Exhibit 10.3


 


TAX RECEIVABLE AGREEMENT


 


This TAX RECEIVABLE AGREEMENT (as amended from time to time, this “Agreement”),
dated as of
                ,
2010, is hereby entered into by and among DynaVox Inc., a Delaware corporation
(the “Corporation”), DynaVox Systems Holdings LLC, a Delaware limited
liability company (“Holdings”), and each of the Members (as defined
herein).


 


RECITALS


 


WHEREAS, the Members hold member interests (“Units”) in Holdings,
which is treated as a partnership for United States federal income tax
purposes;


 


WHEREAS, the Corporation is the managing member of, and holds and will
hold Units in, Holdings;


 


WHEREAS, the Corporation will be entitled to depreciation, amortization
and other recovery of cost or basis for Tax purposes in respect of the IPO Date
Intangible Assets (as defined below);


 


WHEREAS, as a result of the Members agreeing to hold Units rather than
transferring all of their Units in exchange for Class A Shares (as defined
below), the Corporation will incur significantly lower tax liabilities on an
ongoing basis with respect to the operations of Holdings;


 


WHEREAS, the Units held by the Members are exchangeable for Class A
common stock (the “Class A Shares”) of the Corporation;


 


WHEREAS, Holdings and each of its direct and indirect subsidiaries
treated as a partnership for United States federal income tax purposes will
have in effect an election under Section 754 of the United States Internal
Revenue Code of 1986, as amended (the “Code”), for each Taxable Year (as
defined below) in which an exchange of Units for Class A Shares occurs,
which election is intended to result in an adjustment to the tax basis of the
assets owned by Holdings and such subsidiaries (solely with respect to the
Corporation) at the time (such time, the “Exchange Date”) of a taxable
exchange of Units for Class A Shares or any other taxable acquisition of
Units for cash or otherwise (collectively, an “Exchange”) by reason of
such Exchange and the payments under this Agreement;


 


WHEREAS, the Corporation will purchase a number of Units from the
Members in connection with the IPO, which shall be treated as an Exchange for
all purposes of this Agreement;


 


WHEREAS, the income, gain, loss, expense and other Tax (as defined
below) items of (i) the Corporation, as a member of Holdings (and in
respect of each of Holdings’s direct and indirect subsidiaries treated as a
partnership for United States federal income tax purposes), with respect to the
IPO Date Intangible Assets and the Specified Assets, may be affected by the existing
Tax basis of the IPO Date Intangible Assets and by the Basis Adjustment
(defined below) with respect to the IPO Date Intangible Assets and the
Specified Assets and (ii) the Corporation may be affected by the Imputed
Interest (as defined below); and


 

















 


WHEREAS, the parties to this Agreement desire to make certain
arrangements with respect to the actual or deemed effect of the Tax basis of
the IPO Date Intangible Assets, the Basis Adjustment and the Imputed Interest
on the liability for Taxes of the Corporation.


 


NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements set forth herein, and intending to be legally bound
hereby, the parties hereto agree as follows:


 


ARTICLE I.  DEFINITIONS


 


Definitions. As used in this Agreement, the terms set forth in this Article I
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined).


 


“Advisory Firm” means any “big four” accounting firm or any other
law or accounting firm that is nationally recognized as being expert in Tax
matters and that is agreed to by the Board of Directors of the Corporation.


 


“Advisory Firm Letter” shall mean a letter from the Advisory Firm
stating that the relevant schedule, notice or other information to be provided
by the Corporation to the Exchanging Member and all supporting schedules and
work papers were prepared in a manner consistent with the terms of this
Agreement and, to the extent not expressly provided in this Agreement, on a
reasonable basis in light of the facts and law in existence on the date such
schedule, notice or other information is delivered to the Exchanging Member.


 


“Affiliate” means, with respect to any Person, any other Person
that directly or indirectly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such first Person.


 


“Agreed Rate” means LIBOR plus 100 basis points.


 


“Agreement” is defined in the preamble of this Agreement.


 


“Amended Schedule” is defined in Section 2.04(b) of
this Agreement.


 


“Amount Realized” means, in respect of an Exchange by an
Exchanging Member, the amount that is deemed for purposes of this Agreement to
be the amount realized by the Exchanging Member on the Exchange, which shall be
the sum of (i) the Market Value of the Class A Shares, the amount of
cash and the amount or fair market value of other consideration received (or
deemed received) by the Exchanging Member in the Exchange and (ii) the
Share of Liabilities attributable to the Units Exchanged.  The amount realized by an Exchanging Member,
as so determined, may differ from the amount realized by the Exchanging Member
for purposes of Section 1001 of the Code.


 


“Available Cash” means all cash and cash equivalents of the
Corporation on hand, less the amount of cash reserves reasonably established in
good faith by the Corporation to (i) provide for the proper conduct of the
business of the Corporation, (ii) comply with applicable law or any Senior
Obligations, or (iii) make payments under this 


 


2

















 


Agreement that may not be deferred under Section 3.01(c);
provided,
however, that on any Payment Date the Corporation shall be deemed to have
Available Cash in amount no less than the remainder of (x) the aggregate
amount of tax distributions received by the Corporation from Holdings since the
first Exchange Date minus (y) the sum of (A) the aggregate amount of
all payments made by the Corporation in respect of taxes or under this Agreement
since the first Exchange Date plus (B) the aggregate amount due on such
Payment Date under this Agreement that may not be deferred under Section 3.01(c).


 


“Basis Adjustment” means the deemed adjustment to the Tax basis
of an IPO Date Intangible Asset or a Specified Asset, in each case, arising in
respect of an Exchange, as calculated under Section 2.01 of this
Agreement, under the principles of Section 732 of the Code (in a situation
where, as a result of one or more Exchanges, Holdings becomes an entity that is
disregarded as separate from its owner for tax purposes) or Sections 743(b) and
754 of the Code (including in situations where, following an Exchange, Holdings
remains in existence as an entity for tax purposes) and, in each case,
comparable sections of state, local and foreign Tax laws.  Notwithstanding any other provision of this
Agreement, the amount of any Basis Adjustment resulting from an Exchange of one
or more Units shall be determined without regard to any Pre-Exchange Transfer
of such Units and as if any such Pre-Exchange Transfer had not occurred.


 


A “Beneficial Owner” of a security is a Person who directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has or shares: (i) voting power, which includes the power to
vote, or to direct the voting of, such security and/or (ii) investment
power, which includes the power to dispose of, or to direct the disposition of,
such security.  The terms “Beneficially
Own” and “Beneficial Ownership” shall have correlative meanings.


 


“Board” means the board of directors of the Corporation.


 


“Business Day” means Monday through Friday of each week, except
that a legal holiday recognized as such by the government of the United States
of America or the State of New York shall not be regarded as a Business Day.


