exv10w2w3



 





EXHIBIT 10.2.3


[***] in this exhibit
indicates that a confidential portion of the exhibit has been
omitted; such portion has been filed separately with the Securities
and Exchange Commission.




AMENDMENT NO. 3

TO AMENDED AND RESTATED DISTRIBUTION LICENSE AGREEMENT




     THIS AMENDMENT NO. 3 TO THE AMENDED AND RESTATED DISTRIBUTOR LICENSE
AGREEMENT (this “Amendment”) is made and entered into as of April 1, 2004, by
and between ORBIMAGE Inc. (f/k/a Orbital Imaging Corporation), a Delaware
corporation (“ORBIMAGE”), whose principal place of business is 21700 Atlantic
Boulevard, Dulles, Virginia 20166 United States of America, Korea Aerospace
Industries, Ltd., a corporation organized and existing under the law of Korea
(“Licensee”), whose principal place of business is 135, Seosomun-Dong, Jung-Gu,
Seoul 100-737 Korea, and [*************************************].



RECITALS




     WHEREAS, ORBIMAGE and Licensee are parties to that certain Amended and
Restated Distributor License Agreement, dated September 1, 2000, as amended by
Amendment No. 1 dated November 7, 2002 and Amendment No. 2 dated May 3, 2003
(collectively, the “Agreement”);



     WHEREAS, the Parties desire to amend the Agreement further to, among other
things, regularize the size of imaging windows and a related increase in the
total number of seconds of imaging time covered by the Agreement.



     NOW THEREFORE, in consideration of the foregoing recitals, which are
incorporated herein by this reference, the mutual covenants, agreements
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, agree as follows:



Article 1 – Amendments to Section 2 of the Agreement




     (a) ORBIMAGE and Licensee hereby amend Section 2 of the Agreement by
deleting Section 2(j) in its entirety and replacing it with the following:



     “j. Operational Capability Date: March 25, 2004.”



     (b) ORBIMAGE and Licensee hereby amend Section 2 of the Agreement by
deleting Section 2(p) in its entirety and replacing it with the following:



     “p. Territory: The territory set forth on Appendix C to the Standard
Operating Procedures, dated March 11, 2004.”



     (c) ORBIMAGE and Licensee hereby amend Section 2 of the Agreement by
inserting a new Section 2(q) reading in its entirety as follows:



     “q. Original Territory: North and South Korea, to include the 200 nautical
mile fishery conservation zone of North and South Korea.”



 









 





Article 2 – Amendments to Section 3 of the Agreement




     (a) ORBIMAGE and Licensee hereby amend Section 3 of the Agreement by
deleting Sections 3(a)(ii) and (iii) in their entirety and replacing with the
following:



               “(ii) an exclusive license during the term hereof to receive OrbView
Imagery of the Original Territory using the OrbView-3 Satellite on a priority
basis while such satellite is within the Effective Imaging Range during
boundary windows assigned to the Licensee. The foregoing license shall also
include the exclusive right to process and distribute OrbView Imagery of the
Territory (including OrbView Imagery of the Territory outside of the Original
Territory received pursuant to the non-exclusive license in (iii) below) solely
to Authorized Customers located in the Original Territory;



               “(iii) a non-exclusive license in the Territory to (A) receive OrbView
Imagery of the Territory (outside of the Original Territory) during the term
hereof to Authorized Customers in the Territory, subject in all respects to the
existing and future rights of other existing and future ORBIMAGE distributors,
(B) process and distribute OrbView Imagery of the Territory (outside of the
Original Territory) to Authorized Customers in the Territory, subject in all
respects to the existing and future rights of other existing and future
ORBIMAGE distributors, and (C) process and distribute OrbView Imagery of areas
of the world outside of the Territory during the term hereof to Authorized
Customers in the Territory, subject in all respects to the existing and future
rights of other existing and future ORBIMAGE distributors and the mutual
agreement between ORBIMAGE and Licensee regarding appropriate compensation;”



     (b) ORBIMAGE and Licensee hereby amend Section 3 of the Agreement by
deleting Section 3(a)(v) in its entirety and replacing with the following:



