Exhibit 10.8


 


EXECUTION COPY


 


WARRANT AGREEMENT


 


This Warrant Agreement (this “Agreement”) is made and entered into as
of December 12, 2002 (the “Effective Date”), by and between Eagle River
Investments, L.L.C., a Washington limited liability company (“Eagle River”),
and ICO Global Communications (Holdings) Limited, a Delaware corporation (“ICO”).


 


RECITALS:


 


A.                     ICO’s
wholly owned subsidiary, ICO Global Limited, a Delaware corporation (“IGL”), is
indebted to Teledesic, LLC (“Teledesic”) pursuant to the terms of that certain
Credit Agreement dated May 12, 2000 as amended (the “Credit Agreement”). ICO
guaranteed IGL’s obligations under the Credit Agreement.


 


B.                       ICO,
IGL, Eagle River and Teledesic entered into that certain Binding Settlement
Agreement pursuant to which (i) ICO, IGL and Teledesic agreed to partially
compromise the obligations under the Credit Agreement and release claims each
may have against the other, (ii) Eagle River agreed to purchase Teledesic’s
rights in and to the Credit Agreement, and (iii) Eagle River agreed to modify
certain provisions of the Credit Agreement.


 


C.                       As
an inducement to Eagle River to purchase Teledesic’s rights in and to the
Credit Agreement, and to agree to modify certain provisions thereof, ICO agreed
to issue to Eagle River warrants to purchase shares of ICO Class A common stock
as set forth below.


 


NOW THEREFORE, in consideration of the premises and the value given
under the Settlement Agreement and the mutual convenants and agreements
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, ICO and Eagle River agree as
follows:


 


1.                          Grant of Warrant.


 


1.1                    Warrant.
ICO hereby grants to Eagle River a warrant (the “Warrant”), subject to the
provisions of this Agreement, to purchase up to an aggregate of 3,000,000
shares of ICO Class A common stock (subject to adjustment as set forth in
Sections 6 and 7 below) (the “Warrant Shares”).


 


1.2                    Exercise
Price. The “Exercise Price” shall be $0.01 per share of ICO Class A common
stock (subject to adjustment as set forth in Section 6 below) and the “Aggregate
Exercise Price” shall be the total amount paid by Eagle River in connection
with the exercise of the Warrant.


 


2.                          When Warrant May Be Exercised.


 


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2.1                    Subject to the
condition set forth in Section 2.3 hereof, the Warrant may be exercised by
Eagle River, in whole or in part, from time to time at any time during the
ten-year period that begins on the Effective Date.


 


2.2                    If Eagle River
elects to exercise the Warrant, Eagle River shall give a written notice to ICO
specifying (a) the number of Warrant Shares that Eagle River will purchase and
(b) the place and date (not later than ten (10) business days, nor earlier than
three business days, from the date such notice is given) for the closing of
such transaction.


 


2.3                    The obligation
of ICO to deliver Warrant Shares shall be subject to the condition that no
preliminary or permanent injunction or other order, decree or ruling issued by
a court of competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, shall be in effect which would prohibit
such sale and delivery or payment.


 


3.                          Payment and Delivery of Certificate(s) upon Exercise
of Warrant for Warrant Shares. At any closing of any purchase of any
Warrant Shares hereunder:


 


3.1                    Subject to
Section 3.3 below, Eagle River shall pay to ICO the Aggregate Exercise Price
for the Warrant Shares so purchased by certified or cashier’s check or by wire
transfer of immediately available funds to a bank account maintained by ICO.


 


3.2                    ICO shall
deliver to Eagle River a duly issued certificate (or certificates in the
denominations designated by Eagle River in its notice of exercise) representing
the number of the Warrant Shares purchased and the books and records of ICO
shall be amended or revised to reflect the issuance and delivery of the Warrant
Shares to Eagle River.


 


Eagle River shall for all purposes be deemed to have become the holder
of record of such Warrant Shares on the date this Warrant was exercised (the
date the Eagle River has fully complied with the requirements of Section 3.1 or
3.3), irrespective of the date of delivery of the certificate or certificates
representing the Warrant Shares; provided that, if the date such exercise is
made is a date when the stock transfer books of ICO are closed, Eagle River
shall be deemed to have become the holder of record of such Warrant Shares at
the close of business on the next succeeding date on which the stock transfer
books are open.


