Exhibit 10.1


 






 


DYNAVOX SYSTEMS HOLDINGS LLC


 


A Delaware Limited Liability Company


 






 


THIRD AMENDED AND RESTATED


 


LIMITED LIABILITY COMPANY AGREEMENT


 


Dated as of     , 2010


 


THE LIMITED
LIABILITY COMPANY INTERESTS IN DYNAVOX SYSTEMS HOLDINGS LLC HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, THE SECURITIES
LAWS OF ANY STATE OR ANY OTHER APPLICABLE SECURITIES LAWS AND ARE BEING SOLD IN
RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND SUCH LAWS.  SUCH INTERESTS MUST
BE ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE
WITH (I) THE SECURITIES ACT, ANY APPLICABLE SECURITIES LAWS OF ANY STATE
AND ANY OTHER APPLICABLE SECURITIES LAWS; (II) THE TERMS AND CONDITIONS OF
THIS THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT; AND (III) ANY
OTHER TERMS AND CONDITIONS AGREED TO IN WRITING BETWEEN THE MANAGING MEMBER AND
THE APPLICABLE MEMBER.  THE LIMITED
LIABILITY COMPANY INTERESTS MAY NOT BE TRANSFERRED OF RECORD EXCEPT IN
COMPLIANCE WITH SUCH LAWS, THIS THIRD AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT, AND ANY OTHER TERMS AND CONDITIONS AGREED TO IN WRITING BY
THE MANAGING MEMBER AND THE APPLICABLE MEMBER. 
THEREFORE, PURCHASERS AND OTHER TRANSFEREES OF SUCH LIMITED LIABILITY
COMPANY INTERESTS WILL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENT OR
ACQUISITION FOR AN INDEFINITE PERIOD OF TIME.


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
  ARTICLE
  I DEFINITIONS

  	
  1

  
	
  Section 1.1.   Definitions

  	
  1

  
	
  Section 1.2.   Terms Generally

  	
  10

  
	
   

  	
   

  
	
  ARTICLE
  II GENERAL PROVISIONS

  	
  11

  
	
  Section 2.1.   Formation

  	
  11

  
	
  Section 2.2.   Name

  	
  11

  
	
  Section 2.3.   Section Term

  	
  11

  
	
  Section 2.4.   Purpose; Powers

  	
  11

  
	
  Section 2.5.   Existence and Good
  Standing; Foreign Qualification

  	
  11

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

  	
  12

  
	
  Section 2.7.   No State Law
  Partnership

  	
  12

  
	
  Section 2.8.   Admission

  	
  13

  
	
   

  	
   

  
	
  ARTICLE
  III CAPITALIZATION

  	
  13

  
	
  Section 3.1.   Units; Initial
  Capitalization; Schedules

  	
  13

  
	
  Section 3.2.   Authorization and
  Issuance of Additional Units

  	
  14

  
	
  Section 3.3.   Capital Accounts

  	
  15

  
	
  Section 3.4.   No Withdrawal

  	
  17

  
	
  Section 3.5.   Loans From Members

  	
  17

  
	
  Section 3.6.   No Right of Partition

  	
  18

  
	
  Section 3.7.   Non-Certification of
  Units; Legend; Units are Securities

  	
  18

  
	
   

  	
   

  
	
  ARTICLE
  IV DISTRIBUTIONS

  	
  19

  
	
  Section 4.1.   Distributions

  	
  19

  
	
  Section 4.2.   Unvested Units

  	
  19

  
	
  Section 4.3.   Successors

  	
  20

  
	
  Section 4.4.   Tax Distributions

  	
  20

  
	
  Section 4.5.   Security Interest
  and Right of Set Off; Indemnification

  	
  20

  
	
  Section 4.6.   Certain
  Distributions

  	
  21

  
	
  Section 4.7.   Limitation

  	
  21

  
	
   

  	
   

  
	
  ARTICLE
  V ALLOCATIONS

  	
  21

  
	
  Section 5.1.   Allocations for
  Capital Account Purposes

  	
  21

  
	
  Section 5.2.   Allocations for Tax
  Purposes

  	
  24

  
	
  Section 5.3.   Members’ Tax
  Reporting

  	
  26

  
	
  Section 5.4.   Certain Costs and
  Expenses

  	
  26

  
	
   

  	
   

  
	
  ARTICLE
  VI MANAGEMENT

  	
  26

  
	
  Section 6.1.   Managing Member;
  Delegation of Authority and Duties

  	
  26

  
	
  Section 6.2.   Officers

  	
  27

  
	
  Section 6.3.   Liability of Members

  	
  28

  
	
  Section 6.4.   Indemnification by
  the Company

  	
  29

  



 


i

















 


	
  Section 6.5.   Investment
  Representations of Members

  	
  30

  
	
   

  	
   

  
	
  ARTICLE VII WITHDRAWAL; DISSOLUTION; TRANSFER OF
  MEMBERSHIP INTERESTS; ADMISSION OF NEW MEMBERS

  	
  30

  
	
  Section 7.1.   Member Withdrawal

  	
  30

  
	
  Section 7.2.   Continuation of
  Vesting

  	
  30

  
	
  Section 7.3.   Dissolution

  	
  30

  
	
  Section 7.4.   Transfer by Members

  	
  32

  
	
  Section 7.5.   Admission or
  Substitution of New Members

  	
  32

  
	
  Section 7.6.   Additional
  Requirements

  	
  34

  
	
  Section 7.7.   Mandatory Exchange

  	
  34

  
	
  Section 7.8.   Bankruptcy

  	
  34

  
	
   

  	
   

  
	
  ARTICLE
  VIII BOOKS AND RECORDS; FINANCIAL STATEMENTS AND OTHER INFORMATION; TAX
  MATTERS

  	
  34

  
	
  Section 8.1.   Books and Records

  	
  34

  
	
  Section 8.2.   Information

  	
  35

  
	
  Section 8.3.   Fiscal Year

  	
  35

  
	
  Section 8.4.   Certain Tax Matters

  	
  35

  
	
   

  	
   

  
	
  ARTICLE
  IX MISCELLANEOUS

  	
  37

  
	
  Section 9.1.   Separate Agreements;
  Schedules

  	
  37

  
	
  Section 9.2.   Governing Law

  	
  37

  
	
  Section 9.3.   Successors and
  Assigns

  	
  37

  
	
  Section 9.4.   Amendments and
  Waivers

  	
  37

  
	
  Section 9.5.   Notices

  	
  39

  
	
  Section 9.6.   Counterparts

  	
  39

  
	
  Section 9.7.   Power of Attorney

  	
  39

  
	
  Section 9.8.   Entire Agreement

  	
  40

  
	
  Section 9.9.   Remedies

  	
  40

  
	
  Section 9.10.   Severability

  	
  40

  
	
  Section 9.11.   Creditors

  	
  40

  
	
  Section 9.12.   Waiver

  	
  40

  
	
  Section 9.13.   Further Action

  	
  41

  
	
  Section 9.14.  
  Delivery by Facsimile or Email

  	
  41

  



 


ii

















 


THIRD AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

DYNAVOX SYSTEMS HOLDINGS LLC

A Delaware Limited Liability Company


 


This THIRD AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT of DynaVox Systems Holdings LLC (the “Company”),
dated and effective as of
          , 2010 (this “Agreement”),
is adopted, executed and agreed to, for good and valuable consideration, by and
among the Members (as defined below).


 


WHEREAS, as of April 20, 2004, DynaVox
Investors LLC, a Delaware limited liability company, formed the Company as a
limited liability company under the Act by executing the Limited Liability
Company Agreement of DynaVox Systems Holdings LLC (the “Original Agreement”)
and filing a Certificate of Formation with the Office of the Secretary of State
of the State of Delaware;


 


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


 


WHEREAS, as of January 22, 2008, the
First Amended Agreement was amended and restated in accordance with its terms
(the “Second Amended Agreement”);


 


WHEREAS, the Management
Committee (as defined in the Second Amended Agreement), with the consent of the
Chief Executive Officer of the Company, wishes to amend and restate the Second
Amended Agreement in accordance with its terms and, in connection therewith, to
(1) convert all outstanding limited liability company interests in the
Company into Class A Units (as defined below) and (2) admit DynaVox
Inc., a Delaware corporation, as sole Managing Member of the Company; and


 


WHEREAS, the parties hereto desire to enter
into this Third Amended and Restated Limited Liability Company Agreement of the
Company.


 


NOW THEREFORE, in consideration of the mutual
covenants and agreements contained herein, the parties hereto, each intending
to be legally bound, agree that the Second Amended Agreement is hereby amended
and restated in its entirety 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, 6 Del. C. Sections 18-101 et seq., as it may be amended
from time to time, and any successor to the Act.


 


1

















 


“Additional Member” means any Person
that has been admitted to the Company as a Member pursuant to Section 7.5
by virtue of having received its Membership Interest from the Company and not
from any other Member or Assignee.


 


“Adjusted Capital Account” means the
Capital Account maintained for each Member as of the end of each Fiscal Year of
the Company, (a) increased by any amounts that such Member is obligated to
restore under the standards set by Treasury Regulations Section 1.704-1(b)(2)(ii)(c) (or
is deemed obligated to restore under Treasury Regulations Sections 1.704-2(g) and
1.704-2(i)(5)) and (b) decreased by (i) the amount of all losses and
deductions that, as of the end of such Fiscal Year, are reasonably expected to
be allocated to such Member in subsequent years under Sections 704(e)(2) and
706(d) of the Code and Treasury Regulations Section 1.751-1(b)(2)(ii),
and (ii) the amount of all distributions that, as of the end of such
Fiscal Year, are reasonably expected to be made to such Member in subsequent
years in accordance with the terms of this Agreement or otherwise to the extent
they exceed offsetting increases to such Member’s Capital Account that are
reasonably expected to occur during (or prior to) the year in which such
distributions are reasonably expected to be made (other than increases as a
result of a minimum gain chargeback pursuant to Section 5.1(b)(i) or
Section 5.1(b)(ii)). The foregoing definition of Adjusted Capital
Account is intended to comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith. 
The “Adjusted Capital Account” of a Member in respect of a Unit
shall be the amount that such Adjusted Capital Account would be if such Unit
were the only interest in the Company held by such Member from and after the
date on which such Unit was first issued.


 


“Adjusted Property” means any property
the Carrying Value of which has been adjusted pursuant to Section 3.3(c)(i) or
Section 3.3(c)(ii).


 


“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 its directors, managers,
officers and employees in their capacities as such.


 


“Agreed Value” of any Contributed
Property means the fair market value of such property or other consideration at
the time of contribution as determined by the Managing Member, without taking
into account any liabilities to which such Contributed Property was subject at
such time.  The Managing Member shall use
such method as it determines to be appropriate to allocate the aggregate Agreed
Value of Contributed Properties contributed to the Company in a single or
integrated transaction among each separate property on a basis proportional to
the fair market value of each Contributed Property.


 


“Assignee” means any Transferee to
which a Member or another Assignee has Transferred all or a portion of its
interest in the Company in accordance with the terms of this Agreement, but
that is not admitted to the Company as a Member.


 


“Assumed Tax Rate” means, for any
taxable year, the highest marginal effective rate of federal, state and local
income tax applicable to an individual resident in New York, New York (or, if
higher, a corporation doing business in New York, New York), taking account of
any 


 


2

















 


differences in rates
applicable to ordinary income and capital gains and any allowable deductions in
respect of such state and local taxes in computing a Member’s liability for
federal income tax; provided that the Assumed Tax Rate for ordinary income
initially will be set at 45 percent, as adjusted by decision of the Managing
Member; and provided further that the Assumed Tax Rate for ordinary income
shall be recalculated at any time that the applicable tax rates change.


 


“Bankruptcy” means, with respect to
any Person, (A) if such Person (i) makes an assignment for the
benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is
adjudged a bankrupt or insolvent, or has entered against it an order for
relief, in any bankruptcy or insolvency proceedings, (iv) files a petition
or answer seeking for itself any reorganization, arrangement, composition,
readjustment, liquidation or similar relief under any statute, law or
regulation, (v) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all or any
substantial part of its properties, or (B) if 120 days after the
commencement of any proceeding against the Person seeking reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any
statute, law or regulation, if the proceeding has not been dismissed, or if
within 90 days after the appointment without such Person’s consent or
acquiescence of a trustee, receiver or liquidator of such Person or of all or
any substantial part of its properties, the appointment is not vacated or
stayed, or within 90 days after the expiration of any such stay, the
appointment is not vacated.  The
foregoing definition of “Bankruptcy” is intended to replace and shall supersede
and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and
18-304 of the Act.


 


“Book-Tax Disparity” means, with
respect to any item of Contributed Property or Adjusted Property, as of the
date of any determination, the difference between the Carrying Value of such
Contributed Property or Adjusted Property and the adjusted basis thereof for
federal income tax purposes as of such date.


 


“Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks in
New York, New York are authorized or required to close.


 


“Capital Account” means the capital
account maintained for a Member pursuant to Section 3.3.


 


“Capital Contribution” means any cash,
cash equivalents or the Fair Market Value of other property that a Member
contributes to the Company with respect to any Unit or other Equity Securities
issued by the Company (net of liabilities assumed by the Company or to which
such property is subject).