 


“Change of Control” means the occurrence of any of the following
events:


 


(i)                                     any Person or any
group of Persons acting together which would constitute a “group” for purposes
of Section 13(d) of the Exchange Act, or any successor provisions
thereto (excluding (a) a corporation or other entity owned, directly or
indirectly, by the stockholders of the Corporation in substantially the same
proportions as their ownership of stock of the Corporation; (b) Vestar
Capital Partners IV, L.P., VCD Investors LLC and their affiliates; or (c) any
party from time to time to the Securityholders Agreement, dated as of or about
the date hereof, by and among the Corporation, Holdings and the Securityholders
from time to time parties thereto, as such agreement may be amended from time
to time, unless such party together with its affiliates is the holder of
securities representing more than fifty percent (50%) of the outstanding voting
securities of the Corporation or is deemed to beneficially own more than fifty
percent (50%) of the outstanding voting securities of the Corporation for
purposes of Rule 16a-1(a)(2) under the Exchange Act, or any “group”
(as such term is used in


 


3

















 


Section 13(d)(3) of the Exchange Act)
to the extent that such group may be deemed to exist solely as a result of the
Securityholders Agreement) is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporation representing more than fifty
percent (50%) of the combined voting power of the Corporation’s then
outstanding voting securities; or


 


(ii)                                  the following
individuals cease for any reason to constitute a majority of the number of
directors of the Corporation then serving: individuals who, on the date of the
consummation of the initial public offering of Class A Shares, constitute
the Board and any new director (other than a director whose initial assumption
of office is in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to an election of
directors of the Corporation) whose appointment or election by the Board or
nomination for election by the Corporation’s shareholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on the date of the consummation of the
initial public offering of Class A Shares or whose appointment, election
or nomination for election was previously so approved or recommended by the
directors referred to in this clause (ii); or


 


(iii)                               there is
consummated a merger or consolidation of the Corporation with any other
corporation or other entity, and, immediately after the consummation of such
merger or consolidation, either (x) the Board immediately prior to the
merger or consolidation does not constitute at least a majority of the board of
directors of the company surviving the merger or, if the surviving company is a
subsidiary, the ultimate parent thereof, or (y) all of the Persons who
were the respective Beneficial Owners of the voting securities of the
Corporation immediately prior to such merger or consolidation do not
Beneficially Own, directly or indirectly, more than 50% of the combined voting
power of the then outstanding voting securities of the Person resulting from
such merger or consolidation; or


 


(iv)                              the shareholders
of the Corporation approve a plan of complete liquidation or dissolution of the
Corporation or there is consummated an agreement or series of related
agreements for the sale or other disposition, directly or indirectly, by the
Corporation of all or substantially all of the Corporation’s assets, other than
such sale or other disposition by the Corporation of all or substantially all
of the Corporation’s assets to an entity, at least fifty percent (50%) of the
combined voting power of the voting securities of which are owned by
shareholders of the Corporation in substantially the same proportions as their
ownership of the Corporation immediately prior to such sale.


 


Notwithstanding the foregoing, except with respect to
clause (ii) and clause (iii)(x) above, a “Change of Control” shall
not be deemed to have occurred by virtue of the consummation of any transaction
or series of integrated transactions immediately following which the record
holders of the shares of the Corporation immediately prior to such transaction
or series of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the assets of the
Corporation immediately following such transaction or series of transactions.


 


4

















 


“Class A Shares” is defined in the Recitals of this
Agreement.


 


“Code” is defined in the Recitals of this Agreement.


 


“Control” means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise.


 


“Corporation” is defined in the Preamble of this Agreement.


 


“Corporation Return” means the United States federal, state,
local and/or foreign Tax Return, as applicable, of the Corporation filed with
respect to Taxes of any Taxable Year.


 


“Cumulative Net Realized Tax Benefit” for a Taxable Year means
the cumulative amount of Realized Tax Benefits for all Taxable Years of the
Corporation, up to and including such Taxable Year, net of the cumulative
amount of Realized Tax Detriments for the same period.  The Realized Tax Benefit and Realized Tax
Detriment for each Taxable Year shall be determined based on the most recent
Tax Benefit Schedule or Amended Schedule, if any, in existence at the time of
such determination.


 


“Default Rate” means LIBOR plus 500 basis points.


 


“Determination” shall have the meaning ascribed to such term in Section 1313(a) of
the Code or similar provision of state, local and foreign Tax law, as
applicable, or any other event (including the execution of an IRS Form 870-AD)
that finally and conclusively establishes the amount of any liability for Tax.


 


“Dispute” has the meaning set forth in Section 7.08(a).


 


“Early Termination Date” means the date of an Early Termination
Notice for purposes of determining the Early Termination Payment.


 


“Early Termination Notice” is defined in Section 4.02 of
this Agreement.


 


“Early Termination Payment” is defined in Section 4.03(b) of
this Agreement.


 


“Early Termination Rate” means LIBOR plus 100 basis points.


 


“Early Termination Schedule” is defined in Section 4.02 of
this Agreement.


 


“Exchange” is defined in the Recitals of this Agreement, and “Exchanged”
and “Exchanging” shall have correlative meanings.


 


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


 


“Exchange Basis Schedule” is defined in Section 2.02 of this
Agreement.


 


“Exchange Date” is defined in the Recitals of this Agreement.


 


5

















 


“Exchange Payment” is defined in Section 5.01.


 


“Exchanging Member” means a Member that Exchanges some or all of
its Units.


 


“Expert” is defined in Section 7.09 of this Agreement.


 


“Hypothetical Tax Liability” means, with respect to any Taxable
Year, the liability for Taxes of the Corporation (or Holdings, but only with
respect to Taxes imposed on Holdings and allocable to the Corporation) using
the same methods, elections, conventions and similar practices used on the
relevant Corporation Return, but using the Non-Stepped Up Tax Basis instead of
the Tax basis reflecting the Basis Adjustments of the IPO Date Intangible
Assets and the Specified Assets and excluding any deduction attributable to
Imputed Interest.


 


“Imputed Interest” shall mean any interest imputed under Section 1272,
1274 or 483 or other provision of the Code and any similar provision of state,
local and foreign Tax law with respect to the Corporation’s payment obligations
under this Agreement.


 


“IPO” means the initial public offering of Class A Shares by
the Corporation.


 


“IPO Date” means the date on which the Corporation contributes to
Holdings the net proceeds received by the Corporation in connection with the
IPO.


 


“IPO Date Intangible Asset” means each asset that is held by
Holdings, or by any of its direct or indirect subsidiaries treated as a
partnership or disregarded entity for purposes of the applicable Tax, immediately
prior to the IPO Date and is described in Section 197(d) of the Code.


 


“IRS” means the United States Internal Revenue Service.


 


“LIBOR” means for each month (or portion thereof) during any
period, an interest rate per annum equal to the rate per annum reported, on the
date two days prior to the first day of such month, on the Telerate Page 3750
(or if such screen shall cease to be publicly available, as reported on Reuters
Screen page “LIBO” or by any other publicly available source of such
market rate) for London interbank offered rates for United States dollar
deposits for such month (or portion thereof).


 


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


 


“Market Value” shall mean the closing price of the Class A
Shares on the applicable Exchange Date on the national securities exchange or
interdealer quotation system on which such Class A Shares are then traded
or listed, as reported by the Wall Street Journal; provided that if the closing
price is not reported by the Wall Street Journal for the applicable Exchange
Date, then the Market Value shall mean the closing price of the Class A
Shares on the Business Day immediately preceding such Exchange Date on the
national securities exchange or interdealer quotation system on which such Class A
Shares are then 


 


6

















 


traded or listed, as reported by the Wall Street
Journal; provided further, that if the Class A Shares are not then listed
on a National Securities Exchange or Interdealer Quotation System, “Market
Value” shall mean the cash consideration paid for Class A Shares, or the
fair market value of the other property delivered for Class A Shares, as
determined by the Board of Directors of the Corporation in good faith.


 


“Material Objection Notice” has the meaning set forth in Section 4.02.


 


“Members” means the parties hereto, other than the Corporation
and Holdings, and each other Person who from time to time executes a Joinder
Agreement in the form attached hereto as Exhibit A.


 


“Non-Stepped Up Tax Basis” means, with respect to any asset at
any time, the Tax basis that such asset would have had at such time if no Basis
Adjustment had been made, provided that the Non-Stepped Up Tax Basis of an IPO
Date Intangible Asset shall be assumed to be zero.


 


“Objection Notice” has the meaning set forth in Section 2.04(a).


 


“Original Members” means the members of Holdings on the date of,
but immediately preceding, the initial public offering of Class A Shares.


 


“Payment Date” means any date on which a payment is required to
be made pursuant to this Agreement.


 


“Person” means any individual, corporation, firm, partnership,
joint venture, limited liability company, estate, trust, business association,
organization, governmental entity or other entity.


 


“Pre-Exchange Transfer” means any transfer (including upon the
death of a Member) of one or more Units (i) that occurs prior to an
Exchange of such Units, and (ii) to which Section 743(b) of the
Code applies.