 


3.3                    If, on or
prior to any date on which Eagle River elects to exercise the Warrant, in whole
or in part, Eagle River may pay to ICO the Aggregate Exercise Price for the
Warrant Shares so purchased by electing to have ICO cancel (and ICO shall
cancel) such number of Warrant Shares as may be sufficient to satisfy the
Exercise Price for the Warrant Shares (a “Cashless Exercise”). Eagle River may
also elect a Cashless Exercise with respect to any or all Warrant Shares that
remain subject to the Warrant on the last day that the Warrant may be exercised
as provided in Section 2 above. If Eagle River elects a Cashless Exercise, then
ICO shall issue to Eagle River the number of Warrant Shares determined as
follows:


 


2

















 


	
  X=Y (A-B)

  
	
  A

  



 


	
  Where:

  	
   

  	
  X =

  	
  the number of
  the Warrant Shares, subject to the Warrant, to be issued to Eagle River.

  
	
   

  	
   

  	
  Y =

  	
  the total number of Warrant Shares that would be
  issued to Eagle River if Eagle River was not electing a Cashless Exercise.

  
	
   

  	
   

  	
  A =

  	
  the “current market price” (as defined below; it
  being understood that for purposes of this Section 3, the Time of
  Determination shall be the date of the exercise of the Warrant) of one
  Warrant Share subject to the Warrant.

  
	
   

  	
   

  	
  B =

  	
  the Exercise Price.

  



 


3.4                    The number of
Warrant Shares subject to the Warrant shall be reduced at any closing by (i)
the number of Warrant Shares purchased by Eagle River or (ii) in the event of a
Cashless Exercise, the number of Warrant Shares issued to Eagle River plus the
number of Warrant Shares cancelled to satisfy the relevant Exercise Price.


 


4.                          Representations and Warranties of ICO. ICO
hereby represents, warrants and covenants to Eagle River as follows:


 


4.1                    Due
Authorization, etc. The execution, delivery and performance of this
Agreement have been duly authorized by each of ICO and an independent committee
of the Board of Directors of ICO consisting of members that have complete
independence from Eagle River, and no other proceeding is necessary for the
execution, delivery and performance of this Agreement. This Agreement has been
duly executed and delivered by ICO and (assuming that it has been duly executed
and delivered by Eagle River) constitutes legal, valid and binding obligations
of ICO, enforceable against ICO in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general application which may affect the enforcement of
creditors’ rights generally, by general equitable principles and by implied
covenants of good faith and fair dealing.


 


4.2                    Warrant
Shares. ICO has taken and will continue to take all necessary corporate
action to authorize and reserve for issuance, upon exercise of the Warrant, the
Warrant Shares. The Warrant Shares, upon purchase by Eagle River, will be duly
authorized, validly issued, fully paid and nonassessable, and delivered to
Eagle River free and clear of all claims, liens, charges, security interests or
encumbrances of any kind, including, without limitation, any preemptive or
similar rights; provided, however, such Warrant Shares will be subject to the
terms of the restriction on transfer of shares under state and federal
securities laws.


 


4.3                    No
Violation. Neither the execution and delivery of this Agreement by ICO nor
the consummation of the transactions contemplated hereby will conflict with or
violate (a) any provision of its organizational documents or (b) any law, rule,
regulation, ordinance, order, writ, injunction, judgment or decree applicable
to ICO or by which its properties or assets may be bound or affected.


 


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5.                          Representations and Warranties of Eagle River. Eagle
River hereby represents and warrants to ICO as follows:


 


5.1                    Due
Authorization. The execution, delivery and performance of this Agreement
have been duly authorized by Eagle River and no other proceeding is necessary
for the execution, delivery and performance of this Agreement. This Agreement
has been duly executed and delivered by Eagle River and (assuming that it has
been duly executed and delivered by ICO) constitutes legal, valid and binding
obligations of Eagle River, enforceable against Eagle River in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general application which
may affect the enforcement of creditors’ rights generally, by general equitable
principles and by implied covenants of good faith and fair dealing.


 


5.2                    Distribution.
The Warrant may only be transferred in accordance with the provisions of
Section 11.1 hereof. Any Warrant Shares to be acquired upon exercise of the
Warrant will not be transferred, except in a transaction registered or exempt
from registration under the Securities Act and permitted by this Agreement and
the Warrant Shares will bear a legend to such effect.


