Exhibit 10.10


 


EXECUTION COPY


 


AMENDED AND
RESTATED

EMPLOYMENT AGREEMENT

(Michelle Heying)


 


AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (the “Agreement”) dated April 7, 2010 by and between
DynaVox Systems LLC (the “Company”) and Michelle Heying (the “Executive”).


 


The Company and Executive
are parties to that certain Employment Agreement, dated November 15, 2007
(the “Prior Agreement”); and


 


The Company and Executive
desire to amend the Prior Agreement in certain respects effective on and after
the date hereof and to restate the Prior Agreement to read in its entirety as
follows.


 


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


 


1.             Term of Employment.  Subject to the provisions of Section 8
of this Agreement, Executive shall be employed by the Company for a period
commencing on April 7, 2010 (the “Commencement Date”) and ending on April 6,
2013 (the “Employment Term”) on the terms and subject to the conditions set
forth in this Agreement; provided, however, that commencing with April 7,
2013 and on each April 7 thereafter (each an “Extension Date”), the
Employment Term shall be automatically extended for an additional one-year
period, unless the Company or Executive provides the other party hereto 90 days’
prior written notice before the next Extension Date that the Employment Term
shall not be so extended.


 


2.             Position.


 


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


 


b.             During the Employment Term, Executive will
devote Executive’s best efforts (subject, in each case, to periods of vacation
and illness) to the performance of Executive’s duties hereunder and will not
engage in any other business, profession or occupation for compensation or
otherwise which would conflict or reasonably be expected to interfere in any
material respect with the rendition of such services either directly or
indirectly, without the prior written consent of the Board of Directors of
DynaVox Inc. (the “Board”); provided, that Executive may accept appointment to
serve on any board of directors or trustees of any business corporation or any
charitable organization, with the prior written consent of the Board, which
consent shall not be unreasonably withheld, so long as such activities do not
conflict or interfere  in any material respect with the performance of Executive’s duties
hereunder or conflict with or violate Section 10 or 11.


 

















 


3.             Base
Salary. 
During the Employment Term, the Company shall pay Executive a base
salary at the annual rate of $350,000, payable in regular installments in
accordance with the Company’s normal payroll practices.  Executive shall be entitled to such increases
in Executive’s base salary, if any, as may be determined from time to time in
the sole discretion of the Board or the appropriate committee thereof.  Executive’s annual base salary, as in effect
from time to time, is hereinafter referred to as the “Base Salary.”


 


4.             Annual
Bonus.  With respect to
the 2010 fiscal year and each full fiscal year during the Employment Term
commencing with the 2011 fiscal year,
Executive shall be eligible to earn an annual cash bonus award (an “Annual
Bonus”) under the applicable bonus plan of the Company or one of its affiliates of up to fifty percent (50%) of Executive’s Base Salary (the “Target
Bonus”) based upon the achievement of performance targets established by the
Board or the appropriate committee thereof, based on the Company’s annual
operating plan as established by the Board or the appropriate committee
thereof, within the first ninety (90) days of each applicable fiscal year and
otherwise subject to the terms of such bonus plan.  In addition, Executive shall be given the
opportunity to earn an Annual Bonus in excess of the Target Bonus for superior
performance upon the Company achieving the goals to be established by the Board
or the appropriate committee thereof within the first ninety (90) days of each
applicable fiscal year.  The Annual
Bonus, if any, payable hereunder shall be paid within ten (l0) business days
following the Company’s receipt of the final audited financial statements from
the Company’s accounting firm in respect of the relevant fiscal year; provided
that Executive is employed by the Company on such payment date, unless
otherwise expressly provided for herein.


 


5.             Employee Benefits/Equity.


 


a.             During the Employment Term, Executive shall be entitled to participate in
the Company’s employee benefit plans as in effect from time to time
(collectively “Employee Benefits”), on the same basis as those benefits are
generally made available to other executives of the Company; provided
that such benefits shall include no less than four (4) weeks’ vacation.