               “(v) a fully paid, non-exclusive license in the Territory during the term
hereof to use an appropriate collection planning system (i.e., modified version
of Squiggle or a differently named collection planning system which is
functionally the same) (the “CPS”) solely for the purpose of producing image
tasking orders for the OrbView-3 System in accordance with the terms and
subject to the conditions of this Agreement. The Licensee will use the CPS on
a stand alone basis. ORBIMAGE shall provide the CPS to Licensee at no charge
as soon as reasonably practicable after the Operational Capability Date, and
Licensee will be responsible for all costs and expenses of installation and
operation. ORBIMAGE will use its best efforts to provide the CPS to Licensee
by July 1, 2004, however, the parties acknowledge that this target date is
non-binding and ORBIMAGE’s failure to provide Licensee with the CPS by the
target date shall not constitute a breach or violation of this Agreement. If
the CPS is not provided to Licensee on or prior to July 1, 2004, ORBIMAGE will
begin good faith negotiations with Licensee to address the delay in providing
the CPS. ORBIMAGE will give Licensee periodic updates regarding the status of
the CPS’s development; and”



Article 3 – Amendments to Section 4 of the Agreement




 









 








     (a) ORBIMAGE and Licensee hereby amend Section 4 of the Agreement by
deleting Sections 4(a)(x) in its entirety and replacing with the following:



               “(x) Licensee must use the CPS to only create image tasking requests for
all of its imaging requests for the OrbView-3 System hereunder, and shall
forward such orders to ORBIMAGE’s ground facility in the United States in
accordance with ORBIMAGE’s Standard Operating Procedures in effect from time to
time. ORBIMAGE shall provide Licensee with a draft of the updated Standard
Operating Procedures to review as soon as possible after April 1, 2004
addressing the revised terms of the Agreement caused by Amendment No. 3 hereto.
Licensee shall also be responsible, at its expense, for procuring,
establishing and operating a communications link necessary for system
management purposes between the Licensee Ground Facility and the ORBIMAGE U.S.
ground facility;”



     (b) ORBIMAGE and Licensee hereby amend Section 4 of the Agreement by
deleting Section 4(a)(xii) in its entirety and replacing with the following:



               “(xii) Licensee shall not copy, modify, enhance, reverse engineer,
disclose, sell, distribute or re-license the CPS to any other person or entity.
Licensee shall only install and use the CPS at the Licensee Ground Facility.
Licensee agrees to promptly notify ORBIMAGE if Licensee becomes aware of any
unauthorized use of the CPS. Upon termination of this Agreement for any
reason, Licensee shall promptly return to ORBIMAGE the CPS and all related
hardware, software and documentation provided by ORBIMAGE. In the event of any
termination hereunder, Licensee further agrees that it shall not retain any
copies of the CPS and such ORBIMAGE proprietary software or related
documentation for any reason whatsoever; and,”



     (c) ORBIMAGE and Licensee hereby amend Section 4 of the Agreement by
deleting Section 4(b)(x) in its entirety and replacing with the following:



               “(x) Provide Licensee with one (1) copy of the CPS, and, as part of the
training to be given by ORBIMAGE to the Licensee under this Agreement, as
amended, training on how to use the CPS, at no additional cost, for
installation at the Licensee Ground Facility on a stand alone basis, solely for
the purpose of producing image tasking orders for the OrbView-3 System in
accordance with the terms and subject to the conditions of this Agreement.
During the period before the CPS has been provided to the Licensee, ORBIMAGE
will offer boundary windows assignments to the Licensee and ORBIMAGE shall
perform the necessary collection planning which will involve collection of a
single strip of up to 700km as requested by the Licensee pursuant to the
Standard Operating Procedures; and”



Article 4 – Amendments to Section 5 of the Agreement




     ORBIMAGE and Licensee hereby amend Section 5 of the Agreement by deleting
Sections 5(c)(ii) in its entirety and replacing with the following:



               “(ii) In exchange for the payment by Licensee of the guaranteed amounts
payable in each Operational Period pursuant to Section 5(c)(i), ORBIMAGE shall
reserve [*******************************************] seconds of imaging



 









