unavailability of the Management Committee, such Member or other liquidating
trustee as shall be named by the Management Committee.


 


(c)                                  Within 120
calendar days after the effective date of dissolution of the Company, whether
by expiration of its full term or otherwise, the assets of the Company shall be
distributed in the following manner and order:


 


(i)                                     All debts and
obligations of the Company, if any, shall be paid, discharged or provided for
by adequate reserves;


 


(ii)                                  The balance, to
the Members in accordance with Section 4.4.


 


(d)                                 Cancellation of
Certificate.  On
completion of the distribution of Company assets as provided herein, the
Company is terminated, and shall file a certificate of cancellation with the
Secretary of State of the State of Delaware, cancel any other filings made and
take such other actions as may be necessary to terminate the Company.


 


SECTION 5.3.   Transfer of
Membership Interests.  In cases where
a Substitute Member has acquired an interest in the Company from a Member, such
Substitute Member shall succeed to the Membership Interest acquired from such
Member.  In cases where an Additional
Member is admitted to the Company, it shall be designated as either a Class A
Member, a Class B Member, a Class C Member, a Class D Member, a Class E
Member, a Class W Member, a Class X Member, a Class Y Member
and/or a Class Z Member, and its Class A Units, Class B Units, Class C
Units, Class D Units, Class E Units, Class W Units, Class X
Units, Class Y Units and/or Class Z Units shall be designated by the
Management Committee.


 


SECTION 5.4.   Admission or
Substitution of New Members.  (a) 
The Management Committee shall have the right, in its sole and absolute
discretion (subject to Section 5.3) to admit as a Substitute Member or an
Additional Member, any Person who acquires an interest in the Company, or any
part thereof, from a Member or from the Company.  Concurrently with the admission of a
Substitute Member or an Additional Member, the Management Committee shall
forthwith cause any necessary papers to be filed and recorded and 


 


32

















 


notice to be given wherever
and to the extent required showing the substitution of a transferee as a
Substitute Member in place of the transferring Member, or the admission of an
Additional Member, all at the expense, including payment of any professional
fees incurred, of the Substitute Member or the Additional Member.


 


(b)                                 The admission
of any Person as a Substitute or Additional Member shall be conditioned upon (i) such
Person’s written acceptance and adoption of all the terms and provisions of
this Agreement, either by (X) execution and delivery of a counterpart
signature page to this Agreement countersigned by the Management Committee
on behalf of the Company or (Y) any other writing evidencing the intent of
such Person to become a Substitute Member or Additional Member and such writing
is accepted by the Management Committee on behalf of the Company and (ii) upon
the request of the Management Committee, such Person’s execution and delivery
of a counterpart to the Securityholders Agreement.


 


SECTION 5.5.   Transfer of Member’s
Interest.  Subject to the
Securityholders Agreement and any other agreement among the Company and a
Member regarding Units held by such Member (including any Management Unit
Subscription Agreement), a Member may transfer or assign all or part of its
interest as a Member in the Company to any Person that agrees in writing to
assume the responsibility of a Member under this Agreement.  A Person who is so admitted as a Substitute
Member or an Additional Member shall thereby become a Member.  The Member shall not cease to be a Member
upon the collateral assignment of, or the pledging or granting of a security
interest in, its entire interest in the Company.  No Person may become a Substitute Member
except as provided by this Section 5.5.


 


SECTION 5.6.   Compliance with Law.  Notwithstanding any provision hereof to the
contrary, no sale or other disposition of an interest in the Company may be
made except in compliance with all federal, state and other applicable laws,
including federal and state securities laws.


 


ARTICLE VI


 


REPORTS TO MEMBERS; TAX MATTERS


 


SECTION 6.1.   Books of Account.  Appropriate books of account shall be kept by
the Management Committee, in accordance with generally accepted accounting
principles, at the principal place of business of the Company, and each Member
shall have access to all books, records and accounts of the Company and the
right to make copies thereof for any purpose reasonably related to the Member’s
interest as a member of the Company, in each case, under such conditions and
restrictions as the Management Committee may reasonably prescribe.