 


“Carrying Value” means (a) with
respect to a Contributed Property, subject to the following sentence, the
Agreed Value of such property reduced (but not below zero) by all depreciation,
amortization and cost recovery deductions charged to the Members’ Capital
Accounts in respect of such Contributed Property, and (b) with respect to
any other Company property, subject to the following sentence, the adjusted
basis of such property for federal income tax purposes, all as of the time of
determination.  The Carrying Value of any
property shall be adjusted from time to time in accordance with Section 3.3(d)(i) and
Section 3.3(d)(ii) 


 


3

















 


and to reflect changes,
additions or other adjustments to the Carrying Value for dispositions and
acquisitions of Company properties, as deemed appropriate by the Managing
Member.


 


“Certificate” has the meaning set
forth in Section 2.1.


 


“Class” means the classes into which
the limited liability company interests in the Company created in accordance
with Section 3.1 and Section 3.2(a) may be
classified or divided from time to time by the Managing Member in its sole
discretion pursuant to the provisions of this Agreement. As of the date of this
Agreement the only Class is the Class A Units. Subclasses within a Class shall
not be separate Classes for purposes of this Agreement. For all purposes
hereunder and under the Act, only such Classes expressly established under this
Agreement, including by the Managing Member in accordance with this Agreement,
shall be deemed to be a class or group of limited liability company interests
in the Company.  For the avoidance of
doubt, to the extent that the Managing Member holds limited liability company
interests of any Class, the Managing Member shall not be deemed to hold a
separate Class of such interests from any other Member because it is the
Managing Member.


 


“Class A Units” has the meaning
set forth in Section 3.1.


 


“Code” means the United States
Internal Revenue Code of 1986, as amended from time to time.


 


“Company” has the meaning set forth in
the preamble hereto.


 


“Company Minimum Gain” has the meaning
set forth for the term “partnership minimum gain” in Treasury Regulations Section 1.704-2(d).


 


“Control” means, when used with
reference to any Person, 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 other understanding (written or oral); and the terms “controlling”
and “controlled” shall have meanings correlative to the foregoing.


 


“Contributed Property” means any
property contributed to the Company by a Member.


 


“Curative Allocation” means any
allocation of an item of income, gain, deduction, loss or credit pursuant to
the provisions of Section 5.1(b)(ix).


 


“Distributable Assets” means, with
respect to any fiscal period, all cash receipts (including from any operating,
investing and financing activities) and (if distribution thereof is determined
to be necessary or desirable by the Managing Member) other assets of the
Company from any and all sources, reduced by operating cash expenses,
contributions of capital to Subsidiaries of the Company and payments (if any)
required to be made in connection with any loan to the Company and any reserve
for contingencies or escrow required, in each case, as is determined by the
Managing Member in its sole discretion.


 


“Economic Risk of Loss” has the
meaning set forth in Section 5.1(b)(vi).


 


4














 


“Equity Securities” means, as
applicable, (i) any capital stock, limited liability company or membership
interests, partnership interests,  or
other equity interest, (ii) any securities directly or indirectly
convertible into or exchangeable for any capital stock, limited liability
company or membership interests, partnership interests,  or other equity interest or containing any
profit participation features, (iii) any rights or options directly or
indirectly to subscribe for or to purchase any capital stock, limited liability
company or membership interests, partnership interest,  other equity interest or securities
containing any profit participation features or to subscribe for or to purchase
any securities directly or indirectly convertible into or exchangeable for any
capital stock, limited liability company or membership interests, partnership
interest, other equity interests or securities containing any profit
participation features, (iv) any equity appreciation rights, phantom
equity rights or other similar rights, or (v) any Equity Securities issued
or issuable with respect to the securities referred to in clauses (i) through
(iv) above in connection with a combination, recapitalization, merger,
consolidation or other reorganization.


 


“Exchange Agreement” means the
Exchange Agreement, dated on or about the date hereof among the Managing Member
and the Holdings Unitholders (as defined therein) from time to time party
thereto, as it may be amended or supplemented from time to time.


 


“Fair Market Value” means (i) in
reference to a particular Unit or other Equity Security issued by the Company
or, as the case may be, all of the outstanding Units or other Equity Securities
issued by the Company, the hypothetical amount that would be distributed with
respect to such Unit(s) or Equity Security(ies), as determined pursuant to
an appraisal, which appraisal shall be subject to the approval of the Managing
Member, performed at the expense of the Company by (A) the Company or any
of its Subsidiaries or (B) an investment bank, accounting firm or other
Person of national standing having particular expertise in the valuation of
businesses comparable to that of the Company selected by the Managing Member,
and where such appraisal (1) determines the net equity value of the
Company, and (2) assumes the distribution to the Members pursuant to Section 4.1
and ARTICLE VII of the proceeds that would hypothetically be received
with respect to such Unit(s) or other Equity Security(ies) issued by the
Company based on such net equity value, and (ii) in reference to assets or
securities other than Units or other Equity Securities issued by the Company,
the fair market value for such assets or securities as between a willing buyer
and a willing seller in an arm’s length transaction occurring on the date of
valuation, taking into account all relevant factors determinative of value, as
is determined by the Managing Member in its sole discretion.


 


“First Amended Agreement” has the
meaning set forth in the recitals hereto.


 


“Fiscal Quarter” means each fiscal
quarter of the Company, which unless otherwise determined by the Managing
Member in its sole discretion shall be each successive thirteen or fourteen
week period ending on the Friday nearest the last day of each of September,
December, March and June of any Fiscal Year.


 


“Fiscal Year” means the fiscal year of
the Company, which unless otherwise determined by the Managing Member in its
sole discretion shall be each successive fifty-two or fifty-three week period
ending on the Friday nearest June 30.


 


5

















 


“GAAP” means accounting principles
generally accepted in the United States of America, consistently applied and
maintained throughout the applicable periods.


 


“Good Faith” shall mean a Person
having acted in good faith and in a manner such Person reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
a criminal proceeding, having had no reasonable cause to believe such Person’s
conduct was unlawful.


 


“Governmental Entity” means the United
States of America or any other nation, any state or other political subdivision
thereof, or any entity exercising executive, legislative, judicial, regulatory
or administrative functions of government, including any court, in each case,
having jurisdiction over the Company or any of its Subsidiaries or any of the
property or other assets of the Company or any of its Subsidiaries.


 


“HSR Act” has the meaning set forth in
Section 7.3(f).


 


“Income” means individual items of
Company income and gain determined in accordance with the definitions of Net
Income and Net Loss.


 


“IPO” means the initial public
offering and sale of Class A common stock, par value $0.01 per share, of
the Managing Member (as contemplated by the Managing Member’s Registration
Statement on Form S-1 (File No. 333-164217)).


 


“Loss” means individual items of
Company loss and deduction determined in accordance with the definitions of Net
Income and Net Loss.


 


“Management Committee” has the meaning
set forth in the Second Amended Agreement.


 


“Managing Member” means DynaVox Inc.,
a Delaware corporation, and any assignee to which the managing member of the
Company Transfers all Units and other Equity Securities held by such managing
member of the Company that is admitted to the Company as the managing member of
the Company, in its capacity as the managing member of the Company.


 


“Member” means each Person listed on
the Schedule of Members on the date hereof (including the Managing Member) and
each other Person who is hereafter admitted as a Member in accordance with the
terms of this Agreement and the Act.  The
Members shall constitute the “members” (as such term is defined in the
Act) of the Company.  Any reference in
this Agreement to any Member shall include such Member’s Successors in Interest
to the extent such Successors in Interest have become Substituted Members in
accordance with the provisions of this Agreement.  Except as otherwise set forth herein or in
the Act, the Members shall constitute a single class or group of members of the
Company for all purposes of the Act and this Agreement.


 


“Member Nonrecourse Debt” has the
meaning set forth for the term “partner nonrecourse debt” in Treasury
Regulations Section 1.704-2(b)(4).


 


6

















 


“Member Nonrecourse Debt Minimum Gain”
has the meaning set forth in Treasury Regulations Section 1.704-2(i)(2).


 


“Member Nonrecourse Deduction” has the
meaning set forth for the term “partner nonrecourse deduction” in
Treasury Regulations Section 1.704-2(i)(2).


 


“Membership Interest” means, with
respect to each Member, such Member’s economic interest and rights as a Member.


 


“Net Agreed Value” means, (a) in
the case of any Contributed Property, the Agreed Value of such property reduced
by any liabilities either assumed by the Company upon such contribution or to
which such property is subject when contributed, and (b) in the case of
any property distributed to a Member by the Company, the Company’s Carrying
Value of such property (as adjusted pursuant to Section 3.3(d)(ii))
at the time such property is distributed, reduced by any liabilities either
assumed by such Member upon such distribution or to which such property is
subject at the time of distribution.


 


“Net Income” means, for any taxable
year, the excess, if any, of the Company’s items of income and gain for such
taxable year over the Company’s items of loss and deduction for such taxable
year.  The items included in the
calculation of Net Income shall be determined in accordance with Section 3.3(b) and
shall not include any items specially allocated under Section 5.1(b).


 


“Net Loss” means, for any taxable
year, the excess, if any, of the Company’s items of loss and deduction for such
taxable year over the Company’s items of income and gain for such taxable
year.  The items included in the
calculation of Net Loss shall be determined in accordance with Section 3.3(b) and
shall not include any items specially allocated under Section 5.1(b).


 


“Nonrecourse Deductions”
means any and all items of loss, deduction, or expenditure (including, without
limitation, any expenditure described in Section 705(a)(2)(B) of the
Code) that, in accordance with the principles of Treasury Regulations Section 1.704-2(b),
are attributable to a Nonrecourse Liability.


 


“Nonrecourse Liability” has the
meaning set forth in Treasury Regulations Section 1.752-1(a)(2).


 


“Officer” means each Person designated
as an officer of the Company pursuant to and in accordance with the provisions
of Section 6.2, subject to any resolution of the Managing Member
appointing such Person as an officer of the Company or relating to such
appointment.


 


“Original Agreement” has the meaning
set forth in the recitals hereof.


 


“Percentage Interest” means, with
respect to any Member as of any date of determination, (a) as to any Class A
Units, the product obtained by multiplying (i) 100% less the aggregate
percentage applicable to all Units or other Equity Securities referred to in
clause (b) by (ii) the quotient obtained by dividing (x) the
number of such Units held by such Member by (y) the total number of all
outstanding Class A Units, and (b) as to any other Units or other
Equity 


 


7

















 


Securities in the Company,
the percentage established for such Units or other Equity Securities by the
Managing Member as a part of such issuance.


 


“Person” means an individual, a
partnership (including a limited partnership), a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, association or other entity or a
Governmental Entity.


 


“Pledge” means pledge, grant a
security interest in, create a lien on, assign the right to receive
distributions or proceeds from, or otherwise encumber, directly or indirectly,
or any act of the foregoing.


 


“Proceeding” has the meaning set forth
in Section 6.4.


 


“Quarterly Estimated Tax Periods”
means the two, three, and four calendar month periods with respect to which
Federal quarterly estimated tax payments are made.  The first such period begins on January 1
and ends on March 31.  The second
such period begins on April 1 and ends on May 31.  The third such period begins on June 1
and ends on August 31.  The fourth
such period begins on September 1 and ends on December 31.


 


“Required Allocations” means (a) any
limitation imposed on any allocation of Net Losses under Section 5.1(b) and
(b) any allocation of an item of income, gain, loss or deduction pursuant
to Section 5.1(b)(i), 5.1(b)(ii), 5.1(b)(iii), 5.1(b)(vi) or
5.1(b)(viii).


 


“Residual Gain” or “Residual Loss”
means any item of gain or loss, as the case may be, of the Company recognized
for federal income tax purposes resulting from a sale, exchange or other
disposition of a Contributed Property or Adjusted Property, to the extent such
item of gain or loss is not allocated pursuant to Section 5.2(b)(i)(A) or
5.2(b)(ii)(A), respectively, to eliminate Book-Tax Disparities.


 


“Schedule of Members” has the meaning
set forth in Section 3.1(b).


 


“Second Amended Agreement” has the
meaning set forth in the recitals hereto.


 


“Subsidiary” means, with respect to
any Person, any corporation, limited liability company, partnership,
association or business entity of which (i) if a corporation, a majority
of the total voting power of shares of stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by that Person or one or more of the other Subsidiaries of that Person or a
combination thereof, or (ii) if a limited liability company, partnership,
association or other business entity (other than a corporation), a majority of
partnership or other similar ownership interest thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more Subsidiaries
of that Person or a combination thereof. 
For purposes hereof, a Person or Persons shall be deemed to have a
majority ownership interest in a limited liability company, partnership,
association or other business entity (other than a corporation) if such Person
or Persons shall be allocated a majority of limited liability company,
partnership, association or other business entity gains or losses or shall
control the management of any such limited liability company, partnership,
association or other business entity. 
For purposes hereof, references to a “Subsidiary” of any Person
shall be given effect only at such 


 


8

















 


times that such Person has
one or more Subsidiaries and, unless otherwise indicated, the term “Subsidiary”
refers to a Subsidiary of the Company.


 


“Substituted Member” means any Person
that has been admitted to the Company as a Member pursuant to Section 7.5
by virtue of such Person receiving all or a portion of a Membership Interest
from a Member or an Assignee and not from the Company.