 


“Realized Tax Benefit” means, for a Taxable Year and for all
Taxes collectively, the net excess, if any, of the Hypothetical Tax Liability
over the “actual” liability for Taxes of the Corporation (or Holdings, but only
with respect to Taxes imposed on Holdings and allocable to the Corporation for
such Taxable Year), such “actual” liability to be computed with the adjustments
described in this Agreement.  If all or a
portion of the actual liability for Taxes of the Corporation (or Holdings, but
only with respect to Taxes imposed on Holdings and allocable to the Corporation
for such Taxable Year) for the Taxable Year arises as a result of an audit by a
Taxing Authority of any Taxable Year, such liability shall not be included in
determining the Realized Tax Benefit unless and until there has been a
Determination.


 


“Realized Tax Detriment” means, for a Taxable Year and for all
Taxes collectively, the net excess, if any, of the “actual” liability for Taxes
of the Corporation (or Holdings, but only with respect to Taxes imposed on
Holdings and allocable to the Corporation for such Taxable Year), such “actual”
liability to be computed with the adjustments described in this Agreement, over
the Hypothetical Tax Liability for such Taxable Year.  If all or a portion of the actual liability
for Taxes of the Corporation (or 


 


7

















 


Holdings, but only with respect to Taxes imposed on
Holdings and allocable to the Corporation for such Taxable Year) for the
Taxable Year arises as a result of an audit by a Taxing Authority of any
Taxable Year, such liability shall not be included in determining the Realized
Tax Detriment unless and until there has been a Determination.


 


“Reconciliation Dispute” has the meaning set forth in Section 7.09.


 


“Reconciliation Procedures” shall mean those procedures set forth
in Section 7.09 of this Agreement.


 


“Schedule” means any Exchange Basis Schedule or Tax Benefit
Schedule and the Early Termination Schedule.


 


“Senior Obligations” is defined in Section 5.01 of this
Agreement.


 


“Share of Base Liabilities”, as to any Unit at the time of an
Exchange, means the product of (i) the lesser of (x) the aggregate
amount of the liabilities of Holdings, for purposes of Section 752 and Section 1001
of the Code, at the time of the Exchange and (y) the aggregate amount of
the liabilities of Holdings, for purposes of Section 752 and Section 1001
of the Code, immediately prior to the IPO Date and (ii) the percentage
share of the Unit in the liabilities of Holdings immediately prior to the IPO
Date, as set out on Annex A to this Agreement; provided, however, that for
purposes of this definition, the amount of the liabilities of Holdings at the
time of the Exchange shall be increased by any reduction in the liabilities of
Holdings at or after the time of the IPO arising from the use of the proceeds
of the IPO, or any other contribution to the capital of Holdings, to fund or repay
liabilities.


 


“Share of Excess Liabilities”, as to any Unit at the time of an
Exchange, means the product of (i) the excess, if any, of (x) the
aggregate amount of the liabilities of Holdings, for purposes of Section 752
and Section 1001 of the Code, at the time of the Exchange over (y) the
aggregate amount of the liabilities of Holdings, for purposes of Section 752
and Section 1001 of the Code, immediately prior to the IPO Date and (ii) the
percentage share of the Unit in the profits of Holdings at the time of the
Exchange; provided, however, that for purposes of this definition, the amount
of the liabilities of Holdings at the time of the Exchange shall be increased
by any reduction in the liabilities of Holdings at or after the time of the IPO
arising from the use of the proceeds of the IPO, or any other contribution to
the capital of Holdings, to fund or repay liabilities.


 


“Share of Liabilities”, as to any Unit at the time of an
Exchange, means the sum of (i) the Unit’s Share of Base Liabilities and (ii) the
Unit’s Share of Excess Liabilities, if any.


 


“Specified Asset” means each asset, other than an IPO Date
Intangible Asset, that is held by Holdings, or by any of its direct or indirect
subsidiaries treated as a partnership or disregarded entity for purposes of the
applicable Tax, at the time of an Exchange.


 


“Subsidiaries” means, with respect to any Person, as of any date
of determination, any other Person as to which such Person, owns, directly or
indirectly, or otherwise controls more than 50% of the voting shares or other
similar interests or the sole general partner interest or managing member or
similar interest of such Person.


 


8

















 


“Tax Benefit Payment” is defined in Section 3.01(b) of
this Agreement.


 


“Tax Benefit Schedule” is defined in Section 2.03 of this
Agreement.


 


“Tax Return” means any return, declaration, report or similar
statement required to be filed with respect to Taxes (including any attached
schedules), including, without limitation, any information return, claim for
refund, amended return and declaration of estimated Tax.


 


“Taxable Year” means a taxable year of the Corporation as defined
in Section 441(b) of the Code or comparable section of state, local
or foreign Tax law, as applicable (and, therefore, for the avoidance of doubt,
may include a period of less than 12 months for which a Tax Return is
prepared), ending on or after the IPO Date.


 


“Taxes” means any and all United States federal, state, local and
foreign taxes, assessments or similar charges that are based on or measured
with respect to net income or profits, whether as an exclusive or on an
alternative basis, and any interest related to such Tax.


 


“Taxing Authority” shall mean any domestic, foreign, federal,
national, state, county or municipal or other local government, any
subdivision, agency, commission or authority thereof, or any quasi-governmental
body exercising any taxing authority or any other authority exercising Tax
regulatory authority.


 


“Treasury Regulations” means the final, temporary and proposed
regulations under the Code promulgated from time to time (including
corresponding provisions and succeeding provisions) as in effect for the
relevant taxable period.


 


“Units” is defined in the Recitals of this Agreement.


 


“Valuation Assumptions” shall mean, as of an Early Termination
Date, the assumptions that (1) in each Taxable Year ending on or after
such Early Termination Date, the Corporation will have taxable income
sufficient to fully use the deductions arising from any Basis Adjustment, IPO
Date Intangible Asset or Imputed Interest during such Taxable Year, (2) the
federal income tax rates and state, local and foreign income tax rates that
will be in effect for each such Taxable Year will be those specified for each
such Taxable Year by the Code and other law as in effect on the Early
Termination Date, (3) any loss carryovers generated by any Basis
Adjustment, IPO Date Intangible Asset or Imputed Interest and available as of
the date of the Early Termination Schedule will be used by the Corporation on a
pro rata basis from the date of the Early Termination Schedule through the
scheduled expiration date of such loss carryovers, (4) any non-amortizable
assets will be disposed of on the fifteenth anniversary of the earlier of the
Basis Adjustment and the Early Termination Date, provided, that in the event of
a Change of Control, non-amortizable assets shall be deemed disposed of at the
earlier of (i) the time of sale of the relevant asset or (ii) as
generally provided in this Valuation Assumption (4) and (5) if, at
the Early Termination Date, there are Units that have not been Exchanged, then
each such Unit shall be deemed to be Exchanged for the Market Value of the Class A
Shares and the amount of cash that would be transferred if the Exchange
occurred on the Early Termination Date.


 


9

















 


ARTICLE II.  DETERMINATION OF CUMULATIVE REALIZED TAX
BENEFIT


 


Section 2.01.  Basis
Adjustment.


 


(a) IPO Date Intangible Assets. For purposes of this
Agreement, as a result of an Exchange, Holdings shall be deemed to be entitled
to a Basis Adjustment for each IPO Date Intangible Asset with respect to the
Corporation calculated by reference to the sum of (x) the Amount Realized
by the Exchanging Member in the Exchange, to the extent attributable to such
IPO Date Intangible Asset, plus (y) the amount of payments made pursuant
to this Agreement with respect to such Exchange, to the extent attributable to
such IPO Date Intangible Asset.  For purposes
of this Agreement, in computing the effect of the Basis Adjustment on the Tax
liability of the Corporation:


 


1. the actual basis adjustment to each IPO Date Intangible Asset under Section 732
or Section 743(b) of the Code shall be recovered by the Corporation
in accordance with its actual recovery for purposes of the applicable Tax; and


 


2. the portion of the Basis Adjustment for each IPO Date Intangible
Asset described in this Section 2.01(a) that exceeds the actual basis
adjustment to such IPO Date Intangible Asset under Section 732 or Section 743(b) of
the Code shall be deemed to be amortized by the Corporation on a straight-line
basis over the 13 years following the Exchange.