 


SECTION 6.2.   Reports.  (a)  As promptly as possible after the
close of each fiscal year of the Company, the Management Committee shall cause
an examination of the financial statements of the Company as of the end of each
such fiscal year to be made in accordance with generally accepted auditing
standards as in effect on the date thereof, by a firm of certified public
accountants selected by the Management Committee.  Within 90 days after the 


 


33

















 


close of each fiscal year, a
copy of the financial statements of the Company, including the report of such
certified public accountants, shall be furnished to each Member and shall
include, as of the end of such fiscal year:


 


(i)                                     a statement
prepared by the Company setting forth the balance of each Member’s Capital
Account and the amount of that Member’s allocable share of the Company’s items
of Net Income or Net Loss and deduction, capital gain and loss or credit for
such year for each of his Membership Interests; and


 


(ii)                                  a balance
sheet, a statement of income and expense and a statement of changes in cash
flows of the Company for that fiscal year.


 


In addition, the Members shall be supplied with all
other Company information necessary to enable each Member to prepare its
federal income tax return.


 


(b)                                 All
determinations, valuations and other matters of judgment required to be made
for accounting purposes under this Agreement shall be made by the Management
Committee and shall be conclusive and binding on all Members, their successors,
heirs, estates or legal representatives and any other Person, and to the
fullest extent permitted by law no such Person shall have the right to an
accounting or an appraisal of the assets of the Company or any successor
thereto.


 


SECTION 6.3.   Fiscal Year.  The fiscal year of the Company shall end on
or as close to the last Friday of June of each calendar year unless
otherwise determined by the Management Committee in accordance with Section 706
of the Code.


 


SECTION 6.4.   Certain Tax Matters.  (a)  The Management Committee shall
cause to be prepared all federal, state and local tax returns of the Company
for each year for which such returns are required to be filed and shall cause
such returns to be timely filed.  The
Management Committee shall determine the appropriate treatment of each item of
income, gain, loss, deduction and credit of the Company and the accounting
methods and conventions under the tax laws of the United States, the several
states and other relevant jurisdictions as to the treatment of any such item or
any other method or procedure related to the preparation of such tax
returns.  The Management Committee may
cause the Company to make or refrain from making any and all elections
permitted by such tax laws.  Each Member
agrees that he shall not, except as otherwise required by applicable law or
regulatory requirements, (i) treat, on his individual income tax returns,
any item of income, gain, loss, deduction or credit relating to his interest in
the Company in a manner inconsistent with the treatment of such item by the
Company as reflected on the Form K-1 or other information statement
furnished by the Company to such Member for use in preparing his income tax
returns or (ii) file any claim for refund relating to any such item based
on, or which would result in, such inconsistent treatment.  In respect of an income tax audit of any tax
return of the Company, the filing of any amended return or claim for refund in
connection with any item of income, gain, loss, deduction or credit reflected
on any tax return of the Company, or any administrative or judicial proceedings
arising out of or in connection with any such audit, amended return, claim for
refund or denial of such claim, (A) the Tax Matters Member (as defined
below) shall be authorized to act for, and his decision shall be final and
binding upon, the Company and all Members except to the extent a 


 


34

















 


Member shall properly elect
to be excluded from such proceeding pursuant to the Code, (B) all expenses
incurred by the Tax Matters Member in connection therewith (including, without
limitation, attorneys’, accountants’ and other experts’ fees and disbursements)
shall be expenses of, and payable by, the Company and (C) no Member shall
have the right to (1) participate in the audit of any Company tax return, (2) file
any amended return or claim for refund in connection with any item of income,
gain, loss, deduction or credit reflected on any tax return of the Company, (3) participate
in any administrative or judicial proceedings conducted by the Company or the
Tax Matters Member arising out of or in connection with any such audit, amended
return, claim for refund or denial of such claim, or (4) appeal, challenge
or otherwise protest any adverse findings in any such audit conducted by the
Company or the Tax Matters Member or with respect to any such amended return or
claim for refund filed by the Company or the Tax Matters Member or in any such
administrative or judicial proceedings conducted by the Company or the Tax
Matters Member.


 


(b)                                 The Company and
each Member hereby designate the Vestar Member as the “tax matters partner” for
purposes of Section 6231(a)(7) of the Code (the “Tax Matters
Member”).  To the fullest extent
permitted by applicable law, each Member agrees to indemnify and hold harmless
the Company and all other Members from and against any and all liabilities,
obligations, damages, deficiencies and expenses resulting from any breach or
violation by such Member of the provisions of this Section 6.4 and from
all actions, suits, proceedings, demands, assessments, judgments, costs and
expenses, including reasonable attorneys’ fees and disbursements, incident to
any such breach or violation.


 


(c)                                  Upon sale of Company assets
or a liquidation of the Company, Members shall provide the Management Committee
with certain tax filings as requested by the Management Committee (including Form 4669).