 


“Successor in Interest” means any (i) trustee,
custodian, receiver or other Person acting in any Bankruptcy or reorganization
proceeding with respect to, (ii) assignee for the benefit of the creditors
of, (iii) trustee or receiver, or current or former officer, director or
partner, or other fiduciary acting for or with respect to the dissolution,
liquidation or termination of, or (iv) other executor, administrator,
committee, legal representative or other successor or assign of, any Member,
whether by operation of law or otherwise.


 


“Tax Distribution” has the meaning set
forth in Section 4.4.


 


“Tax Matters Member”
has the meaning set forth in Section 8.4(d).


 


“Tax Receivable Agreement” means the
Tax Receivable Agreement, dated on or about the date hereof, among the Managing
Member and the Holdings Unitholders (as defined in the Exchange Agreement) from
time to time party thereto, as it may be amended or supplemented from time to
time.


 


“Transfer” means sell, assign, convey,
contribute, give, or otherwise transfer, whether directly or indirectly,
voluntarily or involuntarily, by operation of law or otherwise, or any act of
the foregoing, but excludes Pledge or any act of Pledging.  The terms “Transferee,” “Transferor,”
“Transferred,” “Transferring Member,” “Transferor Member”
and other forms of the word “Transfer” shall have the correlative
meanings.


 


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


 


“Units” means the Class A Units
and any other Class of limited liability company interests in the Company
denominated as “Units” that is established in accordance with this Agreement,
which shall constitute limited liability company interests in the Company as
provided in this Agreement and under the Act, entitling the holders thereof to
the relative rights, title and interests in the profits, losses, deductions and
credits of the Company at any particular time as set forth in this Agreement,
and any and all other benefits to which a holder thereof may be entitled as a
Member as provided in this Agreement, together with the obligations of such
Member to comply with all terms and provisions of this Agreement.


 


“Unrealized Gain” attributable to any
item of Company property means, as of any date of determination, the excess, if
any, of (a) the fair market value of such property as of such date (as
determined under Section 3.3(d)) over (b) the Carrying Value
of such property as of such date (prior to any adjustment to be made pursuant
to Section 3.3(d) as of such date).


 


9

















 


“Unrealized Loss” attributable to any
item of Company property means, as of any date of determination, the excess, if
any, of (a) the Carrying Value of such property as of such date (prior to
any adjustment to be made pursuant to Section 3.3(d) as of
such date) over (b) the fair market value of such property as of such date
(as determined under Section 3.3(d)).


 


“Unvested Units” has the meaning set
forth in Section 7.2.


 


Section 1.2.  Terms
Generally.  In this Agreement, unless
otherwise specified or where the context otherwise requires:


 


(a)           the
headings of particular provisions of this Agreement are inserted for
convenience only and will not be construed as a part of this Agreement or serve
as a limitation or expansion on the scope of any term or provision of this
Agreement;


 


(b)           words
importing any gender shall include other genders;


 


(c)           words
importing the singular only shall include the plural and vice versa;


 


(d)           the
words “include,” “includes” or “including” shall be deemed to be followed by
the words “without limitation”;


 


(e)           the
words “hereof,” “herein” and “herewith” and words of similar import shall,
unless otherwise stated, be construed to refer to this Agreement as a whole and
not to any particular provision of this Agreement;


 


(f)            references
to “Articles,” “Exhibits,” “Sections” or “Schedules” shall be to Articles,
Exhibits, Sections or Schedules of or to this Agreement;


 


(g)           references
to any Person include the successors and permitted assigns of such Person;


 


(h)           the
use of the words “or,” “either” and “any” shall not be exclusive;


 


(i)            wherever
a conflict exists between this Agreement and any other agreement among parties
hereto, this Agreement shall control but solely to the extent of such conflict;


 


(j)            references
to “$” or “dollars” means the lawful currency of the United States of America;


 


(k)           references
to any agreement, contract or schedule, unless otherwise stated, are to such
agreement, contract or schedule as amended, modified or supplemented from time
to time in accordance with the terms hereof and thereof; and


 


(l)            the
parties hereto have participated collectively in the negotiation and drafting
of this Agreement; accordingly, in the event an ambiguity or question of intent
or interpretation arises, it is the intention of the parties that this
Agreement shall be construed as if drafted collectively by the parties hereto,
and that no presumption or burden of proof shall arise 


 


10

















 


favoring or disfavoring any party hereto by virtue of the authorship of
any provisions of this Agreement.


 


ARTICLE II

GENERAL PROVISIONS


 


Section 2.1.  Formation.  The Company was formed as a Delaware limited
liability company on April 20, 2004 by the execution and filing of a
Certificate of Formation of the Company (the “Certificate”) by an
authorized person under and pursuant to the Act and the execution of the
Original Agreement.  The Members agree to
continue the Company as a limited liability company under the Act, upon the
terms and subject to the conditions set forth in this Agreement.  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 Managing Member may
select from time to time.  Subject to the
Act, the Managing Member may change the name of the Company (and amend this
Agreement to reflect such change) at any time and from time to time without the
consent of any other Person.  Prompt
notification of any such change shall be given to all Members.


 


Section 2.3.  Section Term.  The term of the Company commenced on the date
the Certificate was filed with the office of the Secretary of State of the
State of Delaware and shall continue in existence perpetually until termination
in accordance with the provisions of Section 7.3(d) and the
Act.


 


Section 2.4.  Purpose;
Powers.


 


(a)           General Powers. 
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 formed 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 formed under the laws of
the State of Delaware.


 


(b)           Company Action. 
Subject to the provisions of this Agreement and except as prohibited by
the Act, (i) the Company may, with the approval of the Managing Member,
enter into and perform any and all documents, agreements and instruments, all
without any further act, vote or approval of any Member and (ii) the
Managing Member may authorize any Person (including any Member or Officer) to
enter into and perform any document on behalf of the Company.


 


Section 2.5.  Existence and
Good Standing; Foreign Qualification. 
The Managing Member may take all action which may be necessary or
appropriate (i) for the continuation of the 


 


11

















 


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 Managing Member 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.  The
Managing Member may 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 any jurisdiction other than the State of Delaware.


 


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 Managing Member 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 Managing Member 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 Managing Member may designate from time to time, which
need not be in the State of Delaware, and the Company shall maintain records at
such place.  The Company may have such
other offices as the Managing Member may designate from time to time.


 


Section 2.7.  No State Law
Partnership.  (a) The Members
intend that the Company shall not be a partnership (including a limited
partnership) or joint venture, and that no Member or Officer shall be a partner
or joint venturer of any other Member or Officer by virtue of this Agreement,
for any purposes other than as is set forth in the last sentence of this Section 2.7(a),
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 or local income
tax purposes, and each Member, Assignee 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.


 


(b)           So long as the Company is treated as a partnership for
federal income tax purposes, to ensure that Units are not traded on an
established securities market within the meaning of Treasury Regulations Section 1.7704-1(b) or
readily tradable on a secondary market or the substantial equivalent thereof
within the meaning of Regulations Section 1.7704-1(c), notwithstanding
anything to the contrary contained herein,


 


(i)            the Company shall
not participate in the establishment of any such market or the inclusion of its
Units thereon, and


 


12














 


(ii)           the Company
shall not recognize any Transfer made on any such market by:


 


(A)          redeeming the
Transferor Member (in the case of a redemption or repurchase by the Company);
or


 


(B)           admitting the
Transferee as a Member or otherwise recognizing any rights of the Transferee,
such as a right of the Transferee to receive Company distributions (directly or
indirectly) or to acquire an interest in the capital or profits of the Company.


 


Section 2.8.  Admission.  The Managing Member is hereby admitted as a
member of the company upon its execution of a counterpart signature page to
this Agreement and each member of the Company immediately prior to the
effectiveness of this Agreement shall continue as a Member hereunder.


 


ARTICLE III

CAPITALIZATION


 


Section 3.1.  Units;
Initial Capitalization; Schedules.


 


(a)           Limited Liability Company
Interests.  Interests
in the Company shall be represented by Units, or such other Equity Securities
in the Company, or such other Company securities, in each case as the Managing
Member may establish in its sole discretion in accordance with the terms
hereof. As of the date hereof, the Units are comprised of one Class: “Class A
Units”.


 


(b)           Schedule of Units; Schedule
of Members.  The
aggregate number of outstanding Units and the aggregate amount of cash Capital
Contributions that have been made by the Members and the Fair Market Value of
any property other than cash contributed by the Members with respect to the
Units (including, if applicable, a description and the amount of any liability
assumed by the Company or to which contributed property is subject) shall be
set forth on a schedule maintained by the Company.  The Company shall also maintain a schedule
setting forth the name and address of each Member, the number of Units owned by
such Member and the aggregate Capital Contributions that have been made by such
Member with respect to such Member’s Units (such schedule, the “Schedule of
Members”).  The Schedule of Members
shall be the definitive record of ownership of each Unit or other Equity
Security in the Company and all relevant information with respect to each
Member.  The Company shall be entitled to
recognize the exclusive right of a Person registered on its records as the
owner of Units or other Equity Securities in the Company for all purposes and
shall not be bound to recognize any equitable or other claim to or interest in
Units or other Equity Securities in the Company on the part of any other
Person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the Act.


 


(c)           The Class A Units (as
defined in the Second Amended Agreement), Class B Units (as defined in the
Second Amended Agreement), Class C Units (as defined in the Second Amended
Agreement), Class D Units (as defined in the Second Amended Agreement), Class E
Units (as defined in the Second Amended Agreement), Class W Units (as
defined in the Second 


 


13

















 


Amended Agreement), Class X Units (as
defined the Second Amended Agreement), Class Y Units (as defined in the
Second Amended Agreement) and Class Z Units (as defined in the Second
Amended Agreement) issued and outstanding immediately prior to the
effectiveness of this Agreement are hereby converted into Class A Units
and each Member owns the number of Class A Units set forth opposite the
name of such Member in the Schedule of Members.


 


Section 3.2.  Authorization
and Issuance of Additional Units.


 


(a)           The Managing Member may
issue additional Class A Units and/or establish and issue other Classes of
Units, other Equity Securities in the Company or other Company securities from
time to time with such rights, obligations, powers, designations, preferences
and other terms, which may be different from, including senior to, any then existing
or future Classes of Units, other Equity Securities in the Company or other
Company securities, as the Managing Member shall determine from time to time,
in its sole discretion, without the vote or consent of any other Member or any
other Person, including (i) the right of such Units, other Equity
Securities in the Company or other Company securities to share in Net Income
and Net Loss or items thereof; (ii) the right of such Units, other Equity
Securities in the Company or other Company securities to share in Company
distributions; (iii) the rights of such Units, other Equity Securities or
other Company securities upon dissolution and liquidation of the Company; (iv) whether,
and the terms and conditions upon which, the Company may or shall be required to
redeem such Units, other Equity Securities in the Company or other Company
securities (including sinking fund provisions); (v) whether such Units,
other Equity Securities in the Company or other Company securities are issued
with the privilege of conversion or exchange and, if so, the terms and
conditions of such conversion or exchange; (vi) the terms and conditions
upon which such Units, other Equity Securities in the Company or other Company
securities will be issued, evidenced by certificates or assigned or
transferred; (vii)  the terms and conditions of the issuance of such
Units, other Equity Securities in the Company or other Company securities
(including, without limitation, the amount and form of consideration, if any,
to be received by the Company in respect thereof, the Managing Member being
expressly authorized, in its sole discretion, 
to cause the Company to issue Units, other Equity Securities in the
Company or other Company securities for less than Fair Market Value); and (viii) the
right, if any, of the holder of such Units, other Equity Securities in the
Company or other Company securities to vote on Company matters, including
matters relating to the relative designations, preferences, rights, powers and
duties of such Units, other Equity Securities in the Company or other Company
securities. The Managing Member, without the vote or consent of any other
Member or any other Person, is authorized (i) to issue any Units, other
Equity Securities in the Company or other Company securities of any such newly
established Class or any existing Class and (ii) to amend this
Agreement to reflect the creation of any such new Class, the issuance of Units,
other Equity Securities in the Company or other Company securities of such
Class, and the admission of any Person as a Member which has received Units or
other Equity Securities of any such Class, in accordance with Sections 3.2,
7.4 and 9.4.  Except as expressly
provided in this Agreement to the contrary, any reference to “Units” shall
include the Class A Units and any other Classes of Units that may be
established in accordance with this Agreement.


 


14

















 


Section 3.3.  Capital
Accounts.


 


(a)           The Managing Member shall
maintain for each Member owning Units a separate Capital Account with respect
to such Units in accordance with the rules of Treasury Regulations Section 1.704-1(b)(2)(iv).
Such Capital Account shall be increased by (i) the amount of all Capital
Contributions made to the Company with respect to such Units pursuant to this
Agreement and (ii) all items of Company income and gain (including,
without limitation, income and gain exempt from tax) computed in accordance
with Section 3.3(b) and allocated with respect to such Units
pursuant to Section 5.1, and decreased by (x) the amount of
cash or Net Agreed Value of all actual and deemed distributions of cash or
property made with respect to such Units pursuant to this Agreement and (y) all
items of Company deduction and loss computed in accordance with Section 3.3(b) and
allocated with respect to such Units pursuant to Section 5.1. The
foregoing provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Treasury
Regulations Section 1.704-1(b) and shall be interpreted and applied
in a manner consistent with such Treasury Regulations. In the event the
Managing Member shall determine that it is prudent to modify the manner in
which the Capital Accounts or any adjustments thereto (including, without
limitation, adjustments relating to liabilities which are secured by
contributed or distributed property or which are assumed by the Company or any
Members) are computed in order to comply with such Treasury Regulations, the
Managing Member, without the consent of any other Person, may make such
modification, notwithstanding the terms of this Agreement, provided that it is
not likely to have a material effect on the amounts distributed to any Person
pursuant to ARTICLE VII hereof upon the dissolution of the Company. The
Managing Member, without the consent of any other Person, also shall (i) make
any adjustments, notwithstanding the terms of this Agreement, that are
necessary or appropriate to maintain equality among the Capital Accounts of the
Members and the amount of capital reflected on the Company’s balance sheet, as
computed for book purposes, in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(q),
and (ii) make any appropriate modifications, notwithstanding the terms of
this Agreement, in the event unanticipated events might otherwise cause this
Agreement not to comply with Treasury Regulations Section 1.704-1(b).