 


5.3                    No
Violation. Neither the execution and delivery of this Agreement by Eagle
River nor the consummation of the transactions contemplated hereby will
conflict with or violate (a) any provision of its organizational documents or
(b) any law, rule, regulation, ordinance, order, writ, injunction, judgment or
decree applicable to Eagle River or by which it properties or assets may be
bound or affected.


 


6.                          Adjustment Upon Changes in Capitalization. The
number and kind of shares purchasable upon the exercise of the Warrant shall be
subject to adjustment form time to time as follows:


 


6.1                    Stock
Dividends, Stock Splits, Combinations, etc. In case ICO shall hereafter (a)
pay a dividend or make a distribution on its Class A common stock, the shares
of Class B common stock of ICO or any other shares of capital stock pari passu
or junior to the Class A common stock (collectively, the “ICO Common Shares”)
in ICO Common Shares, (b) subdivide any or combine any outstanding ICO Common
Shares into a smaller number of shares or (c) issue by reclassification of the
ICO Common Shares any shares of capital stock, the number of Warrant Shares issuable
upon exercise of the Warrant immediately prior to such action shall be adjusted
so that Eagle River shall be entitled to receive the number of shares of
capital stock which Eagle River would have owned immediately following such
action had the Warrant been exercised immediately prior thereto and appropriate
adjustment shall also be made to the Exercise Price payable per share, provided
the Aggregate Exercise Price payable hereunder shall remain the same. An
adjustment made pursuant to this Section 6.1 shall become effective immediately
after the record date in the case of a dividend and shall become effective
immediately after the effective date in the case of a subdivision or
combination. If, as a result of an adjustment made pursuant to this Section
6.1, Eagle River shall become entitled to receive shares of two (2) or more
classes of capital stock of ICO, the Board of Directors of ICO (whose
determination shall be conclusive) shall determine the allocation of the
adjusted Exercise Price between or amount shares of such classes of capital
stock.


 


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6.2                    Reclassification,
Combinations, Mergers, etc. In case of any reclassification or change of
outstanding ICO Common Shares issuable upon exercise of the Warrant (other than
as set forth in Section 6.1 above and other than a change in par value or from
par value to no par value, or from no par value to par value), or in case of
any consolidation, merger or amalgamation of ICO with or into another
corporation (other than a merger, acquisition or amalgamation in which ICO is
the continuing corporation and which does not result in any reclassification or
change of the then outstanding ICO Common Shares issuable upon exercise of the
Warrant) or in case of any sale or conveyance to another Person of the property
of ICO as an entirety or substantially as an entirety, then, as a condition of
such reclassification, change, consolidation, merger, amalgamation, sale or
conveyance, ICO or such a successor or purchasing Person, as the case may be,
shall forthwith make lawful and adequate provision whereby Eagle River shall
have the right thereafter to receive on exercise of the Warrant the kind and
amount of shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, amalgamation, sale or
conveyance equivalent to the consideration that a holder of the ICO Common
Shares issuable upon the exercise of the Warrant would have received if the
Warrant had been exercised immediately prior to such reclassification, change,
consolidation, merger, amalgamation, sale or conveyance, and ICO or such
successor or Purchasing Person shall enter into a supplemental warrant
agreement so providing. Such provisions shall include provision for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 6. If the issuer of securities deliverable upon
exercise of either Warrant or under the supplemental warrant agreement, is an
affiliate of the former, surviving, continuing or transferee corporation, that
issuer shall join in the supplemental warrant agreement. The above provisions
of this Section 6.2 shall similarly apply to successive reclassifications and
changes of shares of capital stock and to successive consolidations, mergers
amalgamations, sales or conveyances.


 


6.3                    Current
Market Price. The current market price per ICO Common Share at any date
shall be the average of the daily closing prices for the twenty (20)
consecutive trading days ending on the last full trading day on the exchange or
market specified in the second succeeding sentence prior to the Time of
Determination (which shall be the date of the exercise of the Warrant). The
closing price for any day shall be the last reported sale price regular way or,
in case no such reported sale takes place on such day, the average of the
closing bid and asked prices regular way for such day, in each case (1) on the
principal national securities exchange on which the ICO Common Shares are
listed or to which such shares are admitted to trading or (2) if the ICO Common
Shares are not listed or admitted to trading on a national securities exchange,
in the over-the-counter market as reported by The Nasdaq Stock Market TM or any
comparable system or (3) if the ICO Common Shares are not listed on The Nasdaq
Stock Market TM or a comparable system, the current market price per share shall
be the fair market value thereof as determined in good faith by the Board of
Directors of ICO.