 


(b) Specified Assets. For purposes of this Agreement, as a
result of an Exchange, Holdings shall be deemed to be entitled to a Basis
Adjustment for each Specified Asset with respect to the Corporation, the amount
of which Basis Adjustment shall be the excess, if any, of (i) the sum of (x) the
Amount Realized by the Exchanging Member in the Exchange, to the extent
attributable to such Specified Asset, plus (y) the amount of payments made
pursuant to this Agreement with respect to such Exchange, to the extent
attributable to such Specified Asset, over (ii) the Corporation’s share of
Holdings’s Tax basis for such Specified Asset immediately after the Exchange,
attributable to the Units Exchanged, determined as if (x) Holdings remains
in existence as an entity for tax purposes, and (y) Holdings had not made
the election provided by Section 754 of the Code.  For the avoidance of doubt, the Corporation’s
share of Holdings’s Tax basis for such Specified Asset that is attributable to
the Units Exchanged shall be considered to be an amount of the Tax basis of the
Specified Asset, without regard to any Basis Adjustment, proportionate to the
ratio that the number of Units Exchanged bears to the number of outstanding
Units immediately prior to such Exchange. 
For purposes of this Agreement, in computing the effect of the Basis
Adjustment on the Tax liability of the Corporation:


 


1. the actual basis adjustment to each Specified Asset under Section 732
or Section 743(b) of the Code shall be recovered by the Corporation
in accordance with its actual recovery for purposes of the applicable Tax; and


 


2. the portion of the Basis Adjustment for each Specified Asset
described in this Section 2.01(b) that exceeds the actual basis
adjustment to such Specified Asset under Section 732 or Section 743(b) of
the Code shall be deemed to be amortized by the Corporation on a straight line
basis over the 13 years following the Exchange.


 


10














 


(c) Change in Law.  To
the extent that the adjustment to Holdings’s basis with respect to the
Corporation, in any of Holdings’s assets, that is expected to result from an
Exchange is limited because of a change in law, the Basis Adjustment shall be
correspondingly limited.


 


(d) Imputed Interest. 
For the avoidance of doubt, payments made under this Agreement shall not
be treated as resulting in a Basis Adjustment to the extent such payments are
treated as Imputed Interest.


 


Section 2.02.  Exchange
Basis Schedule.  Within 45 calendar
days after the filing of the United States federal income tax return of the
Corporation for each Taxable Year, the Corporation shall deliver to each
Exchanging Member a schedule (an “Exchange Basis Schedule”) that shows,
in reasonable detail, for purposes of Taxes, (i) the actual unadjusted Tax
basis of the Specified Assets as of each applicable Exchange Date, (ii) the
Basis Adjustment with respect to the Specified Assets as a result of the
Exchanges effected in such Taxable Year, calculated in the aggregate, (iii) the
Tax basis in the IPO Date Intangible Assets as a result of the Exchanges
effected in such Taxable Year, as provided in Section 2.01(a), (iv) the
period or periods, if any, over which the Specified Assets and the IPO Date
Intangible Assets are amortizable and/or depreciable and (v) the period or
periods, if any, over which each Basis Adjustment is amortizable and/or
depreciable (which, for non-amortizable assets shall be based on the Valuation
Assumptions).


 


Section 2.03.  Tax
Benefit Schedule.  Within 45 calendar
days after the filing of the United States federal income tax return of the
Corporation for any Taxable Year in which there is a Realized Tax Benefit or
Realized Tax Detriment, the Corporation shall provide to each Exchanging Member
a schedule showing, in reasonable detail, the calculation of the Realized Tax
Benefit or Realized Tax Detriment for such Taxable Year (a “Tax Benefit
Schedule”). The Schedule will become final as provided in Section 2.04(a) and
may be amended as provided in Section 2.04(b) (subject to the
procedures set forth in Section 2.04(b)).


 


Section 2.04.  Procedures,
Amendments.


 


(a) Procedure. Every time the Corporation delivers to an
Exchanging Member an applicable Schedule under this Agreement, including any
Amended Schedule delivered pursuant to Section 2.04(b), but excluding any
Early Termination Schedule or amended Early Termination Schedule, the
Corporation shall also (x) deliver to the Exchanging Member schedules and
work papers providing reasonable detail regarding the preparation of the
Schedule and an Advisory Firm Letter supporting such Schedule and (y) allow
the Exchanging Member reasonable access at no cost to the appropriate
representatives at the Corporation and the Advisory Firm in connection with a
review of such Schedule. The applicable Schedule shall become final and binding
on all parties unless the Exchanging Member, within 30 calendar days after
receiving an Exchange Basis Schedule or amendment thereto or a Tax Benefit Schedule
or amendment thereto, provides the Corporation with notice of a material
objection to such Schedule (“Objection Notice”) made in good faith. If
the parties, for any reason, are unable to successfully resolve the issues
raised in such notice within 30 calendar days of receipt by the Corporation of
an Objection Notice, if with respect to an Exchange Basis Schedule or a Tax
Benefit Schedule, the Corporation and the Exchanging Member shall employ the
reconciliation procedures as described in Section 7.09 of this Agreement
(the “Reconciliation Procedures”).


 


11

















 


(b) Amended Schedule. The applicable Schedule for any
Taxable Year may be amended from time to time by the Corporation (i) in
connection with a Determination affecting such Schedule, (ii) to correct
material inaccuracies in the Schedule identified as a result of the receipt of
additional factual information relating to a Taxable Year after the date the
Schedule was provided to the Exchanging Member, (iii) to comply with the
Expert’s determination under the Reconciliation Procedures, (iv) to
reflect a material change in the Realized Tax Benefit or Realized Tax Detriment
for such Taxable Year attributable to a carryback or carryforward of a loss or
other tax item to such Taxable Year, (v) to reflect a material change in
the Realized Tax Benefit or Realized Tax Detriment for such Taxable Year
attributable to an amended Tax Return filed for such Taxable Year, or (vi) to
adjust the Exchange Basis Schedule to take into account payments made pursuant
to this Agreement (such Schedule, an “Amended Schedule”). The Corporation shall provide
any Amended Schedule to the Exchanging Member. within 30 calendar days of the
occurrence of an event referred to in clauses (i) through (vi) of the
preceding sentence, and any such Amended Schedule shall be subject to approval
procedures similar to those described in Section 2.04(a).


 


ARTICLE III.  TAX BENEFIT PAYMENTS


 


Section 3.01.  Payments.


 


(a)  Payments. Subject to Section 3.01(c), within five (5) calendar
days of a Tax Benefit Schedule that was delivered to an Exchanging Member
becoming final in accordance with Section 2.04(a), the Corporation shall
pay to such Exchanging Member for such Taxable Year the Tax Benefit Payment
determined pursuant to Section 3.01(b). 
Each such Tax Benefit Payment shall be made by wire transfer of
immediately available funds to a bank account of the Exchanging Member
previously designated by such Member to the Corporation.  For the avoidance of doubt, no Tax Benefit
Payment shall be made in respect of estimated tax payments, including, without
limitation, federal income tax payments.