 


(b)           For purposes of computing
the amount of any item of income, gain, loss or deduction, which is to be
allocated pursuant to ARTICLE V and is to be reflected in the Members’
Capital Accounts, the determination, recognition and classification of any such
item shall be the same as its determination, recognition and classification for
federal income tax purposes (including, without limitation, any method of
depreciation, cost recovery or amortization used for that purpose), provided,
that:


 


(i)            Solely for
purposes of this Section 3.3, the Company shall be treated as
owning directly its proportionate share (as determined by the Managing Member)
of all property owned by any partnership, limited liability company,
unincorporated business or other entity or arrangement that is classified as a
partnership for federal income tax purposes, of which the Company is, directly
or indirectly, a partner.


 


(ii)           Except as
otherwise provided in Treasury Regulations Section 1.704-1(b)(2)(iv)(m), the
computation of all items of income, gain, loss and deduction shall be made
without regard to any election under Section 754 of the Code which may be made
by the Company and, as to those items described in Section 705(a)(1)(B) or 


 


15

















 


705(a)(2)(B) of
the Code, without regard to the fact that such items are not includable in
gross income or are neither currently deductible nor capitalized for federal
income tax purposes. To the extent an adjustment to the adjusted tax basis of
any Company asset pursuant to Section 734(b) or 743(b) of the
Code is required, pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m),
to be taken into account in determining Capital Accounts, the amount of such
adjustment in the Capital Accounts shall be treated as an item of gain or loss.


 


(iii)          Any income,
gain or loss attributable to the taxable disposition of any Company property
shall be determined as if the adjusted basis of such property as of such date
of disposition were equal in amount to the Company’s Carrying Value with
respect to such property as of such date.


 


(iv)          In accordance
with the requirements of Section 704(b) of the Code, any deductions
for depreciation, cost recovery or amortization attributable to any Contributed
Property shall be determined in the manner described in Treasury Regulations Section 1.704-1(b)(2)(iv)(g)(3) as
if the adjusted basis of such property on the date it was acquired by the
Company were equal to the Agreed Value of such property.  Upon an adjustment pursuant to Section 3.3(d) to
the Carrying Value of any Adjusted Property that is subject to depreciation,
cost recovery or amortization, any further deductions for such depreciation,
cost recovery or amortization attributable to such property shall be determined
in the manner described in Treasury Regulations Sections 1.704-1(b)(2)(iv)(g)(3) and
1.704-3(a)(6)(i) as if the adjusted basis of such property were equal to
the Carrying Value of such property immediately following such adjustment;
provided, however, that, if the asset has a zero adjusted basis for federal
income tax purposes, depreciation, cost recovery or amortization deductions
shall be determined using any method that the Managing Member may adopt.


 


(c)           A transferee of Units shall
succeed to a pro rata portion of the Capital Account of the transferor relating
to the Units so transferred.


 


(i)            In accordance
with Treasury Regulations Section 1.704-1(b)(2)(iv)(f), on an issuance of
additional Units for cash or Contributed Property and the issuance of Units as
consideration for the provision of services, the Capital Account of all Members
and the Carrying Value of each Company property immediately prior to such
issuance shall be adjusted upward or downward to reflect any Unrealized Gain or
Unrealized Loss attributable to such Company property, as if such Unrealized
Gain or Unrealized Loss had been recognized on an actual sale of each such
property immediately prior to such issuance and had been allocated to the
Members at such time pursuant to Section 6.1 in the same manner as
a corresponding item of gain or loss actually recognized during such period
would have been allocated. In determining such Unrealized Gain or Unrealized
Loss, the aggregate cash amount and fair market value of all Company assets
(including, without limitation, cash or cash equivalents) immediately prior to
the issuance of additional Units shall be determined by the Managing Member
using such method of valuation as it may adopt; provided, however, that the
Managing Member, in arriving at such valuation, must take fully into account
the fair market value of the Units of all Members at such time. The Managing
Member shall allocate such 


 


16

















 


aggregate
value among the assets of the Company (in such manner as it determines) to
arrive at a fair market value for individual properties.


 


(ii)           In accordance
with Treasury Regulations Section 1.704-1(b)(2)(iv)(f), immediately prior
to any actual or deemed distribution to a Member of any Company property (other
than a distribution of cash that is not in redemption or retirement of a Unit),
the Capital Accounts of all Members and the Carrying Value of all Company
property shall be adjusted upward or downward to reflect any Unrealized Gain or
Unrealized Loss attributable to such Company property, as if such Unrealized
Gain or Unrealized Loss had been recognized in a sale of such property
immediately prior to such distribution for an amount equal to its fair market
value, and had been allocated to the Members, at such time, pursuant to Section 5.1
in the same manner as a corresponding item of gain or loss actually recognized
during such period would have been allocated. In determining such Unrealized
Gain or Unrealized Loss, the aggregate cash amount and fair market value of all
Company assets (including, without limitation, cash or cash equivalents)
immediately prior to a distribution shall (A) in the case of an actual
distribution that is not made pursuant to ARTICLE VII or in the case of
a deemed distribution, be determined and allocated in the same manner as that
provided in Section 3.3(d)(i) or (B) in the case of a
liquidating distribution pursuant to ARTICLE VII, be determined and
allocated by the Person winding up the Company pursuant to Section 7.3(b) using
such method of valuation as it may adopt.


 


(iii)          The Managing
Member may make the adjustments described in clause (i) above in the
manner set forth therein if the Managing Member determines that such
adjustments are necessary or useful to effectuate the intended economic
arrangement among the Members, including Members who received Units in
connection with the performance of services to or for the benefit of the
Company.


 


(d)           Notwithstanding anything
expressed or implied to the contrary in this Agreement, in the event the
Managing Member shall determine, in its sole and absolute discretion, that it
is prudent to modify the manner in which the Capital Accounts, or any debits or
credits thereto, are computed in order to effectuate the intended economic
sharing arrangement of the Members, the Managing Member may make such
modification, notwithstanding any other provision hereof, without the consent
of any other Person.


 


Section 3.4.  No Withdrawal.  No Person shall be entitled to withdraw any
part of such Person’s Capital Contributions or Capital Account or to receive
any distribution from the Company, except as expressly provided herein.


 


Section 3.5.  Loans From
Members.  Loans by Members to the
Company shall not be considered Capital Contributions.  If any Member shall loan funds to the
Company, then the making of such loans shall not result in any increase in the
Capital Account balance of such Member. 
The amount of any such loans shall be a debt of the Company to such
Member and shall be payable or collectible in accordance with the terms and
conditions upon which such loans are made.


 


17

















 


Section 3.6.  No Right of
Partition.  To the fullest extent
permitted by law, no Member shall have the right to seek or obtain partition by
court decree or operation of law of any property of the Company or any of its
Subsidiaries or the right to own or use particular or individual assets of the
Company or any of its Subsidiaries, or, except as expressly contemplated by
this Agreement, be entitled to distributions of specific assets of the Company
or any of its Subsidiaries.


 


Section 3.7.  Non-Certification
of Units; Legend; Units are Securities.


 


(a)           Units shall be issued in
non-certificated form; provided that the Managing Member may cause the Company
to issue certificates to a Member representing the Units held by such Member.


 


(b)           If the Managing Member
determines that the Company shall issue certificates representing Units to any
Member, the following provisions of this Section 3.7 shall apply:


 


(i)            The Company
shall issue one or more certificates in the name of such Person in such form as
it may approve, subject to Section 3.7(b)(ii) (a “Membership
Interest Certificate”), which shall evidence the ownership of the Units
represented thereby.  Each such
Membership Interest Certificate shall be denominated in terms of the number of
Units evidenced by such Membership Interest Certificate and shall be signed by
the Managing Member or an Officer on behalf of the Company.


 


(ii)           Each Membership
Interest Certificate shall bear a legend substantially in the following form:


 


This certificate evidences a Class A Unit representing an interest
in DynaVox Systems Holdings LLC and shall constitute a “security” within the
meaning of, and shall be governed by, (i) Article 8 of the Uniform
Commercial Code (including Section 8-102(a)(15) thereof) as in effect from
time to time in the State of Delaware, and (ii) the corresponding
provisions of the Uniform Commercial Code of any other applicable jurisdiction
that now or hereafter substantially includes the 1994 revisions to Article 8
thereof as adopted by the American Law Institute and the National Conference of
Commissioners on Uniform State Laws and approved by the American Bar
Association on February 14, 1995.


 


The interests in DynaVox Systems Holdings LLC represented by this
certificate are subject to restrictions on transfer set forth in the Third
Amended and Restated Limited Liability Company Agreement of DynaVox Systems
Holdings LLC, dated as of
           , 2010, by
and among each of the members from time to time party thereto, as the same may
be amended from time to time.


 


(iii)          Each Unit shall
constitute a “security” within the meaning of, and shall be governed by, (i) Article 8
of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as
in effect from time to time in the State of Delaware, and (ii) the
corresponding provisions of the Uniform Commercial Code of any other applicable
jurisdiction that now or hereafter substantially includes the 1994 revisions to
Article 8 


 


18

















 


thereof
as adopted by the American Law Institute and the National Conference of
Commissioners on Uniform State Laws and approved by the American Bar
Association on February 14, 1995.


 


(iv)          The Company
shall issue a new Membership Interest Certificate in place of any Membership
Interest Certificate previously issued if the holder of the Units represented
by such Membership Interest Certificate, as reflected on the books and records
of the Company:


 


(A)          makes proof by
affidavit, in form and substance satisfactory to the Company, that such
previously issued Membership Interest Certificate has been lost, stolen or
destroyed;


 


(B)           requests the
issuance of a new Membership Interest Certificate before the Company has notice
that such previously issued Membership Interest Certificate has been acquired
by a purchaser for value in good faith and without notice of an adverse claim;


 


(C)           if requested by
the Company, delivers to the Company such security, in form and substance
satisfactory to the Company, as the Managing Member may direct, to indemnify
the Company against any claim that may be made on account of the alleged loss,
destruction or theft of the previously issued Membership Interest Certificate;
and


 


(D)          satisfies any
other reasonable requirements imposed by the Company.


 


(v)           Upon a Member’s
Transfer in accordance with the provisions of this Agreement of any or all
Units represented by a Membership Interest Certificate, the Transferee of such
Units shall deliver such Membership Interest Certificate, duly endorsed for
Transfer by the Transferee, to the Company for cancellation, and the Company
shall thereupon issue a new Membership Interest Certificate to such Transferee
for the number of Units being Transferred and, if applicable, cause to be
issued to such Transferring Member a new Membership Interest Certificate for
the number of Units that were represented by the canceled Membership Interest
Certificate and that are not being Transferred.


 


ARTICLE IV

DISTRIBUTIONS


 


Section 4.1.  Distributions.  Distributions shall be made to the Members, after
Tax Distributions are made pursuant to Section 4.4 hereof, as and
when determined by the Managing Member, in accordance with their respective
Units and pro rata in respect of each Class of Units.


 


Section 4.2.  Unvested
Units.  To the extent that any
distribution, other than a Tax Distribution, is to be made to a Member in
respect of any Unvested Unit, such distribution shall be set aside for such
Member to be distributed to such Member at the time that such Unit ceases to be
an Unvested Unit.  To the extent that
such Unvested Unit shall be forfeited by or 


 


19

















 


repurchased from such Member
without having ceased to be an Unvested Unit, such distribution shall revert to
the Company.


 


Section 4.3.  Successors.  For purposes of determining the amount of
distributions under Section 4.1, each Member shall be treated as
having made the Capital Contributions and as having received the distributions
made to or received by its predecessors in respect of any of such Member’s
Units.


 


Section 4.4.  Tax
Distributions.  Subject to Section 4.7
and to any restrictions contained in any agreement to which the Company is
bound, no later than the tenth day following the end of each Quarterly
Estimated Tax Period of each calendar year, the Company shall, to the extent of
available cash and borrowings of the Company, make a distribution in cash
(each, a “Tax Distribution”), pro rata in accordance with the Percentage
Interests in effect with respect to such Quarterly Estimated Tax Period, in an
amount equal to the excess of (i) the product of (x) the taxable
income of the Company attributable to such Quarterly Estimated Tax Period and
all prior Quarterly Estimated Tax Periods in such calendar year, based upon (I) the
information returns filed by the Company, as amended or adjusted to date, and (II) estimated
amounts, in the case of periods for which the Company has not yet filed
information returns, multiplied by (y) the Assumed Tax Rate, over (ii) distributions
made by the Company pursuant to this Section 4.4 with respect to
such calendar year.  The Managing Member
shall use conventions similar to those adopted pursuant to Section 5.2(d) of
this Agreement to determine the Percentage Interests of the Members with
respect to a Quarterly Estimated Tax Period. 
For the avoidance of doubt, Tax Distributions shall be made only with
respect to taxable income earned by the Company (as opposed to income
recognized by any Member with respect to the vesting of such Member’s
Units).  For purposes of clause (i)(x) above,
the taxable income of the Company shall be determined by disregarding any
adjustment to the taxable income of any Member that arises under Section 743(b) of
the Code and is attributable to the acquisition by such Member of an interest
in the Company in a transaction described in Section 743(a) of the
Code.