 


b.             In addition to the foregoing, it is acknowledged and agreed
that DynaVox Inc. (“DynaVox”) is currently developing an equity-based incentive
program (the “Program”) for executives of the Company.  Subject to the
pricing (the “Pricing”) of the initial public offering (the “IPO”) of the Class A
common stock (the “Common Stock”) of DynaVox, Executive shall be granted under
the Program, on the date of the Pricing, stock options to purchase a number of
shares of Common Stock equal to twelve percent (12%) of the shares available
for issuance under the Program as of the date of the Pricing, which options
shall have an exercise price equal to the initial public offering price per
share of the Common Stock, a ten-year stated term, and vest at a rate of 20%
per year from the date of grant; and in all other respects be subject to
substantially similar terms and conditions as the terms and conditions that
will generally apply to similarly situated senior executives of the Company
under the Program.  It is further acknowledged and agreed that all of
Executive’s limited liability company units of DynaVox Systems Holdings LLC as
outstanding immediately before the Pricing shall be deemed to be “vested” in
connection with the IPO.


 


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


 


7.             [Intentionally omitted]


 


8.             Termination.  The Employment Term and Executive’s
employment hereunder may be terminated by either party at any time and for any
reason; provided that Executive will be required to give the Company at least
60 days’ advance written notice of any resignation of Executive’s employment
without Good Reason (as defined in Section 8(c)).  Notwithstanding any other provision of this
Agreement, the provisions of this Section 8 shall exclusively govern
Executive’s rights upon termination of employment with the Company and its
affiliates.


 


a.             By the Company For Cause or By Executive
Resignation Without Good Reason.


 


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


 


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


 


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


 


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


 


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


 


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


 


(E)           Willful and repeated failure by Executive to comply with the lawful and
reasonable directives of the CEO consistent with Executive’s duties 


 


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hereunder, provided
Executive does not cure such failure within 30 days after receipt from the
Company of written notice of such failure; or


 


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


 


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


 


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


 


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


 


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


 


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


 


(D)          such fully vested and non-forfeitable Employee Benefits, if any, as to
which Executive may be entitled under the employee benefit plans of the
Company, including, but not limited to, accrued but unused paid leave time (the
amounts described in clauses (A) through (D) hereof being referred to
as the “Accrued Rights”).


 


Following such
termination of Executive’s employment by the Company for Cause or resignation
by Executive without Good Reason, except as set forth in this Section 8(a)(iii),
Executive shall have no further rights to any compensation or any other
benefits under this Agreement.


 


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b.             Disability or Death.


 


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


 


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


 


(A)          the Accrued Rights;


 


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


 


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


 


Following Executive’s
termination of employment due to death or Disability, except as set forth in
this Section 8(b)(ii), Executive shall have no further rights to any
compensation or any other benefits under this Agreement.


 


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


 


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


 


(ii)          For purposes of this Agreement, “Good Reason” shall mean, without
Executive’s consent, (A) the failure of the Company to pay or cause to be
paid Executive’s Base Salary or Annual Bonus, if any, when due hereunder or
failure to provide, in all material respects, the benefits described in Section 5,
(B) any substantial and sustained diminution in Executive’s authority or
responsibilities from those described in Section 2 hereof, (C) relocation
of the Company’s headquarters more than fifty miles from the Pittsburgh,
Pennsylvania metropolitan area, or (D) a material breach by the
Company of this Agreement or any other plan or agreement under which Executive
is entitled to compensation or benefits by reason of services 


 


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provided to the Company hereunder; provided
that the events described in clauses (A) through (D) of this Section 8(c)(ii) shall
constitute Good Reason only if the Company fails to cure such event within 30
days after receipt from Executive of written notice of the event which
constitutes Good Reason; provided, further, that, “Good Reason”
shall cease to exist for any event described in this Section 8(c)(ii) on
the 90th day following the later of its occurrence or
Executive’s knowledge thereof, unless Executive has given the Company written
notice of termination prior to such date.


