exv10w4



 





Exhibit 10.4



EMPLOYMENT-AT-WILL AGREEMENT


between


ORBIMAGE HOLDINGS INC.


and


Henry E. Dubois


Effective as of January 3, 2006



To Henry E. Dubois:




1.      Employment By The Company.




          1.1 Subject to terms set forth herein, the Company agrees to continue to employ you as an
employee-at-will in the capacity of Executive Vice President and Chief Financial Officer. In this
position, you will report to the Company’s Chief Executive Officer, and be charged with supervising
the general financial operations of the Company.




2.     Compensation & Benefits.





	 	2.1	 	Salary. You will receive an initial gross base annual salary of $250,000,
which will be paid and reviewed in accordance with standard Company policy (current
payment policy is bi-weekly; current review cycles are annual).
	 
	 	2.2	 	Company Benefits.






	 	2.2.1	 	You will be entitled to all rights and benefits for which you
are eligible under the terms and conditions of the standard Company benefits
and compensation practices which may be in effect from time to time and
provided by the Company to its employees in senior executive positions (the
“Company Benefits”).
	 
	 	2.2.2	 	The Company will pay up to $1,500 in premiums annually toward
your company provided life insurance coverage. Such coverage will be in the
amount of $900,000, subject to the continuing approval of the Company’s life
insurance carrier.
	 
	 	2.2.3	 	To the extent allowed by the Company’s 401(k) plan, your
commencement of employment for purposes of vesting will date from July 1, 2005,
which both you and the Company agree was the date on which the nature of your
services were shifted from a casual or temporary basis to a full time basis.
	 
	 	2.2.4	 	You will be entitled to reimbursement of moving expenses up to
$100,000 for documented expenses. Such reimbursement will include, but not be
limited to, normal moving and relocation expenses (as detailed in the




 









 






	 	 	 	Company’s standard relocation policy), closing costs associated with the
sale of one existing home and the closing costs (including points)
associated with the purchase of one home within the geographic vicinity of
the Company’s Dulles, Virginia office, costs associated with temporary
housing within the geographic vicinity of the Company’s Dulles, Virginia
office, expenses relating to commuting to your house in Vermont for up to
six months from the date hereof, and other legitimate expenses associated
with relocation to the geographic vicinity of the Company’s Dulles, Virginia
office. Please note that some relocation expenses are considered income by
the IRS. ORBIMAGE is required to withhold federal, FICA, and state taxes on
these taxable relocation expenses. All such taxes will be withheld at the
time of employee reimbursement. Eligible third party payments such as
temporary housing will be taxed on the following payday and will be withheld
from your paycheck.






	 	2.3	 	Severance. You will be entitled to the severance benefits (“Severance
Benefits”) described in Section 6 below, subject to the other terms and conditions
of this Agreement.
	 
	 	2.4	 	Bonuses. You will be eligible to receive an annual bonus of 50% of your base
salary at target, subject to adjustment based upon the Company’s performance as shown
on Appendix A hereto. 50% of your annual bonus will be paid in common stock of the
Company and the remainder will be paid in cash. You may elect to receive a higher
proportion of your bonus in common stock. For the purpose of calculating the number of
shares of common stock to be issued, the value of such shares of common stock shall be
the “Fair Market Value” of such shares as defined in the Company’s 2003 Employee Stock
Incentive Plan. Payment of bonuses will be made in accordance with the Company’s
standard policy for payment of executive bonuses.
	 
	 	2.5	 	Stock Grants






	 	2.5.1	 	Restricted Stock. On the latter of the date that you commence
your employment or the date on which the Company’s registration statement on
Form S-8 becomes effective, the Board of Directors of the Company will issue
5,000 shares of restricted common stock of the Company to you pursuant to the
Company’s 2003 Stock Incentive Plan. The Company will also pay you up to
$50,000 to cover the costs of an 83(b) election on such shares, inclusive of
amounts necessary to gross up for income, employment or other similar tax
purposes. To the extent less than $50,000 is required for the inclusive costs
associated with such 83(b) election, the Company will issue additional shares
of restricted common stock and pay an amount necessary to cover the taxes due
for the 83(b) election (inclusive of income, employment and similar taxes),
until the total of the




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	 	 	 	Fair Market Value (as defined in the Plan) of all such additional shares and
the total amounts paid for the 83(b) election for all shares issued
hereunder equals $50,000. All such shares (subject to changes set forth in
a separate Restricted Stock Agreement to be entered into between you and the
Company), will vest on January 1, 2009. You will be granted “piggyback”
registration rights for such shares on any registration statement under the
Securities Act of 1933, as amended, registering common stock for sale filed
by the Company, subject to the cutback rights of the Company or the holders
for whom such registration statement is filed; provided that to the extent
one or more registration statements are filed before December 31, 2006, at
least one shall include your shares if you have so requested.
	 