 


Section 4.5.  Security
Interest and Right of Set Off; Indemnification.  If the Company is required by law to make any
payment to a Governmental Entity that is specifically attributable to a Member
or a Member’s status as such (including federal withholding taxes, state or
local personal property taxes and state or local unincorporated business
taxes), then such Member shall indemnify the Company or its successor in
interest in full for the entire amount paid (including interest, penalties and
reasonable related expenses).  A Member’s
obligation to indemnify the Company or its successor in interest under this Section 4.5
shall survive the dissolution, winding up and termination of the Company.  The Company and its successor in interest may
pursue and enforce all rights and remedies it may have against each Member
under this Section 4.5, including instituting a lawsuit to collect
such indemnification, with interest calculated at a rate equal to 10 percent
(but not in excess of the highest rate per annum permitted by law).  As security for any such indemnification
obligation or any 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 in the Company,
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 liability or obligation.  Whenever the Company is to pay any sum to any
Member or any Affiliate or 


 


20

















 


related Person thereof
pursuant to the terms of this Agreement, any amounts that such Member or such
Affiliate or related Person owes to the Company, whether pursuant to this Section 4.5
or under any promissory note issued to the Company as partial payment for any
Units of the Company may be deducted from that sum before payment; provided,
however, that no deduction pursuant to this sentence shall be made with respect
to any Tax Distribution except on account of any amounts owed by such Member or
such Affiliate or related Person which (i) are due and owing pursuant to
the indemnification obligation provided for in this Section 4.5 or (ii) are
past due or as to which the obligor is otherwise in default.


 


Section 4.6.  Certain
Distributions.  For purposes of this ARTICLE
IV, a distribution to a Member of property (other than cash) shall be
treated as a Tax Distribution pursuant to Section 4.4 (rather than
as, for example, a distribution pursuant to Section 4.1) in an
amount equal to the hypothetical amount of tax that the Member would pay, at
the Assumed Tax Rate, if (i) such property were not treated as a
distribution of money pursuant to Section 731(c)(2) of the Code (to
the extent that Section 731(c)(2) otherwise applies) and (ii) the
Member sold the property immediately after receiving such distribution.


 


Section 4.7.  Limitation.  Notwithstanding any other provision of this
Agreement, the Company, and the Managing Member on behalf of the Company, shall
not be required to make a distribution if such distribution to any Member or
Assignee would violate the Act or other applicable law.


 


ARTICLE V

ALLOCATIONS


 


Section 5.1.  Allocations
for Capital Account Purposes.  (a) Except
as otherwise provided in this Agreement, Net Income and Net Losses (and, to the
extent necessary, individual items of income, gain or loss or deduction of the
Company) shall be allocated in a manner such that the Capital Account of each
Member after giving effect to the Special Allocations set forth in Section 5.1(b) is,
as nearly as possible, equal (proportionately) to (i) the distributions
that would be made pursuant to Section 7.3 if the Company were dissolved,
its affairs wound up and its assets sold for cash equal to their Carrying
Value, all Company liabilities were satisfied (limited with respect to each
non-recourse liability to the Carrying Value of the assets securing such
liability) and the net assets of the Company were distributed to the Members
pursuant to this Agreement, minus (ii) such Member’s share of
Company Minimum Gain and Member Nonrecourse Debt Minimum Gain, computed
immediately prior to the hypothetical sale of assets.


 


(b)           Special Allocations.  Notwithstanding any other provision of this Section 5.1,
the following special allocations shall be made for such taxable period:


 


(i)            Company Minimum
Gain Chargeback. 
Notwithstanding any other provision of this Section 5.1, if
there is a net decrease in Company Minimum Gain during any Company taxable
period, each Member shall be allocated items of Company income and gain for
such period (and, if necessary, subsequent periods) in the manner and amounts
provided in Treasury Regulations Sections 1.704-2(f)(6), 1.704-2(g)(2) and
1.704-2(j)(2)(i), or any successor provision. 
For purposes of this Section 5.1(b), each 


 


21

















 


Member’s
Adjusted Capital Account balance shall be determined, and the allocation of
income and gain required hereunder shall be effected, prior to the application
of any other allocations pursuant to this Section 5.1(b) with
respect to such taxable period (other than an allocation pursuant to Section 5.1(b)(iii) and
Section 5.1(b)(vi)).  This Section 5.1(b)(i) is
intended to comply with the Company Minimum Gain chargeback requirement in
Treasury Regulations Section 1.704-2(f) and shall be interpreted
consistently therewith.


 


(ii)           Chargeback of
Member Nonrecourse Debt Minimum Gain.  Notwithstanding the other provisions of this Section 5.1
(other than Section 5.1(b)(i)), except as provided in Treasury
Regulations Section 1.704-2(i)(4), if there is a net decrease in Member
Nonrecourse Debt Minimum Gain during any Company taxable period, any Member
with a share of Member Nonrecourse Debt Minimum Gain at the beginning of such
taxable period shall be allocated items of Company income and gain for such
period (and, if necessary, subsequent periods) in the manner and amounts
provided in Treasury Regulations Sections 1.704-2(i)(4) and
1.704-2(j)(2)(ii), or any successor provisions. For purposes of this Section 5.1(b),
each Member’s Adjusted Capital Account balance shall be determined, and the allocation
of income and gain required hereunder shall be effected, prior to the
application of any other allocations pursuant to this Section 5.1(b),
other than Section 5.1(b)(i) and other than an allocation
pursuant to Section 5.1(b)(i)(v) and (b)(i)(vi), with
respect to such taxable period.  This Section 5.1(b)(ii) is
intended to comply with the chargeback of items of income and gain requirement
in Treasury Regulations Section 1.704-2(i)(4) and shall be
interpreted consistently therewith.


 


(iii)          Qualified Income
Offset.  In the event any Member
unexpectedly receives any adjustments, allocations or distributions described
in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5), or (6), items of
Company income and gain shall be specially allocated to such Member in an
amount and manner sufficient to eliminate, to the extent required by the
Treasury Regulations promulgated under Section 704(b) of the Code,
the deficit balance, if any, in its Adjusted Capital Account created by such
adjustments, allocations or distributions as quickly as possible, unless such
deficit balance is otherwise eliminated pursuant to Section 5.1(b)(i) or
(ii). This Section 5.1(b)(iii) is intended to qualify
and be construed as a “qualified income offset” within the meaning of Treasury
Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted
consistently therewith.


 


(iv)          Gross Income
Allocations.  In the
event any Member has a deficit balance in its Capital Account at the end of any
Company taxable period in excess of the sum of (A) the amount such Member
is required to restore pursuant to the provisions of this Agreement and (B) the
amount such Member is deemed obligated to restore pursuant to Treasury
Regulations Sections 1.704-2(g) and 1.704-2(i)(5), such Member shall be specially
allocated items of Company gross income and gain in the amount of such excess
as quickly as possible; provided, that an allocation pursuant to this Section 5.1(b)(iv) shall
be made only if and to the extent that such Member would have a deficit balance
in its Capital Account as adjusted after all other allocations provided for in
this


 


22














 


Section 5.1 have been
tentatively made as if this Section 5.1(b)(iv) were not in
this Agreement.


 


(v)           Nonrecourse
Deductions.  Nonrecourse
Deductions for any taxable period shall be allocated to the Members in
accordance with their respective Percentage Interests.  If the Managing Member determines that the
Company’s Nonrecourse Deductions should be allocated in a different ratio to
satisfy the safe harbor requirements of the Treasury Regulations promulgated
under Section 704(b) of the Code, the Managing Member is authorized,
upon notice to the other Members, to revise the prescribed ratio to the
numerically closest ratio that does satisfy such requirements.


 


(vi)          Member
Nonrecourse Deductions. 
Member Nonrecourse Deductions for any taxable period shall be allocated
100% to the Member that bears the “Economic Risk of Loss” (as defined in the
Treasury Regulations) with respect to the Member Nonrecourse Debt to which such
Member Nonrecourse Deductions are attributable in accordance with Treasury
Regulations Section 1.704-2(i).  If
more than one Member bears the Economic Risk of Loss with respect to a Member
Nonrecourse Debt, such Member Nonrecourse Deductions attributable thereto shall
be allocated between or among such Members in accordance with the ratios in which
they share such Economic Risk of Loss.


 


(vii)         Nonrecourse
Liabilities.  Nonrecourse
Liabilities of the Company described in Treasury Regulations Section 1.752-3(a)(3) shall
be allocated among the Members in the manner chosen by the Managing Member and
consistent with such Section of the Treasury Regulations.


 


(viii)        Code Section 754
Adjustments.  To the
extent an adjustment to the adjusted tax basis of any Company asset pursuant to
Section 734(b) or 743(b) of the Code is required, pursuant to
Treasury Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into
account in determining Capital Accounts, the amount of such adjustment to the
Capital Accounts shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases such
basis), and such item of gain or loss shall be specially allocated to the
Members in a manner consistent with the manner in which their Capital Accounts
are required to be adjusted pursuant to such Section of the Treasury Regulations.


 


(ix)           Curative
Allocation.


 


(1)           The Required
Allocations are intended to comply with certain requirements of the Treasury
Regulations. It is the intent of the Members that, to the extent possible, all
Required Allocations shall be offset either with other Required Allocations or
with special allocations of other items of Company income, gain, loss or
deduction pursuant to this Section 5.1(b)(ix)(1). Therefore,
notwithstanding any other provision of this ARTICLE V (other than the
Required Allocations), the Managing Member shall make such offsetting special
allocations of Company income, gain, loss or deduction in whatever manner it
determines appropriate so that, after such offsetting allocations are made,
each Member’s 


 


23

















 


Capital
Account balance is, to the extent possible, equal to the Capital Account
balance such Member would have had if the Required Allocations were not part of
this Agreement and all Company items were allocated pursuant to the economic
agreement among the Members.


 


(2)           The Managing
Member shall, with respect to each taxable period, (1) apply the
provisions of Section 5.1(b)(ix)(1) in whatever order is most
likely to minimize the economic distortions that might otherwise result from
the Required Allocations, and (2) divide all allocations pursuant to Section 5.1(b)(ix)(1) among
the Members in a manner that is likely to minimize such economic distortions.


 


(x)            Deficit Capital
Accounts.  No Member
shall be required to pay to the Company, to any other Member or to any third
party any deficit balance which may exist from time to time in the Member’s
Capital Account.


 


Section 5.2.  Allocations
for Tax Purposes.


 


(a)           The income, gains, losses
and deductions of the Company shall be allocated for federal, state and local
income tax purposes among the Members in accordance with the allocation of such
income, gains, losses and deductions among the Members for purposes of
computing their Capital Accounts; except that if any such allocation is not
permitted by the Code or other applicable law, then the Company’s subsequent
income, gains, losses and deductions for tax purposes shall be allocated among
the Members so as to reflect as nearly as possible the allocation set forth
herein in computing their Capital Accounts.


 


(b)           In an attempt to eliminate
Book-Tax Disparities attributable to a Contributed Property or an Adjusted
Property, items of income, gain, loss, depreciation, amortization and cost
recovery deductions shall be allocated for federal income tax purposes among
the Members as follows:


 


(i)            (A)  In
the case of a Contributed Property, such items attributable thereto shall be
allocated among the Members in the manner provided under Section 704(c) of
the Code that takes into account the variation between the Agreed Value of such
property and its adjusted basis at the time of contribution; and (B) any
item of Residual Gain or Residual Loss attributable to a Contributed Property
shall be allocated among the Members in the same manner as its correlative item
of “book” gain or loss is allocated pursuant to Section 5.1.


 


(ii)           (A)  In
the case of an Adjusted Property, such items shall (1) first, be allocated
among the Members in a manner consistent with the principles of Section 704(c) of
the Code to take into account the Unrealized Gain or Unrealized Loss
attributable to such property and the allocations thereof pursuant to Section 3.3(d)(i) or
Section 3.3(d)(ii), and (2) second, in the event such property
was originally a Contributed Property, be allocated among the Members in a
manner consistent with Section 5.2(b)(i)(A); and (B) any item
of Residual Gain or Residual Loss attributable to an 


 


24

















 


Adjusted
Property shall be allocated among the Members in the same manner as its
correlative item of “book” gain or loss is allocated pursuant to Section 5.1.


 


(iii)          In order to
eliminate Book-Tax Disparities, the Managing Member may cause the Company to
use any method described in Treasury Regulations Section 1.704-3.