 


6.4                    Certificate
as to Adjustment. In the case of any adjustment in the Exercise Price or
number and type of securities issuable upon exercise of this Warrant, ICO will
promptly give written notice to Eagle River in the form of a certificate,
certified and confirmed by an officer of ICO, setting forth the adjustment in
reasonable detail.


 


7.                          Specific Performance. ICO acknowledges
that the Warrant and the Warrant Shares are unique and that Eagle River will
not have an adequate remedy at law if ICO breaches


 


5

















 


any covenant
contained herein or fails to perform any of its obligations under this
Agreement. Accordingly, ICO agrees that Eagle River shall have the right, in
addition to any other rights which it may have, to specific performance and
equitable injunctive relief if ICO shall fail or threaten to fail to perform
any of its obligations under this Agreement.


 


8.                          Expiration. The Warrant shall expire on
the earlier to occur of (i) the date on which the number of Warrant Shares
remaining subject to the Warrant is reduced to zero, and (ii) at 11:59 p.m.
(PST) on the tenth anniversary of the Effective Date.


 


9.                          Prohibited Actions of ICO. ICO shall not,
prior to the termination of the Warrant, take any action which would have the
effect of preventing or disabling ICO from delivering the Warrant Shares to
Eagle River upon exercise of the Warrant or otherwise performing ICO’s
obligations under this Agreement.


 


10.                    Notices to Eagle River.


 


10.1              So long as the
Warrant is outstanding, whenever ICO shall expect to (a) pay any dividend or
distribution upon any capital stock, (b) effect any recapitalization, merger,
amalgamation, consolidation, reorganization, transfer, sale, lease, conveyance
or other transaction involving a substantial portion of its assets, or (c) be
involved in any voluntary or involuntary dissolution, liquidation, winding up
or other similar transaction, at least 10 days before the proposed action or
any applicable record date, ICO shall give Eagle River written notice
describing the proposed action and stating the date on which (x) a record date
is to be fixed for the purpose of such dividend, distribution or right, or (y)
such recapitalization, merger, amalgamation, consolidation, reorganization,
transfer, sale, lease, conveyance, dissolution, liquidation, winding up or
other transaction is to take place and when, if any date is to be fixed, the
record holders of capital stock shall be entitled to exchange their capital
stock for securities or other property deliverable upon such recapitalization,
merger, amalgamation, consolidation, reorganization, transfer, sale, lease,
conveyance, dissolution, liquidation, winding up or other transaction.


 


10.2              Eagle River shall
use its reasonable best efforts to keep any information delivered to it
pursuant to Section 10.1 that is not publicly available (“Confidential
Information”) confidential (subject to the last sentence of this Section 10.2).
“Confidential Information” shall not include any information that (a) becomes
generally available to the public, (b) was available to Eagle River, or has
become available to Eagle River, from a source other than ICO or (c) Eagle
River or its representatives independently developed without reference to any
Confidential Information. Notwithstanding the foregoing, in the event that
Eagle River or any representative or agent thereof is requested or required (by
oral questions, interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process) to disclose any
Confidential Information, it is agreed that Eagle River will provide ICO with
prompt notice of such event so that ICO may seek a protective order or other
appropriate remedy and/or waive Eagle River’s compliance with this Section 10.
In the event that such protective order or other remedy is not promptly
obtained, or that ICO grants a waiver hereunder, Eagle River may, without
liability hereunder furnish that portion of the Confidential Information Eagle
River is legally required to disclose.


 


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11.                    Miscellaneous.


 


11.1              Assignability.


 


(a)                      The rights
and obligations of Eagle River with respect to all or any portion of the
Warrant shall be freely assignable by Eagle River in whole, but not in part, provided,
that, (x) such assignee shall, by a written instrument reasonably satisfactory
to ICO, agree to assume all of Eagle River’s obligations hereunder with respect
to the Warrant or relevant portion thereof being assigned and to be bound by
all of the terms and conditions of this Agreement and (y) such assignment shall
not violate any applicable securities law. ICO shall, if requested, issue a new
Warrant or Warrants reflecting the assignee as the new holder of the Warrant.