 


(b)  A “Tax Benefit Payment” means an amount, not less than
zero, equal to the sum of the Net Tax Benefit and the Interest Amount.  The “Net Tax Benefit” for each Taxable
Year shall be an amount equal to the excess, if any, of 85% of the Cumulative
Net Realized Tax Benefit as of the end of such Taxable Year over the total
amount of payments previously made under this Section 3.01, excluding
payments attributable to Interest Amount; provided, however, that for the
avoidance of doubt, no Member shall be required to return any portion of any
previously made Tax Benefit Payment.  The
“Interest Amount” for a given Taxable Year shall equal the interest on
the Net Tax Benefit for such Taxable Year calculated at the Agreed Rate from
the due date (without extensions) for filing the Corporation Return with
respect to Taxes for the most recently ended Taxable Year until the Payment
Date.  Notwithstanding the foregoing, for
each Taxable Year ending on or after the date of a Change of Control, all Tax
Benefit Payments, whether paid with respect to Units that were Exchanged (i) prior
to the date of such Change of Control or (ii) on or after the date of such
Change of Control, shall be calculated by using Valuation Assumptions (1), (3),
and (4), substituting in each case the terms “the date on which a Change of
Control becomes effective” for an “Early Termination Date.”  The Net Tax Benefit and the Interest Amount
shall be determined separately with respect to each separate Exchange, on a
Unit-by-Unit 


 


12

















 


basis by reference to the Amount Realized by the
Exchanging Member on the Exchange of a Unit and the resulting Basis Adjustment
to the Corporation.


 


(c)  If on any Payment Date the Corporation does not have
sufficient Available Cash to pay the IPO Date Portion of the Tax Benefit
Payment that is due on such Payment Date as specified in Section 3.01(a),
the Corporation may elect to defer payment of that portion of the IPO Date
Portion of the Tax Benefit Payment that is in excess of the Available
Cash.  The “IPO Date Portion” of
the Tax Benefit Payment for a Taxable Year is an amount equal to the excess, if
any, of (i) the Tax Benefit Payment for such Taxable Year determined
pursuant to Section 3.01(b) over (ii) the Tax Benefit Payment
for such Taxable Year that would be due if (A) the Hypothetical Tax
Liability were calculated assuming the proviso in the definition of Non-Stepped
Up Tax Basis did not apply and (B) the Basis Adjustment had not been
increased by any amounts that would not have been paid pursuant to this
Agreement but for the application of  the
proviso in the definition of Non-Stepped Up Tax Basis.  If the Corporation elects to defer payment of
any amount pursuant to this Section 3.01(c), interest shall accrue on such
amount at the Default Rate from the Payment Date specified in Section 3.01(a) until
such amount is paid.  While any amounts
are deferred pursuant to this Section 3.01(c), the Corporation shall be
required, within thirty (30) calendar days of obtaining Available Cash, to make
payments to Exchanging Members with respect to such deferred amounts to the
extent of such Available Cash.  Upon a
Change of Control, any amounts deferred pursuant to this Section 3.01(c) (including
interest) shall become due, and no further amounts may be deferred pursuant to
this Section 3.01(c).


 


(d)  The Corporation shall use good faith efforts to ensure that it
has sufficient Available Cash to make all payments due under this Agreement
without regard to Section 3.01(c).


 


Section 3.02.  No
Duplicative Payments. 
Notwithstanding anything in this Agreement to the contrary, it is
intended that the provisions of this Agreement will not result in duplicative
payment of any amount (including interest) required under this Agreement. It is
also intended that the provisions of this Agreement will result in 85% of the
Corporation’s Cumulative Net Realized Tax Benefit, and the Interest Amount
thereon, being paid to the Members pursuant to this Agreement.  The provisions of this Agreement shall be
construed in the appropriate manner so that these fundamental results are
achieved.


 


Section 3.03.  Pro
Rata Payments.  For the avoidance of
doubt, to the extent that (i) the Corporation’s deductions with respect to
any Basis Adjustment is limited in a particular Taxable Year or (ii) the
Corporation lacks sufficient funds to satisfy its obligations to make all Tax
Benefit Payments due in a particular taxable year, the limitation on the
deduction, or the Tax Benefit Payments that may be made, as the case may be,
shall be taken into account or made for the Exchanging Member in the same
proportion as Tax Benefit Payments would have been made absent the limitations
in clauses (i) and (ii) of this paragraph, as applicable.


 


13

















 


ARTICLE IV.  TERMINATION


 


Section 4.01.  Early
Termination and Breach of Agreement.


 


(a)  The Corporation may terminate this Agreement with respect to
all of the Units held (or previously held and Exchanged) by all Members at any
time by paying to the Members the Early Termination Payment; provided, however,
that this Agreement shall only terminate upon the receipt of the Early
Termination Payment by all Members, and provided, further, that the Corporation
may withdraw any notice to execute its termination rights under this Section 4.01(a) prior
to the time at which any Early Termination Payment has been paid.  Upon payment of the Early Termination
Payments by the Corporation, neither the Members nor the Corporation shall have
any further payment obligations under this Agreement, other than for any (a) Tax
Benefit Payment agreed to by the Corporation and the Member as due and payable
but unpaid as of the Early Termination Notice and (b) Tax Benefit Payment
due for the Taxable Year ending with or including the date of the Early
Termination Notice (except to the extent that the amount described in clause (b) is
included in the Early Termination Payment). 
For the avoidance of doubt, if an Exchange occurs after the Corporation
makes the Early Termination Payments with respect to all Members, the
Corporation shall have no obligations under this Agreement with respect to such
Exchange, and its only obligations under this Agreement in such case shall be
its obligations to all Members under Section 4.03(a).


 


(b)  In the event that the Corporation breaches any of its material
obligations under this Agreement, whether as a result of failure to make any
payment when due, failure to honor any other material obligation required
hereunder or by operation of law as a result of the rejection of this Agreement
in a case commenced under the Bankruptcy Code or otherwise, then all
obligations hereunder shall be accelerated and such obligations shall be
calculated as if an Early Termination Notice had been delivered on the date of
such breach and shall include, but shall not be limited to, (1) the Early
Termination Payment calculated as if an Early Termination Notice had been
delivered on the date of a breach, (2) any Tax Benefit Payment agreed to
by the Corporation and any Members as due and payable but unpaid as of the date
of a breach, and (3) any Tax Benefit Payment due for the Taxable Year
ending with or including the date of a breach. 
Notwithstanding the foregoing, in the event that the Corporation
breaches this Agreement, the Members shall be entitled to elect to receive the
amounts set forth in clauses (1), (2) and (3) above or to seek
specific performance of the terms hereof. 
The parties agree that the failure to make any payment due pursuant to
this Agreement within three months of the date such payment is due shall be
deemed to be a breach of a material obligation under this Agreement for all
purposes of this Agreement, and that it will not be considered to be a breach
of a material obligation under this Agreement to make a payment due pursuant to
this Agreement within three months of the date such payment is due.


 


(c)  The Corporation, Holdings and each of the Members hereby
acknowledge that, as of the date of this Agreement, the aggregate value of the
Tax Benefit Payments cannot reasonably be ascertained for United States federal
income tax or other applicable Tax purposes.


 


Section 4.02.  Early
Termination Notice.  If the
Corporation chooses to exercise its right of early termination under Section 4.01
above, the Corporation shall deliver to each present or former Member notice of
such intention to exercise such right (“Early Termination Notice”) and a
schedule (the “Early Termination Schedule”) specifying the Corporation’s
intention to exercise such right and showing in reasonable detail the
calculation of the Early Termination Payment for that Member. The Early Termination
Schedule shall become final and binding on all parties unless the Member,
within 30 calendar days after 


 


14

















 


receiving the Early Termination Schedule, provides the
Corporation with notice of a material objection to such Schedule made in good
faith (“Material Objection Notice”). If the parties, for any reason, are
unable to successfully resolve the issues raised in such notice within 30
calendar days after receipt by the Corporation of the Material Objection
Notice, the Corporation and the Member shall employ the Reconciliation
Procedures as described in Section 7.09 of this Agreement.


 


Section 4.03.  Payment
upon Early Termination.  (a) Within
three calendar days after agreement between the Member and the Corporation of
the Early Termination Schedule, the Corporation shall pay to the Member an
amount equal to the Early Termination Payment. Such payment shall be made by
wire transfer of immediately available funds to a bank account designated by
the Member.