 


(c)           For the proper
administration of the Company and for the preservation of uniformity of the
Units (or any Class or Classes thereof), the Managing Member shall (i) adopt
such conventions as it deems appropriate in determining the amount of depreciation,
amortization and cost recovery deductions; (ii) make special allocations
for federal income tax purposes of income (including, without limitation, gross
income) or deductions; (iii) without the consent of any other Person being
required, amend the provisions of this Agreement as appropriate (x) to
reflect the proposal or promulgation of Treasury Regulations under Section 704(b) or
Section 704(c) of the Code or (y) otherwise to preserve or
achieve uniformity of the Units (or any Class or Classes thereof); and (iv) adopt
and employ such methods for (A) the maintenance of capital accounts for
book and tax purposes, (B) the determination and allocation of adjustments
under Sections 704(c), 734 and 743 of the Code, (C) the determination and
allocation of taxable income, tax loss and items thereof under this Agreement
and pursuant to the Code, (D) the determination of the identities and tax
classification of Members, (E) the provision of tax information and
reports to the Members, (F) the adoption of reasonable conventions and
methods for the valuation of assets and the determination of tax basis, (G) the
allocation of asset values and tax basis, (H) the adoption and maintenance
of accounting methods, (I) the recognition of the transfer of Units and (J) tax
compliance and other tax-related requirements, including without limitation,
the use of computer software, as it determines in its sole discretion are
necessary and appropriate to execute the provisions of this Agreement and to
comply with federal, state and local tax law, and to achieve uniformity of
Units within a Class. The Managing Member may adopt such conventions, make such
allocations and make such amendments to this Agreement as provided in this Section 5.2(c) only
if such conventions, allocations or amendments would not have a material
adverse effect on the Members, the holders of any Class or Classes of
Units issued and outstanding or the Company, and if such allocations are
consistent with the principles of Section 704 of the Code.


 


(d)           For purposes of determining
the items of Company income, gain, loss, deduction, or credit allocable to any
Member with respect to any period, such items shall be determined on a daily,
monthly, or other basis, as determined by the Managing Member using any permissible
method under Code Section 706 and the Treasury Regulations promulgated
thereunder.


 


(e)           Tax credits, tax credit
recapture and any items related thereto shall be allocated to the Members
according to their interests in such items as reasonably determined by the
Managing Member taking into account the principles of Treasury Regulations
Sections 1.704-1(b)(4)(ii) and 1.704-1T(b)(4)(xi).


 


(f)            Allocations pursuant to this
Section 5.2 are solely for the purposes of federal, state and local
taxes and shall not affect, or in any way be taken into account in 


 


25

















 


computing, any Member’s Capital Account or
share of Income, Loss, distributions or other Company items pursuant to any
provision of this Agreement.


 


Section 5.3.  Members’ Tax
Reporting.  The Members acknowledge
and are aware of the income tax consequences of the allocations made pursuant
to this ARTICLE V and, except as may otherwise be required by applicable
law or regulatory requirements, hereby agree to be bound by the provisions of
this ARTICLE V in reporting their shares of Company income, gain, loss,
deduction and credit for federal, state and local income tax purposes.


 


Section 5.4.  Certain Costs
and Expenses.  The Company shall (i) pay,
or cause to be paid, all costs, fees, operating expenses and other expenses of
the Company (including the costs, fees and expenses of attorneys, accountants
or other professionals and the compensation of all personnel providing services
to the Company) incurred in pursuing and conducting, or otherwise related to,
the activities of the Company, and (ii) in the sole discretion of the
Managing Member, bear and/or reimburse the Managing Member for any costs, fees
or expenses incurred by it in connection with serving as the Managing
Member.  To the extent that the Managing
Member determines in its sole discretion that such expenses are related to the
business and affairs of the Managing Member that are conducted through the
Company and/or its subsidiaries (including expenses that relate to the business
and affairs of the Company and/or its subsidiaries and that also relate to
other activities of the Managing Member), the Managing Member may cause the
Company to pay or bear all expenses of the Managing Member, including, without
suggesting any limitation of any kind, costs of securities offerings not borne
directly by Members, board of directors compensation and meeting costs, cost of
periodic reports to its stockholders, litigation costs and damages arising from
litigation, accounting and legal costs and franchise taxes, provided that the
Company shall not pay or bear any income tax obligations of the Managing
Member.


 


ARTICLE VI

MANAGEMENT


 


Section 6.1.  Managing
Member; Delegation of Authority and Duties.


 


(a)           Authority of Managing Member.  The business, property and affairs of the
Company shall be managed under the sole, absolute and exclusive direction of
the Managing Member, which may from time to time delegate authority to Officers
or to others to act on behalf of the Company. 
Without limiting the foregoing provisions of this Section 6.1(a),
the Managing Member shall have the sole power to manage or cause the management
of the Company, including, without limitation, the power and authority to
effectuate the sale, lease, transfer, exchange or other disposition of any, all
or substantially all of the assets of the Company (including, but not limited
to, the exercise or grant of any conversion, option, privilege or subscription
right or any other right available in connection with any assets at any time
held by the Company) or the merger, consolidation, reorganization or other
combination of the Company with or into another entity.


 


(b)           Other Members.  No Member who is not also a Managing Member,
in his or her or its capacity as such, shall participate in or have any control
over the business of the Company. Except as expressly provided herein, the
Units, other Equity Securities in the 


 


26

















 


Company, or the fact of a Member’s admission
as a member of the Company do not confer any rights upon the Members to
participate in the management of the affairs of the Company.  Except as expressly provided herein, no
Member who is not also a Managing Member shall have any right to vote on any
matter involving the Company, including with respect to any merger,
consolidation, combination or conversion of the Company, or any other matter
that a Member might otherwise have the ability to vote or consent with respect
to under the Act, at law, in equity or otherwise.  The conduct, control and management of the
Company shall be vested exclusively in the Managing Member. In all matters
relating to or arising out of the conduct of the operation of the Company, the
decision of the Managing Member shall be the decision of the Company. Except as
required law, or expressly provided in Section 6.1(e) or by
separate agreement with the Company, no Member who is not also a Managing
Member (and acting in such capacity) shall take any part in the management or
control of the operation or business of the Company in its capacity as a
Member, nor shall any Member who is not also a Managing Member (and acting in
such capacity) have any right, authority or power to act for or on behalf of or
bind the Company in his or her or its capacity as a Member in any respect or
assume any obligation or responsibility of the Company or of any other Member.


 


(c)           Delegation by Managing
Member.  The Company may employ one or
more Members from time to time, and such Members, in their capacity as
employees or agents of the Company (and not, for clarity, in their capacity as
Members of the Company), may take part in the control and management of the
business of the Company to the extent such authority and power to act for or on
behalf of the Company has been delegated to them by the Managing Member.  To the fullest extent permitted by law, the
Managing Member shall have the power and authority to delegate to one or more
other Persons the Managing Member’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 or the Company (including Officers), and to delegate by a
management agreement or another agreement with, or otherwise to, other Persons.  The Managing Member may authorize any Person
(including any Member or Officer) to enter into and perform any document on
behalf of the Company.


 


Section 6.2.  Officers.


 


(a)           Designation and Appointment.  The Managing Member may, from time to time,
employ and retain Persons as may be necessary or appropriate for the conduct of
the Company’s business, including employees, agents and other Persons (any of
whom may be a Member) who may be designated as Officers of the Company, with
such titles as and to the extent authorized by the Managing Member.  Any number of offices may be held by the same
Person.  In its discretion, the Managing
Member 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 Managing Member may from time to time delegate to them.  The Managing Member 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 Managing Member. 
Designation of an Officer shall not of itself create any employment or,
except as provided in Section 6.4, contractual rights.


 


27

















 


(b)           Resignation and 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 is
specified, at the time of its receipt by the Managing Member.  The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the
resignation.  All employees, agents and
Officers shall be subject to the supervision and direction of the Managing
Member and may be removed, with or without cause, from such office by the
Managing Member and the authority, duties or responsibilities of any employee,
agent or Officer of the Company may be suspended by or altered the Managing
Member from time to time, in each case in the sole discretion of the Managing
Member.


 


(c)           Duties of Officers.  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 officers of a Delaware corporation pursuant to the laws of the
state of Delaware.


 


Section 6.3.  Liability of
Members.


 


(a)           No Personal Liability.  Except as otherwise required by applicable
law and as expressly set forth in this Agreement, no Member shall have any
personal liability whatsoever in such Person’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 Company.  Except as otherwise required by the Act, each
Member shall be liable only to make such Member’s Capital Contribution to the
Company, if applicable, and the other payments provided for expressly herein.


 


(b)           Return of Distributions.  In accordance with the Act and the laws of
the State of Delaware, a Member 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 IV 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 Section 18-502(b) of the Act, and,
to the fullest extent permitted by law, any Member receiving any such money or
property shall not be required to return any such money or property to the
Company or any other Person.  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 other Member.


 


(c)           No Duties.
Notwithstanding any other provision of this Agreement or any duty otherwise
existing at law, in equity or otherwise, the parties hereby agree that the
Members (including without limitation, the Managing Member), shall, to the
maximum extent permitted by law, including Section 18-1101(c) of the
Act, owe no duties (including fiduciary duties) to the Company, the other
Members or any other Person who is a party to or otherwise bound by this
Agreement; provided, however, that nothing contained in this Section 6.3(c) shall
eliminate the implied contractual covenant of good faith and fair dealing.  To the extent that, at law or in equity, any
Member (including without limitation, the Managing Member) has duties
(including fiduciary duties) and liabilities relating thereto to the Company,
to another Member or to another Person who is a party to or otherwise bound by
this Agreement, the Members (including without 


 


28

















 


limitation, the Managing Member) acting under
this Agreement will not be liable to the Company,  to any such other Member or to any such other
Person who is a party to or otherwise bound by this Agreement, for their good
faith reliance on the provisions of this Agreement.  The provisions of this Agreement, to the
extent that they restrict or eliminate the duties and liabilities relating
thereto of any Member (including without limitation, the Managing Member)
otherwise existing at law, in equity or otherwise, are agreed by the parties
hereto to replace to that extent such other duties and liabilities of the
Members (including without limitation, the Managing Member) relating
thereto.  The Managing Member may consult
with legal counsel, accountants and financial or other advisors and any act or
omission suffered or taken by the Managing Member on behalf of the Company or
in furtherance of the interests of the Company in good faith in reliance upon
and in accordance with the advice of such counsel, accountants or financial or
other advisors will be full justification for any such act or omission, and the
Managing Member will be fully protected in so acting or omitting to act so long
as such counsel or accountants or financial or other advisors were selected
with reasonable care.  Notwithstanding
any other provision of this Agreement or otherwise applicable provision of law
or equity, whenever in this Agreement the Managing Member is permitted or
required to make a decision (i) in its “sole discretion” or “discretion”
or under a grant of similar authority or latitude, the Managing Member shall be
entitled to consider only such interests and factors as it desires, including
its own interests, and shall, to the fullest extent permitted by applicable
law, have no duty or obligation to give any consideration to any interest of or
factors affecting the Company or the other Members, or (ii) in its “good
faith” or under another expressed standard, the Managing Member shall act under
such express standard and shall not be subject to any other or different
standards.


 


Section 6.4.  Indemnification
by the Company.  Subject to the
limitations and conditions provided in this Section 6.4, 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 (each, 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, she or it, or a
Person of which he, she or it is the legal representative, is or was a Member
or an Officer (each, an “Indemnified Person”), in each case, 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 such law permitted the Company to provide
prior to such amendment) against all judgments, penalties (including excise and
similar taxes and punitive damages), fines, settlements and reasonable expenses
(including reasonable attorneys’ fees and expenses) actually incurred by such
Indemnified Person in connection with such Proceeding, appeal, inquiry or
investigation, if such Indemnified Person acted in Good Faith.  Reasonable expenses incurred by an
Indemnified Person who was, is or is threatened to be made a named defendant or
respondent in a Proceeding shall be paid by the Company in advance of the final
disposition of the Proceeding upon receipt of an undertaking by or on behalf of
such Person to repay such amount if it shall ultimately be determined that he,
she or it is not entitled to be indemnified by the Company.  Indemnification under this Section 6.4
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 6.4
shall be deemed contract rights, and no amendment, modification or repeal of
this Section 6.4 shall have the effect of limiting or denying any
such rights with respect to actions taken or 


 


29

















 


Proceedings,
appeals, inquiries or investigations arising prior to any amendment,
modification or repeal.  It is expressly
acknowledged that the indemnification provided in this Section 6.4
could involve indemnification for negligence or under theories of strict
liability. Notwithstanding the foregoing, no Indemnified Person shall be
entitled to any indemnity or advancement of expenses in connection with any
Proceeding brought (i) by such Indemnified Person against the Company
(other than to enforce the rights of such Indemnified Person pursuant to this Section 6.4),
any Member or any Officer, or (ii) by or in the right of the Company,
without the prior written consent of the Managing Member.


 


Section 6.5.  Investment
Representations of Members.  Each
Member hereby represents, warrants and acknowledges to the Company that: (a) 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 is making an informed investment decision with respect thereto; (b) 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; and (c) the execution, delivery and performance
of this Agreement have been duly authorized by such Member.


 


ARTICLE VII

WITHDRAWAL; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS;

ADMISSION OF NEW MEMBERS


 


Section 7.1.  Member
Withdrawal.  No Member shall have the
power or right to withdraw or otherwise resign or be expelled from the Company
prior to the dissolution and winding up of the Company except pursuant to a
Transfer permitted under this Agreement.