 


(b)                     The
obligations of ICO shall not be assignable without the prior written consent of
Eagle River, and any purported assignment without such prior written consent
shall be null and void (it being understood that any action referred to in
Section 6.2 shall not be considered an assignment for the purposes of this
Section 11.1(b)).


 


11.2              Third Parties.
Nothing expressed or implied in this Agreement is intended or shall be
construed to confer upon or give to any third party any rights or remedies by
virtue of this Agreement or any exercise or non-exercise of the Warrant granted
hereby.


 


11.3              Amendments;
Waivers. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the holders entitled to purchase a majority of the Warrant Shares
underlying the Warrant. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. Except as otherwise expressly provided herein, no failure on the part
of any party to exercise, and no delay in exercising, any right, power or
remedy hereunder, or otherwise available in respect hereof at law or in equity,
shall operate as a waiver thereof, nor shall any single or partial exercise of
such right, power or remedy by such party preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.


 


11.4              Notices.
Except as otherwise provided herein, whenever this Agreement provides that any
notice, demand, request, consent, approval, declaration or other communication
shall or may be given to or served upon any of the parties by another, or
whenever any of the parties desires to give or serve upon another any
communication with respect to this Agreement, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and shall be deemed to have been given upon personal delivery thereof,
upon transmittal of such notice by telecopy (with confirmation of receipt by
telecopy or telex) or five days after transmittal by registered or certified
mail, postage prepaid, addressed as follows:


 


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  If to ICO:

  	
   

  	
  ICO Global Communications (Holdings) Limited 

  4 Orinda Way 

  Suite B240 

  Orinda, CA 94563 

  Attn: General Counsel

  
	
   

  	
   

  	
   

  
	
  If to Eagle River:

  	
   

  	
  Eagle River Investments, L.L.C. 

  2300 Carillon Point 

  Kirkland, WA 98033 

  Attn: General Counsel

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Davis Wright Tremaine LLP 

  1300 SW Fifth Avenue 

  Suite 2300 

  Portland, OR 97201 

  Attn: Benjamin G. Wolff

  



 


The addresses set
forth above may be changed by any party upon furnishing to the other party a
notice of change of address in accordance with the terms of this Section 11.4.


 


11.5              Governing Law,
Service of Process; Consent to Jurisdiction.


 


(a)                      This
Agreement shall be governed by, and construed in accordance with, the laws of
the state of Delaware, without regard to principles of conflicts of laws.


 


(b)                     To the
fullest extent permitted by applicable law, each party hereto (x) agrees that
any claim, action or proceeding by such party seeking any relief whatsoever
arising out of, or in connection with, this Agreement or the transactions
contemplated hereby shall be brought only in the United States District Court
for Washington and in any state court located in King County, Washington and
not in any other state or Federal court in the United States of America or any
court in any other country, (y) agrees to submit to the exclusive jurisdiction
of such courts located in the state of Washington for purposes of all legal
proceedings arising out of, or in connection with, this Agreement or the
transactions contemplated hereby and (z) irrevocably waives any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such
a court has been brought in an inconvenient forum.


 


11.6              Counterparts.
This Agreement may be executed in several counterparts, each of which shall be
an original, but all of which together shall constitute one and the same
Agreement.


 


11.7              Effect of
Headings. The section and paragraph headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.


 


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11.8              Survival of
Representations and Warranties. The representations, warranties, covenants
and agreements shall survive any closing pursuant to this Agreement.


 


11.9              Expenses.
Each party shall pay all fees and expenses (including costs of counsel) it
incurs in connection with this Agreement.


 


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


 


11.11        Entire Agreement.
This Agreement constitutes the entire agreement between ICO and Eagle River
with respect to the matters covered herein and supersedes any prior
negotiations, understandings or agreements with respect to the matters
contemplated hereby.


 


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IN WITNESS
WHEREOF, the parties have caused this Agreement to be executed and delivered as
of the date first written above.


 


 


	
   

  	
  ICO GLOBAL
  COMMUNICATIONS (HOLDINGS) 

  
	
   

  	
  LIMITED, a Delaware
  corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Craig Jorgens

  	
   

  
	
   

  	
  Craig Jorgens,
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EAGLE RIVER
  INVESTMENTS, L.L.C., 

  
	
   

  	
  a Washington limited liability
  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Craig O. McCaw

  	
   

  
	
   

  	
  Name

  	
  Craig O. McCaw

  	
   

  
	
   

  	
  Title

  	
  Chief Executive Officer

  	
   

  
								



 


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