NII HOLDINGS, INC. Nonqualified Stock Option Agreement (NII Employees)
Exhibit 10.2
NII HOLDINGS, INC.
(NII Employees)
WHEREAS,
(the “Optionee”) is an employee of NII Holdings, Inc. (the
“Company”) or one of its subsidiaries;
WHEREAS, the execution of a stock option agreement in the form hereof has been authorized to
establish and evidence the principal terms and conditions applicable to an option grant made to
Optionee on (the “Date of Grant”) pursuant to authorization by a resolution of the
Compensation Committee of the Board of Directors (the “Committee”) of the Company that was duly
adopted on
; and
WHEREAS, the option granted to Optionee by resolution of the Committee, on the terms set forth
herein, is intended to be a nonqualified stock option and shall not be treated as an “incentive
stock option” within the meaning of that term under Section 422 of the Internal Revenue Code of
1986 (the “Code”).
NOW, THEREFORE, pursuant to the Company’s 2004 Incentive Compensation Plan, as in effect on
the date hereof (the “Plan”) and subject to the terms and conditions thereof and the terms and
conditions hereinafter set forth, the Company hereby grants to the Optionee a nonqualified stock
option (the “Option”) to purchase
shares of the Company’s Common Stock, par value
$.001 per share (“Common Stock”), at an exercise price per share of Common Stock equal to
, such price being the Fair Market Value of the Common Stock on the Date of Grant
(“Option Price”).
1. Vesting of Option.
(a) Unless terminated as hereinafter provided, the Option shall become exercisable (or “vest”)
with respect to thirty three and one third percent (33 1/3%) of the shares of Common Stock covered
hereby on the first anniversary of the Date of Grant, an additional thirty three and one third
percent (33 1/3%) of the shares of Common Stock covered hereby on the second anniversary of the
Date of Grant, and the remaining thirty three and one third percent (33 1/3%) of the shares of
Common Stock covered hereby on the third anniversary of the Date of the Grant, in each case for so
long as the Optionee remains in the continuous employ of the Company or a subsidiary.
(b) Notwithstanding the provisions of Section 1(a) hereof, the Option shall become immediately
and fully exercisable if the Optionee (i) dies or becomes
disabled (within the meaning of Code Section 22(e)(3)) while in the employ of the Company or a
subsidiary or (ii) retires from employment with the Company or a subsidiary at or after age 65 or
at an earlier age with the consent of the Committee.
(c) To the extent that the Option shall have become exercisable in accordance with the terms
of this Section 1, it may be exercised in whole or in part from time to time thereafter.
2. Termination of Option. The Option shall terminate automatically and without
further notice on the earliest of the following dates:
| (a) | Ninety days after the date on which the Optionee ceases to be an employee of the Company or a subsidiary for any reason other than death or disability or retirement at or after age 65 or at an earlier age with the consent of the Committee; | ||
| (b) | one year after the date on which the Optionee ceases to be an employee of the Company or a subsidiary by reason of death or disability or retirement at or after age 65 or at an earlier age with the consent of the Committee; or | ||
| (c) | ten years after the Date of Grant; |
provided, however, if the Optionee commits an act that the Committee determines to
have been intentionally committed and detrimental to the interests of the Company or a subsidiary,
the Option shall terminate on the date of that determination notwithstanding any of the foregoing
provisions of this Section 2.
3. Payment of Option Price and Tax Withholding. The Option Price and any required tax
withholding shall be payable (a) in cash in the form of currency or check or other cash equivalent
acceptable to the Company, (b) for only the Option Price, by actual or constructive
transfer to the Company of nonforfeitable, nonrestricted shares of Common Stock that have been
owned by the Optionee for at least six months prior to the date of exercise, or (c) by any
combination of the methods of payment described in Sections 3(a) and 3(b) hereof. Nonforfeitable,
nonrestricted shares of Common Stock that are transferred by the Optionee in payment of all or any
part of the Option Price shall be valued on the basis of their Fair Market Value as of the day
preceding the exercise date. The requirement of payment in cash shall be deemed satisfied if the
Optionee makes arrangements that are satisfactory to the Company with a broker that is a member of
the National Association of Securities Dealers, Inc. to sell a sufficient number of the shares of
Common Stock, which are being purchased pursuant to the exercise, so that the net proceeds of the
sale transaction will at least equal the amount of the aggregate Option Price and tax withholding
and pursuant to which the broker undertakes to deliver to the Company the amount of the aggregate
Option Price and tax
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withholding not later than the date on which the sale transaction will settle in the ordinary
course of business.
4. Change in Control. Upon a Change in Control this Option shall become immediately
and fully exercisable if (a) the Option is not assumed, replaced or converted to an equivalent
award by the surviving entity (or affiliate thereof) for securities tradable on an established
securities market, or (b) the Option is amended, replaced or converted to an equivalent award by
the surviving entity (or an affiliate thereof) for securities tradable on an established securities
market and the Optionee’s employment is terminated within twenty-four (24) months following the
Change in Control under circumstances that entitle the Optionee to severance pursuant to the NII
Holdings, Inc. Change of Control Protection Plan or the NII Holdings, Inc. Severance Policy or any
substitutes or successors to such plans or policies in effect immediately preceding the Change in
Control.
5. Compliance with Law. The Company shall make reasonable efforts to comply with all
applicable United States federal and state securities laws, as well as foreign laws, where
applicable; provided, however, notwithstanding any other provision of this
agreement, the Option shall not be exercisable if the exercise thereof would result in a violation
of any such law.