 


(iii)         If Executive’s employment is terminated by the Company
without Cause (other than by reason of death or Disability) or Executive
resigns for Good Reason, Executive shall be entitled to receive, in addition to
the Accrued Rights and subject to (I) Executive’s continued compliance
with the provisions of Sections 10 and 11 (solely with respect to clause (A) below)
and (II) Executive’s execution, delivery and non-revocation of a general
release of claims in favor of the Company and its affiliates in a form
prescribed by the Company (the “Release”) within 45 days following the
termination date:


 


(A)          continued payment of the Base Salary in accordance with the Company’s
normal payroll practices until twenty-four (24) months after the date of such
termination (such amounts, the “Salary Continuation Payments”).  The Salary Continuation Payments shall
commence on the 60th day following Executive’s termination of
employment (with payments in arrears from the termination date);


 


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


 


(C)           continued medical and dental coverage for a period of eighteen (18)
months following the date of such termination, provided that payments for such
coverage by Executive shall be consistent with the payments required by other
senior executives for such coverage at that time.  In order to facilitate such coverage,
Executive and her spouse and dependents, as applicable, in accordance with the
Company’s policies in effect at the time of Executive’s termination, shall
agree to elect continuation coverage in accordance with the provisions of the
Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (“COBRA”).


 


Following Executive’s
termination of employment by the Company without Cause (other than by reason of
death or Disability) or by Executive for Good Reason, except as set forth in
this Section 8(c)(iii), Executive shall have no further rights to any
compensation or any other benefits under this Agreement.


 


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d.             Expiration of Employment Term.  In the
event either party elects not to extend the Employment Term pursuant to Section 1,
unless Executive’s employment is earlier terminated pursuant to paragraphs (a),
(b) or (c) of this Section 8, Executive’s termination of
employment hereunder (whether or not Executive continues as an employee of the
Company thereafter) shall be deemed to occur on the close of business on the
day immediately preceding the next scheduled Extension Date and Executive shall
be entitled to receive the Accrued Rights.


 


Following such
termination of Executive’s employment hereunder as a result of either party’s
election not to extend the Employment Term, except as set forth in this Section 8(d),
Executive shall have no further rights to any compensation or any other
benefits under this Agreement.


 


Unless the parties otherwise agree in writing, continuation
of Executive’s employment with the Company beyond the expiration of the
Employment Term shall be deemed an employment at-will and shall not be deemed
to extend any of the provisions of this Agreement and Executive’s employment
may thereafter be terminated at will by either Executive or the Company; provided
that the provisions of Sections 10, 11 and 12 of this Agreement shall survive
any termination of this Agreement or Executive’s termination of employment hereunder.


 


e.             Notice of Termination.  Any
purported termination of employment by the Company or by Executive (other than
due to Executive’s death) shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 15(i) hereof.  For purposes of this Agreement, a “Notice of
Termination” shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of employment under the provision so indicated.


 


9.             Change of Control.


 


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


 


For purposes of this Agreement, “Change of
Control” means (i) the sale or disposition, in one or a series of related
transactions, of all or substantially all of the assets of DynaVox to any “person”
or “group” (as such terms are defined in Sections 13(d)(3) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the “Act”)) other than any
member of the Vestar/Company Group (as defined below); provided that,
for the avoidance of doubt, a sale of the Mayer-Johnson business shall not
constitute a Change of Control hereunder, (ii) any “person” or “group”,
other than any member of the Vestar/Company Group, is or becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Act), directly or
indirectly, of more than 50% of the total voting power of the voting stock of
DynaVox, including by way of purchase, merger, consolidation or otherwise, or (iii) during any period of two (2) consecutive
years, individuals who at the beginning of such period constituted the Board
(together with any new directors whose election by such Board or whose
nomination for election by the shareholders of DynaVox was approved by a vote of a majority of
the directors of DynaVox, then still in office, who were either directors at
the beginning of such period or whose election or nomination for 


 


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election was previously so approved) (the “Incumbent
Board”) cease for any reason to constitute a majority of the Board then in
office; provided that, any director appointed or elected to the Board to
avoid or settle a threatened or actual proxy contest shall in no event be
deemed to be an individual on the Incumbent Board.


 


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


 


For
purposes of this Section 9(a), “Affiliate” means, with respect to any entity, any entity directly or
indirectly controlling, controlled by, or under common control with, such
entity.