	 	2.5.2	 	Stock Options. On the date that you commence you employment,
you will be granted options to purchase 22,500 shares under the Company’s 2003
Employee Stock Incentive Plan, with a strike price of the “Fair Market Value”
on the date of such grant. Of such options (subject to changes set forth in a
separate Option Agreement to be entered into between you and the Company), 25%
will vest on each December 31 beginning with December 31, 2006. You will be
granted “piggyback” registration rights for the shares underlying such options
on any registration statement under the Securities Act of 1933, as amended,
registering common stock for sale filed by the Company, subject to the cutback
rights of the Company or the holders for whom such registration statement is
filed; provided that to the extent one or more registration statements are
filed before December 31, 2005, at least one shall include your shares if you
have so requested..
	 
	 	2.5.3	 	Additional Awards. You will be eligible for additional grants
of options and restricted stock under the Company’s 2003 Employee Stock
Incentive Plan and future plans as determined by the Compensation Committee of
the Company’s Board of Directors in its sole discretion.
	 
	 	2.5.4	 	Tax Gross Up; Consultant Restricted Stock. In order to avoid
the necessity of sales of stock by you to cover income tax due on “dry income”
caused by the issuance to you of stock as required by the consulting
arrangement between you and the Company prior to your employment as Chief
Financial Officer, the Company and you agree to the provisions of this section.
On the date on which the Company’s registration statement on Form S-8 becomes
effective, the Board of Directors of the Company will issue 3,000 shares of
restricted common stock of the Company to you pursuant to the Company’s 2003
Stock Incentive Plan and the Company will also pay you $24,000 to cover taxes
associated with such shares, including the costs of an 83(b) election on such
shares. You will be granted “piggyback” registration rights for such




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	 	 	 	shares on any registration statement under the Securities Act of 1933, as
amended, registering common stock for sale filed by the Company, subject to
the cutback rights of the Company or the holders for whom such registration
statement is filed; provided that to the extent one or more registration
statements are filed before December 31, 2006, at least one shall include
your shares if you have so requested.





3.     Proprietary Information Obligations.





	 	3.1	 	Confidentiality. You agree that all Confidential Information will be held in
complete confidence and that you will not, during your employment with the Company,
except in the performance of your duties to the Company, or at any time after the
termination of your employment with the Company, disclose to any person (other than the
Company or its affiliates), or use for your own account, without the prior written
consent of the Company, any Confidential Information. For purposes of this Agreement,
the term “Confidential Information” shall mean information relating to the
business and affairs of the Company or any of its affiliates that is of a confidential
nature.
	 
	 	3.2	 	Ownership of Trade Secrets, etc.






(a) All non-public written materials, records and documents made by you or coming
into your possession during your employment with the Company concerning the business
or affairs of the Company or any of its affiliates, except for personal, financial,
or legal records, shall be the sole property of the Company and its affiliates. Upon
the termination of your employment with the Company or upon the earlier request of
the Company during your employment with the Company, you shall promptly deliver the
same to the Company (or its designee).




(b) You agree that any trade secret, invention, improvement, patent, patent
application or writing, and any program, system or novel technique (whether or not
capable of being trademarked, copyrighted or patented) conceived, developed or
otherwise obtained by you during your employment with the Company relating to the
business, property, methods, suppliers or customers of the Company or any of its
affiliates shall be the property of the Company and its affiliates; and you agree to
give the Company prompt written notice of your conception, invention, authorship,
development or acquisition of any such trade secret, invention, improvement, patent,
patent application or writing, and any program, system or novel technique and to
execute such instruments of transfer, assignment, conveyance or confirmation and
such other documents and to do all appropriate lawful acts as may be required by the
Company to transfer, assign, confirm and perfect in the Company all legally
protectible rights in any such trade secret, invention, improvement, patent, patent
application, writing, program, system or novel technique.