 


ARTICLE VII


 


MISCELLANEOUS


 


SECTION 7.1.   Schedules.  The Management Committee may from time to
time execute and deliver to the Members schedules which set forth the then
current Capital Account balances of each Member and any other matters deemed
appropriate by the Management Committee or required by applicable law.  Such schedules shall be for information
purposes only and shall not be deemed to be part of this Agreement for any
purpose whatsoever.


 


SECTION 7.2.   Governing Law.  THIS AGREEMENT IS GOVERNED BY AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event
of a direct conflict between the provisions of this Agreement and any provision
of the Certificate or any mandatory provision of the Act, the applicable
provision of the Certificate or the Act shall control. If any provision of this
Agreement or the application thereof to any Person or circumstance is held
invalid or 


 


35

















 


unenforceable to any extent,
the remainder of this Agreement and the application of that provision to other
Persons or circumstances is not affected thereby and that provision shall be
enforced to the greatest extent permitted by law.


 


SECTION 7.3.   Successors and
Assigns.  This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto, their
respective heirs and personal representatives, and any successor to a trustee
of a trust which is or becomes a party hereto; provided that no Person claiming
by, through or under a Member (whether such Member’s heir, personal
representative or otherwise), as distinct from such Member itself, shall have
any rights as, or in respect to, a Member (including the right to approve or
vote on any matter or to notice thereof).


 


SECTION 7.4.   Confidentiality.  By executing this Agreement, each Member
expressly agrees, at all times during the term of the Company and thereafter
and whether or not at the time a Member of the Company, to maintain the
confidentiality of, and not to disclose to any Person other than the Company,
another Member, a Person designated by the Company or any of their respective
financial planners, accountants, attorneys or other advisors, any information
relating to the business, financial structure, financial position or financial
results, clients or affairs of the Company that shall not be generally known to
the public, except as otherwise required by law or by any regulatory or
self-regulatory organization having jurisdiction and except in the case of any
Member who is employed by any entity controlled by the Company in the ordinary
course of his duties.


 


SECTION 7.5.   Amendments.  The Management Committee may, in its sole
discretion and to the fullest extent allowable under Delaware law, amend this
Agreement without the consent or approval of the Members, including such
amendments to (i) admit Substitute Members and Additional Members, (ii) create
new classes of Units and (iii) take any action necessary and related to
clause (i) and (ii), except that this Agreement may not be amended so as
to discriminate among Members of the same class of Units; provided that any
amendment with respect to the Class B Units, Class C Units, Class D
Units, Class W Units, Class X Units, Class Y Units or Class Z
Units, in each case, as a class, that dilutes the rights any class of Units
hereunder shall require the consent of the Chief Executive Officer of the
Company.


 


SECTION 7.6.   Notices.  Whenever notice is required or permitted by
this Agreement to be given, such notice shall be in writing (including cable,
telex, telecopy or similar writing) and shall be given to any Member at its
address or telecopy number shown in the Company’s books and records or, if
given to the Company, at the following address:


 


DynaVox Systems Holdings LLC

2100 Wharton Street


Suite 400

Pittsburgh, PA 15203

Attention:  Chief Executive Officer


 


with a copy to:


 


Vestar Capital Partners IV,
L.P.


 


36














 


245 Park Avenue


41st Floor


New York, New York 10167


Attention:  General Counsel


Telecopy: (212) 808-4922


 


and


 


Simpson Thacher &
Bartlett LLP


425 Lexington Avenue


New York, New York 10017


Attention: Peter J. Gordon, Esq.


Telecopy: (212) 455-2502


 


Each such notice shall be effective (i) if given by telecopy, upon
dispatch, (ii) if given by mail, when deposited in the mails (first class
or airmail postage prepaid) addressed as aforesaid and (iii) if given by
any other means, when delivered to the address of such Member or the Company,
as the case may be, specified as aforesaid.


 


SECTION 7.7.   Counterparts.  This Agreement may be executed in any number
of counterparts, all of which together shall constitute a single instrument.


 


SECTION 7.8.   Power of Attorney.  Each Member hereby irrevocably appoints the
Chief Executive Officer of the Company as such Member’s true and lawful
representative and attorney-in-fact, each acting alone, in such Member’s name,
place and stead, to make, execute, sign and file all instruments, documents and
certificates which, from time to time, may be required to set forth any
amendment to this Agreement or may be required by this Agreement or by the laws
of the United States of America, the State of Delaware or any other state in which
the Company shall determine to do business, or any political subdivision or
agency thereof, to execute, implement and continue the valid and subsisting
existence of the Company.  The Management
Committee, as representative and attorney-in-fact, however, shall not have any
rights, powers or authority to amend or modify this Agreement when acting in
such capacity, except as expressly provided herein.  Such power of attorney is coupled with an
interest and shall survive and continue in full force and effect
notwithstanding the subsequent withdrawal from the Company of any Member for
any reason and shall survive and shall not be affected by the disability or
incapacity of such Member.