6. Transferability and Exercisability. Neither the Option nor any interest therein
may be transferred by the Optionee except by will or the laws of descent and distribution or as
otherwise permitted by the Plan, and except as otherwise permitted by the Plan, the Option may not
be exercised during the lifetime of the Optionee except by the Optionee or, in the event of the
Optionee’s legal incapacity, by the Optionee’s guardian or legal representative acting on behalf of
the Optionee in a fiduciary capacity under state law and court supervision.
7. Adjustments. The Committee shall make any adjustments in the Option Price and the
number or kind of shares of stock or other securities covered by the Option that the Committee may
determine to be equitably required in the event that (a) the Company (i) effects one or more stock
dividends, stock split-ups, subdivisions or consolidations of shares, (ii) engages in a transaction
to which Code Section 424 applies, or (b) there occurs any other event which, in the judgment of
the Committee necessitates such action. Any such adjustment shall be made in compliance with
Treasury Regulation Section 1.424-1 and Code Section 409A.
8. Withholding Taxes. If the Company shall be required to withhold any United States
federal, state, local or foreign income, social or other tax in connection with any exercise of the
Option, the Optionee shall pay the tax or make provisions that are satisfactory to the Company for
the payment thereof concurrent with the payment of the Option Price.
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9. Right to Terminate Employment and Change Employment Terms. No provision of this
agreement shall confer on the Optionee any right to continue in the employ or service of the
Company or a subsidiary or in any way affect any right or power that the Company or a subsidiary
may otherwise have to terminate the employment or service of the Optionee or to change any terms of
Optionee’s employment at any time with or without assigning a reason therefore.
10. Relation to Other Benefits. Any economic or other benefit to the Optionee under
this agreement or the Plan shall not be taken into account in determining any benefits to which the
Optionee may be entitled under any profit-sharing, retirement or other benefit or compensation plan
maintained by the Company or a subsidiary and shall not affect the amount of any life insurance
coverage available to any beneficiary under any life insurance plan covering employees of the
Company or a subsidiary.
11. Amendments. Any amendment to the Plan effected after the date hereof shall be
deemed to be an amendment to this agreement to the extent that the amendment is applicable hereto;
provided, however, that no such amendment shall adversely affect the right of the
Optionee with respect to the Option without the Optionee’s consent.
12. Severability. In the event that one or more of the provisions of this agreement
shall be invalidated for any reason by a court of competent jurisdiction, any provision so
invalidated shall be deemed to be separable from the other provisions hereof, and the remaining
provisions hereof shall continue to be valid and fully enforceable.
13. Governing Law. This agreement is made under, and shall be construed in accordance
with, the laws of the State of Delaware.
14. Capitalized Terms. Capitalized terms that are used but not defined herein are
used herein as defined in the Plan.
15. Data Privacy Consent. As a condition of the grant of the Option, Optionee
consents to the collection, use and transfer of personal data as described in this paragraph.
Optionee understands that the Company and its subsidiaries hold certain personal information about
him or her, including his or her name, home address and telephone number, date of birth, social
security or identity number, salary, nationality, job title, any shares of stock or directorships
held in the Company, details of all options or any other entitlement to shares of stock awarded,
canceled, exercised, vested, unvested or outstanding in his or her favor, for the purpose of
managing and administering the Plan (“Data”). Optionee further understands that the Company and/or
its subsidiaries will transfer Data amongst themselves as necessary for the purpose of
implementation,
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administration and management of his or her participation in the Plan, and that the Company
and/or any of its subsidiaries may each further transfer Data to any third parties assisting the
Company in the implementation, administration and management of the Plan. Optionee understands
that these recipients may be located in the European Economic Area, or elsewhere, such as the U.S.
or Asia. He or she authorizes them to receive, possess, use, retain and transfer, in electronic or
other form, for the purposes of implementing, administering and managing his or her participation
in the Plan, including any requisite transfer to a broker or other third party with whom he or she
may elect to deposit any shares of stock acquired upon exercise of the Option, such Data as may be
required for the administration of the Plan and/or the subsequent holding of shares of stock on his
or her behalf.
16. Notice. Any notice or other communication given pursuant to this Agreement shall
be in writing and shall be personally delivered or mailed by United States registered or certified
mail, postage prepaid, return receipt requested, to the following addresses:
If to the Company:
|
NII Holdings, Inc. 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxx, XX 00000 Attn: Xxxx X. Xxxxxxx, Vice President, General Counsel and Secretary |
|
If to Optionee:
|
||
Any such notice shall be deemed to have been given (a) on the date of postmark, in the case of
notice by mail, or (b) on the date of delivery, if delivered in person.
17. Fractional Shares. Fractional shares shall not be issuable hereunder, and when
any provision hereof may entitle the Optionee to a fractional share such fraction shall be
disregarded.
18. Conflicts. In the event of any conflict between the provisions of the Plan as in
effect on the date hereof and the provisions of this Agreement, the provisions of the Plan shall
govern. All references herein to the Plan shall mean the Plan as in effect on the date hereof.
19. Optionee Bound by Plan. The Optionee hereby acknowledges receipt of a copy of the
Plan and agrees to be bound by all the terms and provisions thereof.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed on its behalf as of
.
| NII HOLDINGS, INC. |
||||
| By: | ||||
| Xxxx X. Xxxxxxx | ||||
| Vice President, General Counsel and Secretary | ||||
The undersigned Optionee hereby acknowledges receipt of an executed original of this Agreement
and accepts the Option granted hereunder, subject to the terms and conditions of the Plan and the
terms and conditions hereinabove set forth.
| Name: | ||||
| Optionee | ||||
| Date: | ||||
Please return the signed original of this entire Agreement to:
NII HOLDINGS, INC.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
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