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(c) You represent and warrant that the execution and delivery by you of this
Agreement and the performance by you of your obligations hereunder will not, with or
without the giving of notice or the passage of time, (i) to the best of your
knowledge, violate any judgment, writ, injunction or order of any court, arbitrator
or governmental agency applicable to you or (ii) conflict with, result in the breach
of any provisions of or the termination of, or constitute default under, any
agreement to which you are a party or by which you are or may be bound, including,
but not limited to, any employment, confidentiality, non-competition or
non-solicitation agreement entered into between you and any previous employer. You
agree to indemnify and hold the Company harmless from and against any and all claims
for losses, liabilities, damages, costs and expenses which may arise or result from
the violation of any such judgment, writ, injunction or order or the breach of any
such agreement referred to in the immediately preceding sentence. You have
heretofore provided the Company with copies of any relevant, non-confidential
agreement referred to in (ii) above to which you are bound.




	 	3.3	 	Remedies. Your duties under this Section 3 shall survive termination of your
employment with the Company. You acknowledge that a remedy at law for any breach or
threatened breach by you of the provisions of this Section would be inadequate, and you
agree that the Company shall be entitled to injunctive relief in case of any such
breach or threatened breach.




4. Continuation Of Employment/Restrictive Covenant. During the term of your employment
and for a period of twelve (12) months immediately following your termination, you shall not,
without first obtaining the prior written approval of the Company, directly or indirectly engage or
prepare to engage, in any activities in competition with the Company, or accept a management-level
position or establish a business relationship (such as management consulting) with a business or
business unit over 50% of whose gross annual revenues arise from the collection, processing or sale
of remote sensing imagery products or services (including data extraction, imagery analysis and
production of imagery related products) in direct competition with the Company or solicit, induce
or otherwise cause any customers of the Company to terminate or reduce their relationship with the
Company. Such approval by the Company shall not be unreasonably withheld.



5. Nonsolicitation. While employed by the Company, and for twelve (12) months immediately
following your termination, you agree not to interfere with the business of the Company by
soliciting, attempting to solicit, inducing, or otherwise causing any employees of the Company to
terminate his or her employment.




6.      Termination Of Employment.





(a) Either you or the Company may terminate your employment relationship at any time for any
legal reason whatsoever, or for no reason, with or without Cause or advance notice. This
at-will employment relationship cannot be changed except in a writing approved by the Board.
If the Company terminates your employment without Cause at



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any time, or if you resign on the grounds that the company has materially breached this
agreement, you will receive as Severance Benefits: (i) regular bi-weekly payments equal to
your usual base salary, less payroll deductions and required withholdings, for twelve (12)
months (the “Severance Period”), (ii) a payment of that portion of the bonus, if
any, you are entitled to for the calendar year based upon performance for such year
pro-rated based upon the number of full months you were employed in such year, payable at
the time such amount would otherwise have been due ((i) and (ii) are sometimes collectively
referred to as the “Severance Payments”), and (iii) continuation of all group health
and life insurance benefits during the Severance Period, in exchange for the execution of a
release of all claims against the Company in form satisfactory to the Company.
Additionally, if you are terminated by the Company without Cause, to the extent permitted by
the Company’s 401(k) plan you will become immediately vested and, as set forth in the
separate agreements for the stock awards listed in 2.5.1 and 2.5.2 above, any unvested
portions of such grants will immediately vest. If you resign voluntarily for any reason
other than as specified above or if your employment is terminated for Cause, all
compensation and benefits will cease immediately, and you will receive no Severance
Benefits. Your “qualifying event” for purposes of Section 4980B of the Internal Revenue
Code of 1986, as amended (or any successor provision thereto), shall be your termination of
employment.




For purposes of this Agreement, “Cause” shall mean misconduct, including: (i)
commission of any felony or any crime involving moral turpitude or dishonesty; (ii)
participation in a fraud or act of dishonesty against the Company; (iii) willful breach or
gross negligence of the Company’s policies; (iv) intentional damage to the Company’s
property; (v) material breach of this Agreement; (vi) your failure or refusal in a material
respect to follow the reasonable policies or directions of the Company as specified by the
Chief Executive Officer or Board of Directors after being provided with notice of such
failure and an opportunity to cure within seven (7) days of receipt of such notice; (vii)
any other intentional act or omission which subjects the Company to substantial public
disrespect, scandal or ridicule or (viii) your failure to carry out the duties of your
position after being provided with notice of such failure and a reasonable opportunity to
cure. Disability shall not constitute Cause. For purposes of this Agreement,
“Disability” shall mean a disability that prevents you from substantially performing
your duties under this Agreement for a period of at least 45 consecutive days or 90
non-consecutive days within any 365-day period.