 


(b)  The “Early Termination Payment” as of the date of the
delivery of an Early Termination Schedule shall equal with respect to any
Member the sum of (i) the present value, discounted at the Early
Termination Rate as of such date, of all Tax Benefit Payments that would be
required to be paid by the Corporation to the Member beginning from the Early
Termination Date and assuming that the Valuation Assumptions are applied and (ii) without
duplication of any amounts referred to in (i), amounts deferred pursuant to Section 3.01(c) (including
interest).


 


ARTICLE V.  SUBORDINATION AND LATE PAYMENTS


 


Section 5.01.  Subordination.  Notwithstanding any other provision of this
Agreement to the contrary, any Tax Benefit Payment or Early Termination Payment
required to be made by the Corporation to the Members under this Agreement (an “Exchange
Payment”) shall rank subordinate and junior in right of payment to any
principal, interest or other amounts due and payable in respect of any
obligations in respect of indebtedness for borrowed money of the Corporation
and its Subsidiaries (“Senior Obligations”) and shall rank pari passu
with all current or future unsecured obligations of the Corporation that are
not Senior Obligations.


 


Section 5.02.  Late
Payments by the Corporation.  The
amount of all or any portion of any Exchange Payment not made to any Member
when due under the terms of this Agreement shall be payable together with any
interest thereon, computed at the Default Rate and commencing from the date on
which such Exchange Payment was due and payable.


 


ARTICLE VI.  NO DISPUTES; CONSISTENCY; COOPERATION


 


Section 6.01.  Original
Member Participation in the Corporation’s and Holdings’s Tax Matters.
Except as otherwise provided herein, the Corporation shall have full
responsibility for, and sole discretion over, all Tax matters concerning the
Corporation and Holdings, including without limitation the preparation, filing
or amending of any Tax Return and defending, contesting or settling any issue
pertaining to Taxes. Notwithstanding the foregoing, the Corporation shall
notify the applicable Original Member of, and keep the applicable Original
Member reasonably informed with respect to, the portion of any audit of the
Corporation and Holdings by a Taxing Authority the outcome of which is
reasonably expected to affect the applicable Original Member’s rights and
obligations under this Agreement, and shall provide to the applicable Original
Member reasonable opportunity to 


 


15

















 


provide information and other input to the
Corporation, Holdings and their respective advisors concerning the conduct of
any such portion of such audit; provided, however, that the Corporation and
Holdings shall not be required to take any action that is inconsistent with any
provision of the LLC Agreement.


 


Section 6.02.  Consistency.  Except upon the written advice of an Advisory
Firm, and except for items that are explicitly described as “deemed” or in
similar manner by the terms of this Agreement, the Corporation and the
Exchanging Member agree to report and cause to be reported for all purposes,
including federal, state, local and foreign Tax purposes and financial
reporting purposes, all Tax-related items (including without limitation the
Basis Adjustment and each Tax Benefit Payment) in a manner consistent with that
specified by the Corporation in any Schedule required to be provided by or on
behalf of the Corporation under this Agreement. Any dispute concerning such
advice shall be subject to the terms of Section 7.09; provided, however,
that only an Original Member shall have the right to object to such advice
pursuant to this Section 6.02. In the event that an Advisory Firm is
replaced with another firm acceptable to the Corporation and the Exchanging
Member, such replacement Advisory Firm shall be required to perform its
services under this Agreement using procedures and methodologies consistent
with the previous Advisory Firm, unless otherwise required by law or the
Corporation and the Exchanging Member agree to the use of other procedures and
methodologies.


 


Section 6.03.  Cooperation.
The Exchanging Member shall (a) furnish to the Corporation in a timely
manner such information, documents and other materials as the Corporation may
reasonably request for purposes of making any determination or computation
necessary or appropriate under this Agreement (including whether an exchange of
units is taxable or tax-free, preparing any Tax Return or contesting or
defending any audit, examination or controversy with any Taxing Authority, (b) make
itself available to the Corporation and its representatives to provide
explanations of documents and materials and such other information as the
Corporation or its representatives may reasonably request in connection with
any of the matters described in clause (a) above, and (c) reasonably
cooperate in connection with any such matter, and the Corporation shall
reimburse the Exchanging Member for any reasonable third-party costs and
expenses incurred pursuant to this Section.


 


ARTICLE VII.  MISCELLANEOUS


 


Section 7.01.  Notices.
All notices, requests, claims, demands and other communications hereunder shall
be in writing and shall be deemed duly given and received (a) on the date
of delivery if delivered personally, or by facsimile upon confirmation of
transmission by the sender’s fax machine if sent on a Business Day (or
otherwise on the next Business Day) or (b) on the first Business Day
following the date of dispatch if delivered by a recognized next-day courier
service. All notices hereunder shall be delivered as set forth below, or
pursuant to such other instructions as may be designated in writing by the
party to receive such notice:


 


if to the Corporation, to:


 


16

















 


DynaVox Inc.


2100 Wharton Street


Suite 400

Pittsburgh, PA 15203

Attention: Chief Financial Officer

Fax: (412) 381-5241


 


with a copy (which shall not constitute notice to the Corporation) to:


 


Simpson Thacher &
Bartlett LLP


425 Lexington Avenue


New York, New York 10017


Attention: Joshua Ford
Bonnie


Facsimile: (212) 455-2502


 


if to Holdings, to:


 


DynaVox Systems Holdings LLC


2100 Wharton Street


Suite 400


Pittsburgh,
PA 15203


Attention:
Chief Financial Officer


Fax:
(412) 381-5241


 


with a copy (which shall not constitute notice to the Corporation) to:


 


Simpson Thacher &
Bartlett LLP


425 Lexington Avenue


New York, New York 10017


Attention: Joshua Ford
Bonnie


Facsimile: (212) 455-2502


 


If to the Exchanging Member, to:


 


The address and facsimile number set forth in the records of Holdings.


 


Any party may change its address or fax number by giving the other party
written notice of its new address or fax number in the manner set forth above.


 


Section 7.02.  Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Agreement.


 


17

















 


Section 7.03.  Entire
Agreement; No Third Party Beneficiaries. This Agreement constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
This Agreement shall be binding upon and inure solely to the benefit of each
party hereto and their respective successors and permitted assigns, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other Person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.


 


Section 7.04.  Governing
Law. This Agreement shall be governed by, and construed in accordance with,
the law of the State of Delaware, without regard to the conflicts of laws
principles thereof that would mandate the application of the laws of another
jurisdiction.


 


Section 7.05.  Severability.
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest extent
possible.


 


Section 7.06.  Successors;
Assignment; Amendments; Waivers. No Member may assign this Agreement to any
person without the prior written consent of the Corporation; provided, however,
that (i) to the extent Units are effectively transferred in accordance
with the terms of the LLC Agreement, the transferring Member shall have the
option to assign to the transferee of such Units the transferring Member’s
rights under this Agreement with respect to such transferred Units, as long as
such transferee has executed and delivered, or, in connection with such
transfer, executes and delivers, a joinder to this Agreement, in form and
substance reasonably satisfactory to the Corporation, agreeing to become a “Member”
for all purposes of this Agreement, except as otherwise provided in such
joinder, and (ii) once an Exchange has occurred, any and all payments that
may become payable to a Member pursuant to this Agreement with respect to the
Exchanged Units may be assigned to any Person or Persons, including a
liquidating trust, as long as any such Person has executed and delivered, or,
in connection with such assignment, executes and delivers, a joinder to this
Agreement, in form and substance reasonably satisfactory to the Corporation,
agreeing to be bound by Section 7.12 and acknowledging specifically the
terms of the next paragraph. For the avoidance of doubt, if a Person transfers
Units (regardless of whether the transferee is a “Permitted Transferee” under
the terms of the LLC Agreement) but does not assign to the transferee of such
Units such Person’s rights, if any, under this Agreement with respect to such
transferred Units, such Person shall be entitled to receive the Tax Benefit
Payments, if any, due hereunder with respect to, including any Tax Benefit
Payments arising in respect of a subsequent Exchange of, such Units.


