NII HOLDINGS, INC. Nonqualified Stock Option Agreement (Directors)
Exhibit 10.4
NII HOLDINGS, INC.
(Directors)
WHEREAS, ___(the “Optionee”) is a Member of the Board of Directors of NII
Holdings, Inc. (the “Company”);
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 twenty five percent (25%) of the shares of Common Stock covered hereby on the first
anniversary of the Date of Grant, twenty five percent (25%) of the shares of Common Stock covered
hereby on the second anniversary of the Date of Grant, twenty five percent (25%) of the shares of
Common Stock covered hereby on the third anniversary of the Date of the Grant and twenty five
percent (25%) of the shares of Common Stock covered hereby on the fourth anniversary of the Date of
Grant, in each case for so long as the Optionee remains in the continuous service on the Board of
the Company.
(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 serving on the Board of the Company or (ii) retires from service on the
Board at or after age 65.
(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 a member of the Board for any reason other than death or disability or retirement at or after age 65; | ||
(b) | one year after the date on which the Optionee ceases to be member of the Board by reason of death or disability or retirement at or after age 65; 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. The Option Price shall be payable (a) in cash in the form
of currency or check or other cash equivalent acceptable to the Company, (b) 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 pursuant to which the broker undertakes to deliver to the Company the
amount of the aggregate Option Price 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.
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
2
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. Right to Terminate Service on the Board. No provision of this agreement shall
limit in any way whatsoever any right that the Company or may otherwise have to terminate the
service of the Optionee on the Board.
9. 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.
10. 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.
11. Governing Law. This agreement is made under, and shall be construed in accordance
with, the laws of the State of Delaware.
12. Capitalized Terms. Capitalized terms that are used but not defined herein are
used herein as defined in the Plan.
13. 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
3
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, 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.
14. 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. 00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx, 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.
15. 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.
16. 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
4
the Plan shall govern. All references herein to the Plan shall mean the Plan as in effect on the
date hereof.
17. 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.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed on its behalf.
NII HOLDINGS, INC. |
||||
By: | ||||
Xxxxxx X. Xxxxxx | ||||
Vice President, General Counsel and Secretary | ||||
Dated: | |||||
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 | |||||
Dated: | |||||
Please return the signed original of this entire Agreement to:
NII HOLDINGS, INC. | ||
00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000 | ||
Xxxxxx, XX 00000 | ||
Attn: Xxxxx Xxxxxx |
5