 


Section 7.2.  Continuation
of Vesting.  Notwithstanding anything
in this Agreement to the contrary: (i) the Class A Units held by any
Member as a result of the conversion of Class B Units (as defined in the
Second Amended Agreement), Class E Units (as defined in the Second Amended
Agreement) or Class W Units (as defined in the Second Amended Agreement)
which as of the date hereof are subject to any vesting, forfeiture, repurchase
or similar provisions pursuant to the Second Amended Agreement or in any
applicable management unit subscription agreement or other agreement pursuant
to which such Unvested Units were issued (in each case, “Unvested Units”)
shall continue to be subject to such vesting, forfeiture, repurchase or similar
provisions; and (ii) no Member may Transfer any Unvested Units, provided
that a Member may Transfer Unvested Units pursuant to and in accordance with
the Exchange Agreement if the Member acknowledges and agrees in writing, in a
form reasonably satisfactory to the Managing Member, that any securities received
in exchange therefor shall continue to be subject to the vesting, forfeiture,
repurchase or similar provisions to which such Unvested Units are then
subject.  A Unit shall cease to be an
Unvested Unit at such time as such Unit ceases to be subject to such vesting,
forfeiture, repurchase or similar provisions.


 


Section 7.3.  Dissolution.


 


(a)           Events.  The Company shall be dissolved and its
affairs shall be wound up on the first to occur of (i) the determination
of the Managing Member, (ii) the entry of a decree 


 


30

















 


of judicial dissolution of the Company under Section 18-802
of the Act or (iii) the termination of the legal existence of the last
remaining Member or the occurrence of any other event which terminates the
continued membership of the last remaining Member in the Company unless the
Company is continued without dissolution in a manner permitted by the Act.  In the event of a dissolution pursuant to
clause (i) of the immediately preceding sentence, the relative economic
rights of each Class of Units immediately prior to such dissolution shall
be preserved to the greatest extent practicable with respect to distributions
made to Members pursuant to Section 7.3(c) below in connection
with the winding up of the Company, taking into consideration tax and other
legal constraints that may adversely affect one or more parties hereto and
subject to compliance with applicable laws and regulations, unless, with
respect to any Class of Units, holders of not less than 90% of the Units
of such Class consent in writing to a treatment other than as described
above.


 


(b)           Actions Upon Dissolution.  When the Company is dissolved, the business
and property of the Company shall be wound up and liquidated by the Managing
Member or, in the event of the unavailability of the Managing Member or if the
Managing Member shall so determine, such Member or other liquidating trustee as
shall be named by the Managing Member.


 


(c)           Priority.  A reasonable time shall be allowed for the
orderly winding up of the business and affairs of the Company and the
liquidation of its assets pursuant to Section 7.3 to minimize any
losses otherwise attendant upon such winding up.  Upon dissolution of the Company, the assets
of the Company shall be applied in the following manner and order of priority: (i) to
creditors, including Members who are creditors, to the extent otherwise
permitted by law,  in satisfaction
of liabilities of the Company (including all contingent, conditional  or unmatured claims), whether by payment or
the making of reasonable provision for payment thereof; and (ii) the
balance shall be distributed to the Members in accordance with their respective
Units and pro rata in respect of each Class of Units.


 


(d)           Cancellation of Certificate.  The Company shall terminate when (i) all
of the assets of the Company, after payment of or due provision for all debts
liabilities and obligations of the Company, shall have been distributed to the
Members in the manner provided for in this Agreement and (ii) the
Certificate shall have been canceled in the manner required by the Act.


 


(e)           Return of Capital.  The liquidators of the Company shall not be
personally liable for the return of Capital Contributions or any portion
thereof to the Members (it being understood that any such return shall be made
solely from Company assets).


 


(f)            Hart Scott Rodino.  Notwithstanding any other provision in this
Agreement, in the event the Hart Scott Rodino Antitrust Improvements Act of
1976, as amended (the “HSR Act”), is applicable to any Member by reason
of the fact that any assets of the Company will be distributed to such Member
in connection with the dissolution of the Company, the distribution of any
assets of the Company shall not be consummated until such time as the
applicable waiting periods (and extensions thereof) under the HSR Act have
expired or otherwise been terminated with respect to each such Member.


 


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Section 7.4.  Transfer by
Members.  No Member may Transfer or
Pledge all or any portion of its Units or other interests or rights in the
Company except with the written consent of the Managing Member in its sole
discretion, provided, however, that, subject to the provisions of Section 7.5(c)
(other than the provisions of Section 7.5(c)(v) to the extent that such
provisions relate to the delivery of legal and/or tax opinions), without the
consent of the Managing Member, a Member may, at any time, Transfer any of such
Member’s Units pursuant to the Exchange Agreement.  In addition, to the extent that the Managing
Member determines in good faith that a proposed Transfer would not violate Section 7.5(c) below,
then the Managing Member will not unreasonably withhold its consent to a
Transfer (i) in the case of any Member who is a natural Person, (A) upon
the death of such Member pursuant to applicable laws of descent and
distribution or (B) to or among such Person’s spouse and descendants
(whether natural or adopted) and any trust, partnership, limited liability
company or similar vehicle established solely for the benefit of (or the sole
members or partners of which are) such Person, such Person’s spouse and/or
descendants, (ii) to and among wholly owned Subsidiaries of any Member,
provided, however, that if any such wholly owned Subsidiary will subsequently
cease to be wholly owned by such Member, the Units so Transferred must first be
Transferred back to the original Member or another permitted Transferee of such
original Member or (iii) by any Member who holds at least 10% of the Class A
Units and who intends, in connection with such proposed Transfer, to Transfer
all or substantially all of the Class A Units then held by such Member to
any Person or group of Persons acting together that would constitute a “group”
for purposes of Section 13(d) of the Securities and Exchange Act of
1934 or any successor provisions thereto. For the avoidance of doubt, it shall
not be unreasonable for the Managing Member to impose reasonable restrictions
on the number of Persons to whom a Member may make Transfers pursuant to
clauses (i) and (ii) of the preceding sentence, which restrictions
need not be uniform among holders of interests in the Company.  Any purported Transfer or Pledge of all or a
portion of a Member’s Units or other interests in the Company not complying
with this Section 7.4 shall be void and shall not create any
obligation on the part of the Company or the other Members to recognize that
Transfer or Pledge or to deal with the Person to which the Transfer or Pledge
purportedly was made.


 


Section 7.5.  Admission or
Substitution of New Members.


 


(a)           Admission.  Without the consent of any other Person, the
Managing Member shall have the right to admit as a Substituted 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
Substituted Member or an Additional Member, the Managing Member shall forthwith
(i) amend the Schedule of Members to reflect the name and address of such
Substituted Member or Additional Member and to eliminate or modify, as
applicable, the name and address of the Transferring Member with regard to the
Transferred Units and (ii) cause any necessary papers to be filed and
recorded and notice to be given wherever and to the extent required showing the
substitution of a Transferee as a Substituted Member in place of the
Transferring Member, or the admission of an Additional Member, in each case, at
the expense, including payment of any professional and filing fees incurred, of
such Substituted Member or Additional Member; provided that such expenses shall
not be payable with respect to a Substituted Member or Additional Member that
is or is to become an employee of the Company or any of its Subsidiaries, where
the issuance or Transfer of an interest in the Company to such Person is in
connection with their provision of services to the Company or any of its
Subsidiaries.


 


32














 


(b)           Conditions and Limitations.  The admission of any Person as a Substituted
Member or an 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 (A) execution and delivery of a counterpart signature
page to this Agreement countersigned by the Managing Member on behalf of
the Company or (B) any other writing evidencing the intent of such Person
to become a Substituted Member or an Additional Member and such writing is
accepted by the Managing Member on behalf of the Company.


 


(c)           Prohibited Transfers.  Notwithstanding any contrary provision in
this Agreement, in no event may any Transfer of a Unit or other interest in the
Company be made by any Member or Assignee if:


 


(i)            such Transfer is
made to any Person who lacks the legal right, power or capacity to own such
Unit or other interest in the Company;


 


(ii)           such Transfer would
pose a material risk that the Company would be a “publicly traded partnership”
as defined in Section 7704 of the Code;


 


(iii)          such Transfer would
require the registration of such transferred Unit or other interest in the
Company or of any Class of Unit or other interest in the Company pursuant
to any applicable United States federal or state securities laws (including,
without limitation, the Securities Act or the Exchange Act) or other non-U.S.
securities laws (including Canadian provincial or territorial securities laws)
or would constitute a non-exempt distribution pursuant to applicable provincial
or state securities laws;


 


(iv)          such Transfer would
cause any portion of the assets of the Company to become “plan assets” of any “benefit
plan investor” within the meaning of regulations issued by the U.S. Department
of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29
of the Code of Federal Regulations as modified by Section 3(42) of the
Employee Retirement Income Security Act of 1974, as amended from time to time;
or


 


(v)           to the extent
requested by the Managing Member, the Company does not receive such legal
and/or tax opinions and written instruments (including, without limitation,
copies of any instruments of Transfer and such Assignee’s consent to be bound
by this Agreement as an Assignee) that are in a form satisfactory to the
Managing Member, as determined in the Managing Member’s sole discretion.


 


In addition, notwithstanding any contrary
provision in this Agreement, to the extent the Managing Member shall determine
that interests in the Company do not meet the requirements of Treasury
Regulation section 1.7704-1(h), the Managing Member may impose such
restrictions on the Transfer of Units or other interests in the Company as the
Managing Member may determine to be necessary or advisable so that the Company
is not treated as a publicly traded partnership taxable as a corporation under Section 7704
of the Code.


 


Any Transfer in violation of Section 7.4
or this Section 7.5(c) shall be null and void ab initio and of no effect.


 


33

















 


(d)           Effect of Transfer to Substituted Member.  Following the Transfer of any Unit or other
interest in the Company that is permitted under Sections 7.4 and 7.5,
the Transferee of such Unit or other interest in the Company shall be treated
as having made all of the Capital Contributions in respect of, and received all
of the distributions received in respect of, such Unit or other interest in the
Company, shall succeed to the Capital Account balance associated with such Unit
or other interest in the Company, shall receive allocations and distributions
under ARTICLE IV, ARTICLE V and Section 7.2 in
respect of such Unit or other interest in the Company and otherwise shall
become a Substituted Member entitled to all the rights of a Member with respect
to such Unit or other interest in the Company.


 


Section 7.6.  Additional
Requirements.  Notwithstanding any
contrary provision in this Agreement, for the avoidance of doubt, the Managing
Member may impose such vesting requirements, forfeiture provisions, Transfer
restrictions, minimum retained ownership requirements or other similar
provisions with respect to any interests in the Company that are outstanding as
of the date of this Agreement or are created hereafter, with the written
consent of the holder of such interests in the Company.  Such requirements, provisions and
restrictions need not be uniform among holders of interests in the Company and
may be waived or released by the Managing Member in its sole discretion with
respect to all or a portion of the interests in the Company owned by any one or
more Members or Assignees at any time and from time to time, and such actions
or omissions by the Managing Member shall not constitute the breach of this
Agreement or of any duty hereunder or otherwise existing at law, in equity or
otherwise.


 


Section 7.7.  Mandatory
Exchange.  The Managing Member may,
with the consent of those Members (other than the Managing Member) holding not
less than 75% of the Holdings Units (as such term is defined in the Exchange
Agreement) (excluding any Holdings Units held by the Managing Member) require
all Members holding Holdings Units to exchange all such units held by them
pursuant to the Exchange Agreement.


 


Section 7.8.  Bankruptcy.  Notwithstanding any other provision of this
Agreement, the Bankruptcy of a Member shall not cause such Member to cease to
be a member of the Company and upon the occurrence of such an event, the
Company shall continue without dissolution.


 


ARTICLE VIII

BOOKS AND RECORDS; FINANCIAL STATEMENTS AND OTHER INFORMATION;

TAX MATTERS


 


Section 8.1.  Books and
Records.   The Company shall keep at its principal executive
office (i) correct and complete books and records of account (which, in
the case of financial records, shall be kept in accordance with GAAP), (ii) minutes
of the proceedings of meetings of the Members, (iii) a current list of the
directors and officers of the Company and its Subsidiaries and their respective
residence addresses, and (iv) a record containing the names and addresses
of all Members, the total number of Units held by each Member, and the dates
when they respectively became the owners of record thereof.  Any of the foregoing books, minutes or
records may be in written form or in any other form capable of being converted
into written form within a reasonable time. Except as expressly set forth in
this Agreement, notwithstanding the 


 


34

















 


rights set forth in Section 18-305 of the Act, no Member shall
have the right to obtain information from the Company.


 


Section 8.2.  Information.


 


(a)           The Members shall be supplied with all other Company
information necessary to enable each Member to prepare its federal, state, and
local income tax returns.


 


(b)           All determinations, valuations and other matters of
judgment required to be made for ordinary course accounting purposes under this
Agreement shall be made by the Managing Member and shall be conclusive and
binding on all Members, their Successors in Interest and any other Person who
is a party to or otherwise bound by this Agreement, and to the fullest extent
permitted by law or as otherwise provided in this Agreement, no such Person
shall have the right to an accounting or an appraisal of the assets of the
Company or any successor thereto.


 


Section 8.3.  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 Managing Member in its sole discretion in
accordance with Section 706 of the Code.


 


Section 8.4.  Certain Tax
Matters.