(b) In the event of death, the Company shall pay your designee any earned but unpaid salary
at the time of your death and, at the time such amount would otherwise have been due, a pro
rata portion of the bonus, if any, which may otherwise have been paid to you with respect to
the annual period in which the death occurs.



7.      General Provisions.




     7.1 Employment At-Will. Please understand that your employment with the Company is “at will,”
meaning that you may terminate your employment with the Company at



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any time and for any reason whatsoever simply by notifying the Company. Likewise, the Company
may terminate your employment at any time and for any legal reason, or for no reason, with or
without Cause or advance notice. This at-will relationship cannot be changed, nor may this
Agreement be amended, except in a writing signed by the President, Chief Executive Officer or Board
of Directors of the Company.




     7.2 Notices. Any notices provided hereunder must be in writing and shall be deemed effective
upon the earlier of personal delivery (including by e-mail or by telecopy) or the third day after
mailing by first class mail, to the Company at its primary office location and to you at your
address as listed on the Company’s then current payroll records.



     7.3 Severability. Whenever possible, each provision of this Agreement will 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 will not affect any
other provision or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable provisions had never
been contained herein.



     7.4 Waiver. If either party should waive any breach of any provisions of this Agreement, he,
she or it shall not thereby be deemed to have waived any preceding or succeeding breach of the same
or any other provision of this Agreement.



     7.5 Complete Agreement. Please also understand that your acceptance of this Agreement should
not be based on any promises or representations other than those contained in this Agreement. Any
promises contrary to the terms specified in this Agreement are superseded by this Agreement. This
Agreement and any written option agreements between you and the Company constitute the entire
agreement between you and the Company and supersede any prior agreements between you and the
Company.



     7.6 Successors and Assigns. This Agreement is intended to bind and inure to the benefit of
and be enforceable by you and the Company, and each party’s respective successors, assigns, heirs,
executors and administrators, except that you may not assign any of your duties hereunder and
neither party may assign any of its rights hereunder without the written consent of the other
party, which shall not be withheld unreasonably. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or
substantially all of the business and/or assets of the Company to execute an agreement pursuant to
which the successor expressly assumes all of the liabilities and obligations of the Company
hereunder and agrees to perform this Agreement in the same manner and to the same extent the
Company would be required to perform if no such succession had taken place. If any successor
declines to offer you employment, refuses to assume this Agreement or fails to perform its
obligations hereunder, you will be deemed terminated without Cause and will be entitled to the
Severance Payments.



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     7.7 Choice of Law. All questions concerning the construction, validity and interpretation of
this Agreement will be governed by the law of the Commonwealth of Virginia.



     7.8 Survival. The following provisions of this Agreement shall survive the termination of
your employment and the assignment of this Agreement by the Company to any successor in interest or
other assignee: Section 2; Section 3; Section 4 and Section 5.



     7.9 Injunctive Relief. You acknowledge that the restrictions set forth in Sections 3, 4 and 5
above are necessary to protect the Company’s confidential proprietary information and other
legitimate business interests and are reasonable in all respects, including duration, territory and
scope of activity restricted. You further acknowledge that the provisions of Sections 3, 4 and 5
hereof are essential to the Company, that the Company would not enter into this Agreement if it did
not include these provisions and that damages sustained by the Company as a result of a breach of
these provisions cannot be adequately remedied by damages, and You agree that the Company, in
addition to any other remedy it may have under this Agreement or at law, shall be entitled to
injunctive and other equitable relief to prevent or curtail any breach of Sections 3, 4, and 5 of
this Agreement. You agree that the existence of any claim or cause of action by you against the
Company or its affiliates, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of any of the provisions of Sections 3, 4, and 5
hereof.



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     In Witness Whereof, the parties have executed this Agreement as of the day and year
first above written.



ORBIMAGE INC.




	 	 	 	 	 
	By:

	 	                                                            
	 	 
	 

	 	Name: Matthew M. O’Connell
	 	 
	 

	 	Title: Chief Executive Officer	 	 






EMPLOYEE:




	 	 	 	 	 
	By:

	 	                                                            
	 	 
	 

	 	Henry E. Dubois	 	 






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APPENDIX A




ANNUAL BONUS PERFORMANCE TARGETS



For each fiscal year, the annual bonus will be paid based on personal performance and the Company’s
performance measured against annual goals set by the CEO and Board of Directors (or the
compensation committee thereof) after consultation with you.





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