 




window time per Operational Year (based upon [***************]) for
Licensee’s use hereunder, which will be allocated in equal parts over the
Operational Year. The terms imaging window time, imaging time and boundary
window time as used in this Agreement shall have the same meaning and shall
include the total amount of time in the boundary window, including imaging and
slewing time. Licensee shall use imaging window time in accordance with
ORBIMAGE’s Standard Operating Procedures in effect from time to time, and such
imaging window time shall be allocated as a single contiguous window of
[***********************] seconds per pass. Each such [*********************]
second boundary window may be placed anywhere along the ground track within the
Territory for such pass, as requested by the Licensee pursuant to the Standard
Operating Procedures. ORBIMAGE acknowledges that Licensee’s priority is to
image the Original Territory. Therefore, ORBIMAGE will attempt to offer the
Licensee boundary windows over the Original Territory whenever possible. In
the event ORBIMAGE is unable to provide the foregoing imaging window time
during any quarterly period, ORBIMAGE shall attempt to make available to
Licensee additional imaging window time to make up for such shortfall for use
at a later date during such period (or if the Licensee agrees during a
subsequent period). If ORBIMAGE is unable to provide additional boundary
window time to make up for any shortfall prior to the end of the applicable
quarter, ORBIMAGE’s charges to the Licensee pursuant to Section 5(c)(i) above
will be reduced on a pro rata basis for the following circumstances: (A)
ORBIMAGE does not provide the foregoing imaging window time, (B) the Licensee
fails to receive imagery from a PIO that has been accepted by ORBIMAGE’s system
during a boundary window, if such failure is due to factors within the control,
or which are the responsibility, of ORBIMAGE under this Agreement, or (C)
OrbView-3’s performance for any boundary window does not comply with the
performance criteria of Attachment B to this Agreement. If Licensee fails to
use any imaging window time allocated by ORBIMAGE to Licensee, the imaging
window time shall nevertheless be applied towards the imaging window time
reserved for Licensee as described above as if actually used by Licensee, on a
second by second basis. Licensee acknowledges and agrees that any remaining
imaging window time shall be reserved for ORBIMAGE use. Notwithstanding the
foregoing, ORBIMAGE may make available additional imaging window time for use
by Licensee in its sole discretion and ORBIMAGE shall have the right to use any
imaging window time reserved for Licensee hereunder to the extent that is not
utilized by Licensee. Additional imaging window time actually provided to
Licensee in any Operational Period shall be applied towards the amount of
imaging window time reserved for Licensee in that Operational Period, on a
second by second basis. In such event, Licensee shall pay ORBIMAGE
[***********] per second of additional imaging window time provided to Licensee
which exceeds the amount of imaging window time reserved for Licensee in that
Operational Year. Licensee acknowledges and agrees that its right to receive
imaging window time under this Section 5(c)(ii) is subject to the terms and
conditions set forth on Attachment A to this Agreement.”



Article 5 – Amendments to Section 9 of the Agreement




     ORBIMAGE and Licensee hereby amend Section 9 of the Agreement by deleting
Sections 9(b) in its entirety and replacing with the following:



 









 





          “(b) In the event ORBIMAGE is unable to provide Licensee with access to
the Primary Satellite due to temporary or intermittent problems with the system
(not including planned periods of satellite unavailability that result from the
system architecture) which result in less imaging window time being made
available during any Operational Period than is required pursuant to Section
5(c)(ii) above, Licensee’s sole and exclusive remedies shall be, at Licensee’s
option, to either have their payment obligation reduced as set forth in Section
5(c)(ii) or to extend the term of this Agreement by the amount of such time
that ORBIMAGE is unable to provide Licensee with access to the system.
Notwithstanding anything to the contrary in this Agreement, the foregoing shall
be Licensee’s sole and exclusive remedies in the event of satellite
unavailability due to temporary or intermittent problems with the system.”



Article 6 – Miscellaneous




     (a) Capitalized terms not otherwise defined herein shall have the meaning
set forth in the Agreement.



     (b) Except as expressly modified or amended hereby, all of the terms and
conditions of the Agreement shall remain in full force and effect.



     (c) This Amendment may be executed in two or more counterparts, each of
which shall be considered an original and all of which together shall
constitute one and the same instrument.



[Remainder of Page Intentionally Left Blank.]




 









 








     IN WITNESS WHEREOF, the parties have caused this Amendment No. 3 to be
executed as of the date first above written.



	 	 	 	 	 	 	 
	ORBIMAGE INC.	 	 	 	KOREA AEROSPACE
	

	 	 	 	 	 	INDUSTRIES, LTD.
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	

	 	

	 	 	 	

	Timothy J. Puckorius	 	 	 	 
	Senior Vice President -	 	Name:	 	 
	  World

	 	wide Marketing & Sales
	 	 	 	

	

	 	 	 	Title:	 	 
	

	 	 	 	 	 	








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