 


Notwithstanding the foregoing provisions of this Section 7.06, no
transferee described in clause (i) of the immediately preceding paragraph
shall have the right to enforce the provisions of Section 2.04, 4.02, 6.01
or 6.02 of this Agreement, and no assignee described in clause (ii) of the
immediately preceding paragraph shall have any rights under 


 


18

















 


this Agreement except for the right to enforce its
right to receive payments under this Agreement.


 


No provision of this Agreement may be amended unless such amendment is
approved in writing by each of the Corporation and Holdings and by Original
Members who would be entitled to receive at least two-thirds of the Early
Termination Payments payable to all Original Members hereunder if the
Corporation had exercised its right of early termination on the date of the
most recent Exchange prior to such amendment (excluding, for purposes of this
sentence, all payments made to any Original Member pursuant to this Agreement
since the date of such most recent Exchange); provided, that no such amendment
shall be effective if such amendment will have a disproportionate effect on the
payments certain Members will or may receive under this Agreement unless all
such Members disproportionately affected consent in writing to such amendment.
No provision of this Agreement may be waived unless such waiver is in writing
and signed by the party against whom the waiver is to be effective.


 


All of the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the parties hereto
and their respective successors, assigns, heirs, executors, administrators and
legal representatives. The Corporation shall require and cause any direct or
indirect successor (whether by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Corporation, by
written agreement, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent that the Corporation would be required
to perform if no such succession had taken place.  Notwithstanding anything to the contrary
herein, in the event an Original Member transfers his Units to a Permitted
Transferee (as defined in the LLC Agreement), excluding any other Original
Member, such Original Member shall have the right, on behalf of such
transferee, to enforce the provisions of Sections 2.04, 4.02 or 6.01 with
respect to such transferred Units.


 


Section 7.07.  Titles
and Subtitles.  The titles of the
sections and subsections of this Agreement are for convenience of reference
only and are not to be considered in construing this Agreement.


 


Section 7.08.  Resolution
of Disputes.


 


(a)  Any and all disputes which are not governed by Section 7.09,
including but not limited to any ancillary claims of any party, arising out of,
relating to or in connection with the validity, negotiation, execution,
interpretation, performance or non-performance of this Agreement (including the
validity, scope and enforceability of this arbitration provision) (each a “Dispute”)
shall be finally settled by arbitration conducted by a single arbitrator in New
York in accordance with the then-existing Rules of Arbitration of the
International Chamber of Commerce. If the parties to the Dispute fail to agree
on the selection of an arbitrator within ten (10) days of the receipt of
the request for arbitration, the International Chamber of Commerce shall make
the appointment. The arbitrator shall be a lawyer admitted to the practice of
law in the State of New York and shall conduct the proceedings in the English
language. Performance under this Agreement shall continue if reasonably
possible during any arbitration proceedings. 
In addition to monetary damages, the arbitrator shall be empowered to
award equitable relief, including, but not limited to an injunction and
specific performance of any obligation under this Agreement. The arbitrator is
not empowered to award damages in excess of compensatory damages, and each
party hereby irrevocably waives any right to recover punitive, exemplary or
similar damages with respect to any 


 


19

















 


Dispute.   The
award shall be final and binding upon the parties as from the date rendered,
and shall be the sole and exclusive remedy between the parties regarding any
claims, counterclaims, issues, or accounting presented to the arbitral
tribunal.  Judgment upon any award may be
entered and enforced in any court having jurisdiction over a party or any of
its assets.


 


(b)  Notwithstanding the provisions of paragraph (a), the
Corporation may bring an action or special proceeding in any court of competent
jurisdiction for the purpose of compelling a party to arbitrate, seeking
temporary or preliminary relief in aid of an arbitration hereunder, and/or
enforcing an arbitration award and, for the purposes of this paragraph (b),
each Member (i) expressly consents to the application of paragraph (c) of
this Section 7.08 to any such action or proceeding, (ii) agrees that
proof shall not be required that monetary damages for breach of the provisions
of this Agreement would be difficult to calculate and that remedies at law
would be inadequate, and (iii) irrevocably appoints the Corporation as
such Member’s agent for service of process in connection with any such action
or proceeding and agrees that service of process upon such agent, who shall
promptly advise such Member of any such service of process, shall be deemed in
every respect effective service of process upon the Member in any such action
or proceeding.


 


(c)  (i)  EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF COURTS LOCATED IN NEW YORK, NEW YORK FOR THE PURPOSE OF ANY
JUDICIAL PROCEEDING BROUGHT IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (B) OF
THIS SECTION 7.08, OR ANY JUDICIAL PROCEEDING ANCILLARY TO AN ARBITRATION
OR CONTEMPLATED ARBITRATION ARISING OUT OF OR RELATING TO OR CONCERNING THIS
AGREEMENT. Such ancillary judicial proceedings include any suit, action or
proceeding to compel arbitration, to obtain temporary or preliminary judicial
relief in aid of arbitration, or to confirm an arbitration award. The parties
acknowledge that the fora designated by this paragraph (c) have a
reasonable relation to this Agreement, and to the parties’ relationship with
one another; and


 


(ii)  The parties hereby waive, to the fullest extent permitted by
applicable law, any objection which they now or hereafter may have to personal
jurisdiction or to the laying of venue of any such ancillary suit, action or
proceeding brought in any court referred to in paragraph (c)(i) of this Section 7.08
and such parties agree not to plead or claim the same.


 


Section 7.09.  Reconciliation.
In the event that the Corporation and the Exchanging Member are unable to
resolve a disagreement with respect to the matters governed by Sections 2.04,
4.02 and 6.02 within the relevant period designated in this Agreement (“Reconciliation
Dispute”), the Reconciliation Dispute shall be submitted for determination
to a nationally recognized expert (the “Expert”) in the particular area
of disagreement mutually acceptable to both parties. The Expert shall be a
partner in a nationally recognized accounting firm or a law firm (other than
the Advisory Firm), and the Expert shall not, and the firm that employs the
Expert shall not, have any material relationship with either the Corporation or
the Exchanging Member or other actual or potential conflict of interest. If the
parties are unable to agree on an Expert within fifteen (15) days of receipt by
the respondent(s) of written notice of a Reconciliation Dispute, the
Expert shall be appointed by the International Chamber of Commerce Centre for
Expertise. The Expert shall resolve any matter relating to the Exchange Basis
Schedule or an amendment


 


20














 


thereto or the Early Termination Schedule or an
amendment thereto within 30 calendar days and shall resolve any matter relating
to a Tax Benefit Schedule or an amendment thereto within 15 calendar days or as
soon thereafter as is reasonably practicable, in each case after the matter has
been submitted to the Expert for resolution. 
Notwithstanding the preceding sentence, if the matter is not resolved
before any payment that is the subject of a disagreement would be due (in the
absence of such disagreement) or any Tax Return reflecting the subject of a
disagreement is due, the undisputed amount shall be paid on such date and such
Tax Return may be filed as prepared by the Corporation, subject to adjustment
or amendment upon resolution.  The costs
and expenses relating to the engagement of such Expert or amending any Tax
Return shall be borne by the Corporation except as provided in the next
sentence.  The Corporation and each
Exchanging Member shall bear their own costs and expenses of such proceeding,
unless an Exchanging Member has a prevailing position that is more than 10% of
the payment at issue, in which case the Corporation shall reimburse such
Exchanging Member for any reasonable out-of-pocket costs and expenses in such
proceeding.  Any dispute as to whether a
dispute is a Reconciliation Dispute within the meaning of this Section 7.09
shall be decided by the Expert.  The
Expert shall finally determine any Reconciliation Dispute and the
determinations of the Expert pursuant to this Section 7.09 shall be binding
on the Corporation and the Exchanging Member and may be entered and enforced in
any court having jurisdiction.