 


(a)           Preparation of Returns.  The Managing Member 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 Managing Member
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 of America, 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.  Except as specifically provided otherwise in
this Agreement, the Managing Member may cause the Company to make or refrain
from making any and all elections permitted by such tax laws.  As promptly as practicable after the end of
each Fiscal Year, the Managing Member shall cause the Company to provide to
each Member a Schedule K-1 for such Fiscal Year.  Additionally, the Managing Member shall cause
the Company to provide to each Member, to the extent commercially reasonable
and available to the Company without undue cost, any information reasonably
required by the Member to prepare, or in connection with an audit of, such
Member’s income tax returns.


 


(b)           Consistent Treatment.  Each Member agrees that it shall not, except
as otherwise required by applicable law or regulatory requirements, (i) treat,
on its individual income tax returns, any item of income, gain, loss, deduction
or credit relating to its 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 its 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.


 


(c)           Duties of the Tax Matters Member.  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 


 


35

















 


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
Managing Member shall direct the Tax Matters Member to act for, and such action
shall be final and binding upon, the Company and all Members except to the
extent a 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 attorneys’, accountants’ and other experts’
fees and disbursements) shall be expenses of, and payable by, the Company, (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 (other than items
which are not partnership items within the meaning of Code Section 6231(a)(4) or
which cease to be partnership items under Code Section 6231(b)) 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 and (D) the
Tax Matters Member shall keep the Members reasonably apprised of the status of
any such proceeding.  Notwithstanding the
previous sentence, if a petition for a readjustment to any partnership item
included in a final partnership administrative adjustment is filed with a
District Court or the Court of Claims and the IRS has elected to assess income
tax against a Member with respect to that final partnership administrative
adjustment (rather than suspending assessments until the District Court or
Court of Claims proceedings become final), such Member shall be permitted to
file a claim for refund within such period of time as to avoid application of
any statute of limitations which would otherwise prevent the Member from having
any claim based on the final outcome of that review.


 


(d)           Tax Matters Member. 
The Company and each Member hereby designate the Managing Member as the “tax
matters partner” for purposes of Code Section 6231(a)(7) (the “Tax
Matters Member”).


 


(e)           Certain Filings. 
Upon the Transfer of an interest in the Company (within the meaning of
the Code), a sale of Company assets or a liquidation of the Company, the
Members shall provide the Managing Member with information and shall make tax
filings as reasonably requested by the Managing Member and required under
applicable law.


 


(f)            Section 754 Election. The Managing Member
shall cause the Company to make and to maintain and keep in effect at all
times, in accordance with Sections 734, 743 and 754 of the Code and applicable
Treasury Regulations and comparable state law provisions, an election to adjust
basis in the event (i) any Class A Unit is Transferred in accordance
with this Agreement or the Exchange Agreement or (ii) any Company property
is distributed to any Member.


 


36

















 


ARTICLE IX

MISCELLANEOUS


 


Section 9.1.  Separate
Agreements; Schedules. 
Notwithstanding any other provision of this Agreement, including Section 9.4,
or of any subscription agreement between the Company and any Member, the
Managing Member may, or may cause the Company to, without the approval of any
other Member or other Person, enter into separate agreements with individual
Members with respect to any matter, which have the effect of establishing
rights under, or altering, supplementing or amending the terms of, this
Agreement or any such subscription agreement. 
The parties hereto agree that any terms contained in any such separate
agreement shall govern with respect to such Member(s) party thereto
notwithstanding the provisions of this Agreement. The Managing Member may from
time to time execute and deliver to the Members schedules which set forth
information contained in the books and records of the Company and any other
matters deemed appropriate by the Managing Member.  Such schedules shall be for information
purposes only and shall not be deemed to be part of this Agreement for any
purpose whatsoever.


 


Section 9.2.  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.


 


Section 9.3.  Successors and
Assigns.  This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective Successors in Interest; provided that no Person claiming by, through
or under a Member (whether as such Member’s Successor in Interest 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 9.4.  Amendments
and Waivers.   This Agreement may be
amended, supplemented, waived or modified by the written consent of the
Managing Member in its sole discretion without the approval of any other Member
or other Person; provided that except as otherwise provided herein (including,
without limitation, in Section 3.2(a)), no amendment may materially and
adversely affect the rights of a holder of Units, as such, other than on a pro
rata basis with other holders of Units of the same Class without the
consent of such holder (or, if there is more than one such holder that is so
affected, without the consent of a majority of such affected holders in
accordance with their holdings of Units), provided further, however, that
notwithstanding the foregoing, the Managing Member may, without the written
consent of any other Member or any other Person, amend, supplement, waive or
modify any provision of this Agreement and execute, swear to, acknowledge,
deliver, file and record whatever documents may be required in connection
therewith, to reflect: (1) any amendment, supplement, waiver or
modification that the Managing Member determines to be necessary or appropriate
in connection with the creation, authorization or issuance of any Class of
Units or other Equity Securities in the Company or other Company securities in
accordance with this Agreement; (2) the admission, substitution,
withdrawal or removal of Members in accordance with this Agreement; (3) a
change in the name of the Company, the location of the principal place of
business of the 


 


37

















 


Company, the registered
agent of the Company or the registered office of the Company; (4) any
amendment, supplement, waiver or modification that the Managing Member
determines in its sole discretion to be necessary or appropriate to address changes
in U.S. federal income tax regulations, legislation or interpretation; or (5) a
change in the Fiscal Year or taxable year of the Company and any other changes
that the Managing Member determines to be necessary or appropriate as a result
of a change in the Fiscal Year or taxable year of the Company, including a
change in the dates on which distributions are to be made by the Company;
provided further, that the books and records of the Company shall be deemed
amended from time to time to reflect the admission of a new Member, the
withdrawal or resignation of a Member, the adjustment of the Units or other
interests in the Company resulting from any issuance, Transfer or other
disposition of Units or other interests in the Company, in each case that is made
in accordance with the provisions hereof. 
If an amendment has been approved in accordance with this agreement,
such amendment shall be adopted and effective with respect to all Members. Upon
obtaining such approvals as may be required by this Agreement, and without
further action or execution on the part of any other Member or other Person,
any amendment to this Agreement may be implemented and reflected in a writing
executed solely by the Managing Member and the other Members shall be deemed a
party to and bound by such amendment.


 


The Managing Member may, in its sole
discretion, unilaterally amend this Agreement on or before the effective date
of the final regulations to provide for (i) the election of a safe harbor
under Proposed Treasury Regulation Section 1.83-3(l) (or any similar
provision) under which the fair market value of a partnership interest (or
interest in an entity treated as a partnership for U.S. federal income tax
purposes) that is transferred is treated as being equal to the liquidation
value of that interest, (ii) an agreement by the Company and each of its
Members to comply with all of the requirements set forth in such regulations
and Notice 2005-43 (and any other guidance provided by the Internal Revenue
Service with respect to such election) with respect to all partnership
interests (or interest in an entity treated as a partnership for U.S. federal
income tax purposes) transferred in connection with the performance of services
while the election remains effective, (iii) the allocation of items of
income, gains, deductions and losses required by the final regulations similar
to Proposed Treasury Regulation Section 1.704-1(b)(4)(xii)(b) and
(c), and (iv) any other related amendments.


 


Notwithstanding the foregoing, in addition to
any other consent that may be required, the consent of each of Vestar Capital
Partners IV, L.P. and Edward L. Donnelly, Jr. shall also be required for
so long as such holder of Class A Units continues, together with its
Affiliates, to hold a number of Class A Units that is equal to or greater
than 3% of the number of Class A Units outstanding immediately following
the closing of the IPO and the related purchase of Class A Units by the
Managing Member with the proceeds therefrom (such number to be adjusted for any
subdivision or combination of the Holdings Units effected after the closing of
the IPO) for any amendment of this Agreement (or the rights of the Class A
Units in connection with the authorization or issuance of any other Units or
Equity Securities of the Company) that (i) reduces the right of such
holder of Class A Units and/or such Affiliates to receive Tax
Distributions other than on a pro rata basis with a reduction in taxable income
allocable to such holder and other holders of Units of the same Class, (ii) precludes
or limits the rights of such holder of Class A Units and/or such
Affiliates to exercise their rights under the Exchange Agreement, (iii) requires
such holder of Class A Units and/or such Affiliates to make a Capital
Contribution (including as a condition to maintaining any rights necessary to
permit such holders 


 


38

















 


to exercise their rights
under the Exchange Agreement), (iv) materially increases the obligations
of such holder of Class A Units and/or such Affiliates under this
Agreement or (v) permits the appointment of a substitute Managing Member
other than as expressly provided pursuant to the definition of “Managing Member”.


 


Notwithstanding the
foregoing, in addition to any other consent that may be required, any amendment
of this Agreement that requires a holder of Class A Units on the date hereof to
make a Capital Contribution (including as a condition to maintaining any rights
necessary to permit such holders to exercise their rights under the Exchange
Agreement) shall require the consent of such holder of Class A Units.


 


No failure or delay by any party in
exercising any right, power or privilege hereunder (other than a failure or
delay beyond a period of time specified herein) shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.


 


Section 9.5.  Notices.  Whenever notice is required or permitted by
this Agreement to be given, such notice shall be in writing and shall be given
to any Member at such Member’s address or facsimile 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 (which shall not constitute notice to the Company) to:


 


Simpson Thacher & Bartlett LLP


425 Lexington Avenue


New York, New York 10017


Attention: Joshua Ford Bonnie


Facsimile: (212) 455-2502


 


Each proper notice shall be effective upon
any of the following: (a) personal delivery to the recipient, (b) when
sent by facsimile to the recipient (with confirmation of receipt), (c) one
Business Day after being sent to the recipient by reputable overnight courier
service (charges prepaid) or (d) three Business Days after being deposited
in the mails (first class or airmail postage prepaid).


 


Section 9.6.  Counterparts.  This Agreement may be executed simultaneously
in two or more separate counterparts, any one of which need not contain the
signatures of more than one party, but each of which shall be an original and
all of which together shall constitute one and the same agreement binding on
all the parties hereto.


 


Section 9.7.  Power of
Attorney.  Each Member hereby
irrevocably appoints the Managing Member as such Member’s true and lawful
representative and attorney in fact, each acting alone, in such Member’s name,
place and stead, (a) 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 which 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 


 


39

















 


shall determine to do
business, or any political subdivision or agency thereof and (b) to
execute, implement and continue the valid and subsisting existence of the
Company or to qualify and continue the Company as a foreign limited liability
company in all jurisdictions in which the Company may conduct business.  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,
incapacity, bankruptcy or dissolution of such Member.  No power of attorney granted in this
Agreement shall revoke any previously granted power of attorney.


 


Section 9.8.  Entire
Agreement.  This Agreement, the
Exchange Agreement, the Tax Receivable 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, including the Original Agreement, the First Amended Agreement and the
Second Amended Agreement.


 


Section 9.9.  Remedies.
 Each Member shall have all rights and
remedies set forth in this Agreement and all rights and remedies that such
Person has been granted at any time under any other agreement or contract and
all of the rights that such Person has under any applicable law.  Any Person having any rights under any
provision of this Agreement or any other agreements contemplated hereby shall
be entitled to enforce such rights specifically (without posting a bond or
other security) to recover damages by reason of any breach of any provision of
this Agreement and to exercise all other rights granted by applicable law.


 


Section 9.10.  Severability.  Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other provision or any other jurisdiction, but this Agreement shall
be reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.


 


Section 9.11.  Creditors.  None of the provisions of this Agreement
shall be for the benefit of or enforceable by any creditors of the Company or
any of its Affiliates, and no creditor who makes a loan to the Company or any
of its Affiliates may have or acquire (except pursuant to the terms of a
separate agreement executed by the Company in favor of such creditor) at any
time as a result of making the loan any direct or indirect interest in Company
profits, losses, distributions, capital or property other than as a secured
creditor.


 


Section 9.12.  Waiver.  No failure by any party to insist upon the
strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon a breach thereof
shall constitute a waiver of any such breach or any other covenant, duty, agreement
or condition.


 


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Section 9.13.  Further
Action.  The parties agree to execute
and deliver all documents, provide all information and take or refrain from
taking such actions as may be necessary or appropriate to achieve the purposes
of this Agreement.


 


Section 9.14.  Delivery by
Facsimile or Email.  This Agreement,
the agreements referred to herein, and each other agreement or instrument
entered into in connection herewith or therewith or contemplated hereby or
thereby, and any amendments hereto or thereto, to the extent signed and
delivered by means of a facsimile machine or email with scan or facsimile
attachment, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in
person.  At the request of any party
hereto or to any such agreement or instrument, each other party hereto or
thereto shall re execute original forms thereof and deliver them to all other
parties.  No party hereto or to any such
agreement or instrument shall raise the use of a facsimile machine or email to
deliver a signature or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine or email
as a defense to the formation or enforceability of a contract, and each such
party forever waives any such defense.


 


41

















 


IN WITNESS WHEREOF, the parties have executed this Third Amended and
Restated Limited Liability Company Agreement.


 


	
   

  	
  MANAGING
  MEMBER

  
	
   

  	
   

  
	
   

  	
  DYNAVOX
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OTHER
  MEMBERS

  
	
   

  	
   

  
	
   

  	
  By:
  Edward L. Donnelley, as attorney-in-fact for the Members party to the Second
  Amended and Restated Limited Liability Company Agreement of DynaVox Systems
  Holdings LLC, dated as of January 22, 2008, pursuant to Section 7.8
  thereof

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


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