 


b.             Notwithstanding
anything herein to the contrary, subject to Executive (x) complying with
her obligations under Section 9(a) above and (y) providing
written notice to the Company no later than ninety (90) days prior to the end
of the Change of Control Period of her intention to terminate employment, if
Executive’s employment is terminated by Executive without Good Reason within
the ninety (90) day period following the end of the Change of Control Period,
Executive shall be entitled to receive, in addition to the Accrued Rights and
subject to (I) Executive’s continued compliance with the provisions of
Sections 10 and 11 (solely with respect to clause (A) below) and (II) Executive’s
execution, delivery and non-revocation of the Release within 45 days following
the termination date:


 


(A)          continued payment of the Base Salary in accordance with the Company’s
normal payroll practices until twenty-four (24) months after the date of such
termination (such amounts, the “CoC Continuation Payments”).  The CoC Continuation Payments shall commence
on the 60th day
following Executive’s termination of employment (with payments in arrears from
the termination date);


 


(B)           continued medical and dental coverage for a period of eighteen (18) months
following the date of such termination, provided that payments for such
coverage by Executive shall be consistent with the payments required by other
senior executives for such coverage at that time.  In order to facilitate such coverage,
Executive and her spouse and dependents, as applicable, in accordance with the
Company’s policies in effect at the time of Executive’s termination, shall
agree to elect continuation coverage in accordance with the provisions of
COBRA; and


 


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


 


Following
Executive’s termination of employment by Executive without Good Reason
following a Change of Control, except as set forth in this Section 9,
Executive shall have no further rights to any compensation or any other
benefits under this Agreement.


 


10.           Non-Competition.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


b.             It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in this Section 10
to be reasonable, if a final judicial determination is made by a court of
competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against Executive,
the provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be
enforceable.  Alternatively, if any court
of competent jurisdiction finds that any restriction contained in this
Agreement is unenforceable,


 


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and such restriction
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained herein.


 


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


 


11.                                 Confidentiality; Intellectual Property.


 


a.                                       Confidentiality.


 


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


 


(ii)                             “Confidential Information” shall not include any information that is (a) 
generally known to the industry or the public other than as a result of
Executive’s breach of this covenant or any breach, to Executive’s knowledge, of
other confidentiality obligations by third parties; (b) made legitimately
available to Executive by a third party without breach of any confidentiality
obligation; or (c) required by law to be disclosed; provided that
Executive shall give prompt written notice to the Company of such requirement,
disclose no more information than is so required, and cooperate with any
attempts by the Company to obtain a protective order or similar treatment.


 


(iii)                          Except as required by law, and unless and until this Agreement is
disclosed by the Company or any of its affiliates as may be required by law,
Executive will not disclose to anyone, other than Executive’s immediate family
and legal or financial advisors, the existence or contents of this Agreement; provided
that Executive may disclose to any prospective future employer the provisions
of Sections 10 and 11 of this Agreement provided they agree to maintain the
confidentiality of such terms.


 


(iv)                         Upon termination of Executive’s employment with the Company for any
reason, Executive shall (x) cease and not thereafter commence use of any
Confidential Information or other intellectual property (including, without
limitation, any patent, invention, copyright, trade secret, trademark, trade
name, logo, domain name or other source indicator) owned or used by the
Company, its subsidiaries or affiliates; (y) immediately destroy, delete,
or return to the Company, at the Company’s option, all originals and copies in
any form or medium 


 


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(including memoranda, books, papers, plans,
computer files, letters and other data) in Executive’s possession or control
(including any of the foregoing stored or located in Executive’s office, home,
laptop or other computer, whether or not Company property) that contain
Confidential Information or otherwise relate to the business of the Company or
any of its affiliates and subsidiaries, except that Executive may retain (i) only
those portions of any personal notes, notebooks and diaries that do not contain
any Confidential Information and (ii) any Confidential Information
Executive reasonably believes is required in relation to any dispute regarding
Executive’s termination of employment, provided such information remains
otherwise subject to the terms and conditions of this Agreement; and (z) notify
and fully cooperate with the Company regarding the delivery or destruction of
any other Confidential Information of which Executive is or becomes aware.


 


b.                                      Intellectual Property.


 


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


 


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


 


(iii)                          Executive shall take all requested actions and execute all requested
documents (including any licenses or assignments required by a government
contract) at the Company’s expense (but without further remuneration) to assist
the Company in validating, maintaining, protecting, enforcing, perfecting,
recording, patenting or registering any of the Company’s rights in the Company
Works.


 


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


 


12

















 


amend any such policies and guidelines from
time to time, and that Executive remains at all times bound by their most
current version.


 


(v)                            The provisions of Section 11 shall survive the termination of
Executive’s employment for any reason.


 


12.                                 Specific Performance.  Executive acknowledges and agrees that the
Company’s remedies at law for a breach or threatened breach of any of the
provisions of Section 10 or Section 11 would be inadequate and the
Company would suffer irreparable damages as a result of such breach or
threatened breach.  In recognition of
this fact, Executive agrees that, in the event of such a breach or threatened
breach, in addition to any remedies at law, the Company, without posting any
bond, shall be entitled to cease making any payments or providing any benefit
otherwise required by this Agreement (other than any payments or benefits which
have been earned and vested) and obtain equitable relief in the form of
specific performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be available.


 


13.                                 Indemnification.  The Company agrees that if Executive is made
a party or is threatened to be made a party to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a “Proceeding”), in
connection with Executive’s capacity as a trustee, director or officer of the
Company or any of its subsidiaries or, at the request of the Company or any of
its subsidiaries, in Executive’s capacity as a trustee, director, officer,
member, employee or agent of another corporation or a partnership, joint
venture, limited liability company, trust or other enterprise, including,
without limitation, service with respect to employee benefit plans, Executive
shall be indemnified and held harmless by the Company to the fullest extent
authorized by Delaware law, as the same exists or may hereafter be amended,
against all Expenses incurred or suffered by Executive in connection therewith,
and such indemnification shall continue as to Executive even if Executive has
ceased to be an officer, director, trustee or agent, or is no longer employed
by the Company and shall inure to the benefit of her heirs, executors and
administrators.  As used in this
Agreement, the term “Expenses” shall include, without limitation, damages,
losses, judgments, liabilities, fines, penalties, excise taxes, settlements,
and costs, attorneys’ fees, accountants’ fees, and disbursements and costs of
attachment or similar bonds, investigations, and any expenses of establishing a
right to indemnification under this Agreement. 
All obligations for indemnification hereunder shall be subject to, and paid
in accordance with, applicable Delaware law. 
If Executive is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any Expenses, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Executive for the portion of such Expenses to which Executive is entitled.  Expenses incurred by Executive in connection
with any Proceeding shall be paid by the Company in advance upon request of
Executive that the Company pay such Expenses, but only in the event that
Executive shall have delivered in writing to the Company (a) an
undertaking to reimburse the Company for Expenses with respect to which
Executive is not entitled to indemnification and (b) a statement of her
good faith belief that the standard of conduct necessary for indemnification by
the Company has been met.  With respect
to any Proceeding as to which Executive notifies the Company of the
commencement thereof: (x) the Company will be entitled to participate
therein at its own expense; (y) except as otherwise provided below, to the
extent that it may wish, the Company will be entitled to assume the defense
thereof, with counsel reasonably 


 


13

















 


satisfactory to Executive; Executive also
shall have the right to employ her own counsel in such action, suit or
proceeding if he reasonably concludes that failure to do so would involve a
conflict of interest between the Company and Executive, and under such
circumstances the fees and expenses of such counsel shall be at the expense of
the Company; and (z) the Company shall not be liable to indemnify the
Executive under this Agreement for any amounts paid in settlement of any action
or claim effected without its written consent. 
The Company shall not settle any action or claim in any manner which
would impose any penalty that would not be paid directly or indirectly by the
Company or limitation on Executive without Executive’s written consent.  Neither the Company nor Executive will
unreasonably withhold or delay their consent to any proposed settlement.  The right to indemnification and the payment
of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this Section 13 shall not be exclusive of any
other right which Executive may have or hereafter may acquire under any statute
or certificate of incorporation or by-laws of the Company or any subsidiary,
agreement, vote of shareholders or disinterested directors or trustees or
otherwise.


 


14.                                 Compliance with IRC Section 409A.  This Agreement is intended
to comply with Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”) and will be interpreted accordingly.  References under this Agreement to Executive’s
termination of employment shall be deemed to refer to the date upon which
Executive has experienced a “separation from service” within the meaning of Section 409A
of the Code.  Notwithstanding anything
herein to the contrary, (i) if at the time of Executive’s separation from
service with the Company and all of its affiliates Executive is a “specified
employee” as defined in Section 409A of the Code (and any related
regulations or other pronouncements thereunder), and the deferral of the
commencement of any payments or benefits otherwise payable hereunder as a
result of such separation from service is necessary in order to prevent any
accelerated or additional tax under Section 409A of the Code, then the
Company will defer the commencement of the payment of any such payments or
benefits hereunder (without any reduction in such payments or benefits
ultimately paid or provided to Executive) until the date that is six months
following Executive’s separation from service (or the earliest date as is
permitted under Section 409A of the Code without any accelerated or
additional tax), (ii) if any other payments of money or other benefits due
to Executive hereunder could cause the application of an accelerated or
additional tax under Section 409A of the Code, such payments or other
benefits shall be deferred if deferral will make such payment or other benefits
compliant under Section 409A of the Code, or otherwise such payment or
other benefits shall be restructured, to the extent possible, in a manner,
determined by the Board following consultation with Executive, that is
reasonably expected not to cause such an accelerated or additional tax, and (iii) if any payments of money or other benefits
due to Executive hereunder or under any other plan or agreement under which
Executive is entitled to compensation or benefits by reason of services
provided to the Company are nevertheless subject to income inclusion by reason
of failure to meet the requirements of Section 409A of the Code, payment
in an amount not to exceed the amount required to be included in income as a
result of such failure shall be made immediately upon such failure; provided
that deferral or restructuring of payments or benefits as provided for under
clause (ii) above is not possible or is unsuccessful.  The Company
shall consult with Executive in good faith regarding the implementation of the
provisions of this Section 14; provided that neither the Company nor any
of its employees or representatives shall have any liability to Executive with
respect to thereto.  To the extent any
reimbursements or in-kind benefits due to Executive under this Agreement
constitute “deferred compensation” under Section 409A of the Code, any
such 


 


14

















 


reimbursements or in-kind benefits shall be
paid to Executive in a manner consistent with Treasury Regulation Section 1.409A-3(i)(1)(iv).  For purposes of Section 409A of the
Code, each payment made under this Agreement shall be designated as a “separate
payment” within the meaning of Section 409A of the Code.


 


15.                                 Miscellaneous.


 


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


 


b.                                      Legal Fees.  The Company shall reimburse Executive for the
reasonable legal fees incurred by Executive in connection with the negotiation
of this Agreement, subject to (x) receiving customary back-up and
supporting documentation regarding such fees and (y) a cap of $15,000. Payment in
respect of approved legal fees shall be made on or before the last day of the
taxable year following the taxable year in which the expenses were incurred.


 


c.                                       Arbitration.  Except as
provided in Section 12 of this Agreement, any controversy or claim arising
out of or relating to this Agreement or Executive’s employment with the Company
or the termination thereof shall be resolved by binding confidential
arbitration, to be held in Pittsburgh, Pennsylvania, in accordance with the
Employee Dispute Resolution Rules of the American Arbitration
Association.  Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.


 


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


 


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


 


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


 


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


 


15

















 


Company. 
Upon such assignment, the rights and obligations of the Company hereunder
shall become the rights and obligations of such affiliate or successor person
or entity.


 


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


 


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


 


If to the Company:


 


Dynavox Systems LLC

2100 Wharton Street

Suite 400

Pittsburgh, PA 15203

Attention: Chief Financial Officer


 


If to Executive:


 


To the most recent address on file with the Company.


 


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


 


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


 


l.                                          Prior
Agreements.  This Agreement and the Program supersede all
prior agreements and understandings (including verbal agreements) between
Executive and the Company and/or its affiliates regarding the terms and
conditions of Executive’s employment with the Company and/or its affiliates
including, without limitation, the Prior Agreement.


 


m.                                    Cooperation.  Executive
shall provide Executive’s reasonable cooperation in connection with any action
or proceeding (or any appeal from any action or proceeding) with a third party
which relates to events occurring during Executive’s employment 


 


16

















 


hereunder, subject to reimbursement by the
Company for all reasonable expenses incurred in connection therewith.  This provision shall survive any termination
of this Agreement.


 


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


 


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


 


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17

















 


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


 


	
  DYNAVOX
  SYSTEMS LLC

  	
   

  	
  MICHELLE
  HEYING

  
	
   

  	
   

  	
   

  
	
  /s/
  Kenneth D. Misch

  	
   

  	
  /s/
  Michelle Heying

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Kenneth
  D. Misch

  	
   

  	
   

  
	
  Title:

  	
  Chief
  Financial Officer