 


SECTION 7.9.   Entire Agreement.  This Agreement and the other documents and
agreements referred to herein or entered into concurrently herewith embody the
entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein; provided that such other agreements and
documents shall not be deemed to be a part of, a modification of or an
amendment to this Agreement.  There are
no restrictions, promises, representations, warranties, covenants or
undertakings, other than those expressly set forth or referred to herein.  This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.


 


37

















 


SECTION 7.10.   Section Titles.  Section titles are for descriptive
purposes only and shall not control or alter the meaning of this Agreement as
set forth in the text hereof.


 


[Remainder
of Page Intentionally Left Blank]


 


38

















 


IN WITNESS WHEREOF, the parties have executed the
Amended Agreement or this Agreement and each is a party to and bound by this
Second Amended and Restated Limited Liability Company Agreement.


 


 


	
   

  	
  DYNAVOX INVESTORS LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  VESTAR CAPITAL PARTNERS
  IV, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Vestar Associates IV,
  L.P.,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Vestar Associates
  Corporation IV,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:   Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  VCD INVESTORS LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  PARK AVENUE EQUITY
  PARTNERS, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Park Avenue Equity GP,
  LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PAE GP, LLC,

  
	
   

  	
   

  	
  its Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:   Managing
  Member

  



 

















 


	
   

  	
  INSTITUTIONAL
  MEMBERS:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NEW YORK LIFE CAPITAL
  PARTNERS, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  NYLCAP Manager LLC,

  
	
   

  	
   

  	
  its Investment Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NEW YORK LIFE INVESTMENT
  MANAGEMENT MEZZANINE PARTNERS, LP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  NYLIM Mezzanine GenPar LP,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NYLIM Mezzanine GenPar GP,
  LLC, its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NYLIM MEZZANINE PARTNERS
  PARALLEL FUND, LP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  NYLIM Mezzanine GenPar,
  LP,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NYLIM Mezzanine GenPar GP,
  LLC, its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  SQUAM LAKE INVESTORS VI,
  L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BGPI, INC.,

  
	
   

  	
   

  	
  its Managing General
  Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
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  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SUNAPEE SECURITIES, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
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  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MANAGEMENT
  INVESTORS:

  



 


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The management investors that have
executed a Master Signature Page are party to this Second Amended and
Restated Limited Liability Company Agreement of DynaVox Systems Holdings LLC.


 


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Exhibit A


 


THE INTERESTS REPRESENTED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”) OR ANY STATE SECURITIES LAWS. ACCORDINGLY, SUCH
INTERESTS MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT
COMPLIANCE WITH SUCH ACT AND SUCH STATE SECURITIES LAWS, AND DYNAVOX SYSTEMS
HOLDINGS LLC MAY REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO IT THAT NO
VIOLATION OF SUCH ACT AND SUCH STATE SECURITIES LAWS WILL RESULT FROM: ANY
PROPOSED SALE, TRANSFER, OR OTHER DISPOSITION OF SUCH INTERESTS.


 


THIS CERTIFICATE EVIDENCES
AN INTEREST IN DYNAVOX SYSTEMS HOLDINGS LLC AND SHALL BE A SECURITY FOR THE
PURPOSES OF ARTICLE 8 OF, THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN THE
STATE OF NEW YORK.


 


No. 1


 


DYNAVOX SYSTEMS HOLDINGS LLC


 


A Limited Liability Company under the laws of the
State of Delaware


 


Certificate of Interest


 


This certifies that
                            is
the owner of a membership interest in DYNAVOX SYSTEMS HOLDINGS LLC (the “Company”)
subject to the terms of the Second Amended and Restated Limited Liability
Company Agreement dated as of January 22, 2008 as the same may be amended
from time to time in accordance with its terms (the “LLC Agreement”).  The membership interest evidenced hereby
shall be the interest in the Company appearing in the books and records of the
Company.


 


This Certificate of Interest
may be transferred by the lawful holders hereof only in accordance with the
provisions of the Operating Agreement.


 


THIS SECURITY IS SUBJECT TO
THE PROVISIONS OF THE LLC AGREEMENT.