 


Section 7.10.  Withholding.
The Corporation shall be entitled to deduct and withhold from any payment
payable pursuant to this Agreement such amounts as the Corporation is required
to deduct and withhold with respect to the making of such payment under the
Code or any provision of state, local or foreign tax law. To the extent that
amounts are so withheld and paid over to the appropriate Taxing Authority by
the Corporation, such withheld amounts shall be treated for all purposes of
this Agreement as having been paid to the Exchanging Member.


 


Section 7.11.  Admission
of the Corporation into a Consolidated Group; Transfers of Corporate Assets.


 


(a)  If the Corporation becomes a member of an affiliated or
consolidated group of corporations that files a consolidated income tax return
pursuant to Sections 1501 et seq. of the Code or any corresponding provisions
of state, local or foreign law, then: (i) the provisions of this Agreement
shall be applied with respect to the group as a whole; and (ii) Tax
Benefit Payments, Early Termination Payments and other applicable items
hereunder shall be computed with reference to the consolidated taxable income
of the group as a whole.


 


(b)  If any entity that is obligated to make an Exchange Payment
hereunder transfers one or more assets to a corporation with which such entity
does not file a consolidated tax return pursuant to Section 1501 of the
Code, such entity, for purposes of calculating the amount of any Exchange
Payment (e.g., calculating the gross income of the entity and determining the
Realized Tax Benefit of such entity) due hereunder, shall be treated as having
disposed of such asset in a fully taxable transaction on the date of such
contribution.  The consideration deemed
to be received by such entity shall be equal to the Fair Market Value of the
contributed asset, plus (i) the amount of debt to which such asset is
subject, in the case of a contribution of an encumbered asset or (ii) the
amount of debt allocated to such asset, in the case of a contribution of a
partnership interest.


 


21

















 


Section 7.12.  Confidentiality.  Each Member and assignee acknowledges and
agrees that the information of the Corporation is confidential and, except in
the course of performing any duties as necessary for the Corporation and its
Affiliates, as required by law or legal process or to enforce the terms of this
Agreement, such person shall keep and retain in the strictest confidence and
not disclose to any Person any confidential matters, acquired pursuant to this
Agreement, of the Corporation and its Affiliates and successors, concerning
Holdings and its Affiliates and successors or the other Members, learned by the
Member heretofore or hereafter.  This
clause 7.12 shall not apply to (i) any information that has been made
publicly available by the Corporation or any of its Affiliates, becomes public
knowledge (except as a result of an act of such Member in violation of this
Agreement) or is generally known to the business community and (ii) the
disclosure of information to the extent necessary for a Member to prepare and
file his or her Tax returns, to respond to any inquiries regarding the same
from any taxing authority or to prosecute or defend any action, proceeding or
audit by any taxing authority with respect to such returns.  Notwithstanding anything to the contrary
herein, each Member and assignee (and each employee, representative or other
agent of such Member or assignee, as applicable) may disclose to any and all
Persons, without limitation of any kind, the tax treatment and tax structure of
the Corporation, Holdings, the Members and their Affiliates, and any of their
transactions, and all materials of any kind (including opinions or other tax
analyses) that are provided to the Members relating to such tax treatment and
tax structure.


 


If a Member or assignee commits a breach, or threatens to commit a
breach, of any of the provisions of this Section 7.12, the Corporation
shall have the right and remedy to have the provisions of this Section 7.12
specifically enforced by injunctive relief or otherwise by any court of
competent jurisdiction without the need to post any bond or other security, it
being acknowledged and agreed that any such breach or threatened breach shall
cause irreparable injury to the Corporation or any of its Subsidiaries or the
other Members and the accounts and funds managed by the Corporation and that
money damages alone shall not provide an adequate remedy to such Persons.  Such rights and remedies shall be in addition
to, and not in lieu of, any other rights and remedies available at law or in
equity.


 


Section 7.13.  LLC
Agreement. This Agreement shall be treated as part of the partnership
agreement of Holdings as described in Section 761(c) of the Internal
Revenue Code of 1986, as amended, and Sections 1.704-1(b)(2)(ii)(h) and
1.761-1(c) of the Treasury Regulations.


 


Section 7.14.  Partnerships.
The Corporation hereby agrees that, to the extent it acquires a general
partnership interest, managing member interest or similar interest in any
Person after the date hereof, it shall cause such Person to execute and deliver
a joinder to this Agreement and such Person shall be treated as a “partnership”
for all purposes of this Agreement.


 


Section 7.15.  Independent Nature of Members’ Rights and
Obligations.  The obligations of each
Member hereunder are several and not joint with the obligations of any other
Member, and no Member shall be responsible in any way for the performance of
the obligations of any other Member under hereunder.  The decision of each Member to enter into to
this Agreement has been made by such Member independently of any other Member.
Nothing contained herein, and no action taken by any Member pursuant hereto,
shall be deemed to constitute the Members as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Members are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated hereby and the Corporation
acknowledges that the Members are not acting in concert or as a group, and the
Corporation will not assert any such claim, with respect to such obligations or
the transactions contemplated hereby.


 


22

















 


IN WITNESS WHEREOF, the Corporation, Holdings and each Member have duly
executed this Agreement as of the date first written above.


 


 


	
   

  	
  DYNAVOX INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
   

  	
  DYNAVOX SYSTEMS HOLDINGS LLC

  
	
   

  	
  By its Managing Member, DynaVox Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
   

  	
  MEMBERS

  
	
   

  	
   

  
	
   

  	
  Each Member set forth on Annex A hereto

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: Attorney-in-fact

  



 


23

















 


EXHIBIT A


 


JOINDER


 


This JOINDER (this “Joinder”) to the Tax Receivable Agreement, dated as
of            , by and among DynaVox
Inc., a Delaware corporation (the “Corporation”), DynaVox Systems Holdings LLC,
a Delaware limited liability company (“Holdings”) and 
                                (“Permitted Transferee”).


 


WHEREAS, on            , Permitted
Transferee acquired (the “Acquisition”)      
Units in Holdings and the corresponding shares of Class B common
stock of the Corporation (collectively, “Interests” and, together with all
other Interests hereinafter acquired by Permitted Transferee from Transferor
and its Permitted Transferees (as defined in the Tax Receivable Agreement), the
“Acquired Interests”) from
                          
(“Transferor”); and


 


WHEREAS, Transferor, in connection with the Acquisition, has required
Permitted Transferee to execute and deliver this Joinder pursuant to Section 7.06
of the Tax Receivable Agreement.


 


NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, Permitted Transferee hereby agrees as follows:


 


Section 1.1.  Definitions.  To the extent capitalized words used in this
Joinder are not defined in this Joinder, such words shall have the meaning set
forth in the Tax Receivable Agreement.


 


Section 1.2.  Joinder.  Permitted Transferee hereby acknowledges and
agrees to become a “Member” (as defined in the Tax Receivable Agreement) for
all purposes of the Tax Receivable Agreement, including but not limited to,
being bound by Sections 7.12, 2.04, 4.02, 6.01 and 6.02 of the Tax Receivable
Agreement, with respect to the Acquired Interests, and any other Interests
Permitted Transferee acquires hereafter.


 


Section 1.3.  Notice.  All notices, requests, consents and other
communications hereunder to Permitted Transferee shall be deemed to be
sufficient if contained in a written instrument delivered in person or sent by
facsimile (provided a copy is thereafter promptly delivered as provided in this
Section 1.3) or nationally recognized overnight courier, addressed to
Permitted Transferee at the address or facsimile number set forth below or such
other address or facsimile number as may hereafter be designated in writing by
Permitted Transferee:


 


Section 1.4.  Governing
Law.  THIS JOINDER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF.


 

















 


IN WITNESS WHEREOF, this Joinder has been duly executed and delivered by
Permitted Transferee as of the date first above written.


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: