exv10w1






Exhibit 10.1




NII HOLDINGS, INC.

EXECUTIVE VOLUNTARY DEFERRAL PLAN




Effective

January 1, 2009




 









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009






TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	Introduction
	 	 	1	 
	 
	 	 	 	 
	ARTICLE I Definition of Terms
	 	 	1	 
	1.01 Account
	 	 	1	 
	1.02 Administrator or Plan Administrator
	 	 	1	 
	1.03 Affiliate
	 	 	1	 
	1.04 Beneficiary
	 	 	1	 
	1.05 Board
	 	 	2	 
	1.06 Closing Price
	 	 	2	 
	1.07 Code
	 	 	2	 
	1.08 Committee
	 	 	2	 
	1.09 Compensation
	 	 	2	 
	1.10 Corporation
	 	 	2	 
	1.11 Deferral Contribution
	 	 	2	 
	1.12 Deferral Election
	 	 	3	 
	1.13 Deferred Stock Unit
	 	 	3	 
	1.14 Effective Date
	 	 	3	 
	1.15 Eligible Employee
	 	 	3	 
	1.16 Key Employee
	 	 	3	 
	1.17 Participant
	 	 	3	 
	1.18 Plan
	 	 	3	 
	1.19 Plan Year
	 	 	3	 
	1.20 Termination of Employment
	 	 	4	 
	 
	 	 	 	 
	ARTICLE II Eligibility and Participation
	 	 	4	 
	2.01 Eligibility
	 	 	4	 
	2.02 Participation
	 	 	4	 
	2.03 Length of Participation
	 	 	4	 
	 
	 	 	 	 
	ARTICLE III Determination of Deferral
	 	 	4	 
	3.01 Commencement of Active Participation
	 	 	4	 
	3.02 Deferral Election
	 	 	4	 
	3.03 Equitable Adjustment in Case of Error or Omission
	 	 	5	 
	 
	 	 	 	 
	ARTICLE IV Accounts and Investments
	 	 	6	 
	4.01 Deferred Stock Units
	 	 	6	 
	4.02 Hypothetical Nature of Accounts and Investments
	 	 	6	 
	 
	 	 	 	 
	ARTICLE V Vesting
	 	 	7	 






i









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009




	 	 	 	 	 
	 	 	Page
	ARTICLE VI Payment
	 	 	7	 
	6.01 Termination of Service
	 	 	7	 
	6.02 Payment of Death Benefit
	 	 	7	 
	6.03 Form of Payment
	 	 	7	 
	6.04 Benefit Determination and Payment Procedure
	 	 	8	 
	6.05 Distribution of Benefit When Distributee Cannot Be Located
	 	 	8	 
	6.06 Acceleration of Benefits Prohibited
	 	 	8	 
	6.07 Beneficiary Designation
	 	 	8	 
	6.08 Claims Procedure
	 	 	9	 
	 
	 	 	 	 
	ARTICLE VII Plan Administration
	 	 	9	 
	7.01 Appointment of Administrator
	 	 	9	 
	7.02 Duties and Responsibilities of Plan Administrator
	 	 	9	 
	 
	 	 	 	 
	ARTICLE VIII Amendment or Termination of Plan
	 	 	10	 
	 
	 	 	 	 
	ARTICLE IX Miscellaneous
	 	 	10	 
	9.01 Unfunded Plan
	 	 	10	 
	9.02 Non-assignability
	 	 	11	 
	9.03 Notices and Elections
	 	 	11	 
	9.04 Governing Law
	 	 	11	 
	9.05 Binding Effect
	 	 	11	 
	9.06 Severability
	 	 	11	 
	9.07 Gender and Number
	 	 	11	 
	9.08 Titles and Captions
	 	 	12	 







ii









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009






Introduction




     Effective January 1, 2009, the Board of Directors of NII Holdings, Inc. adopts the Executive
Voluntary Deferral Plan, under which key employees of NII Holdings, Inc. have the opportunity to
defer receipt of certain compensation until termination of employment and to provide an incentive
to own shares of the Corporation’s Common Stock, thereby aligning their interests more closely with
the interests of the Corporation’s shareholders.



     The Plan is intended to be a plan that is unfunded and maintained by the Corporation primarily
for the purpose of providing deferred compensation for a select group of management or highly
compensated employees as described in the Employee Retirement Income Security Act of 1974, as
amended. The Plan is intended to comply in form and operation with the requirements of Section
409A of the Internal Revenue Code of 1986, as amended, and all questions concerning the Plan should
be interpreted in light of that intent.



ARTICLE I

Definition of Terms




     The following words and terms as used in this Plan shall have the meaning set forth below,
unless a different meaning is clearly required by the context:



1.01 Account




     Account means a bookkeeping account established for a Participant under Article IV hereof.



1.02 Administrator or Plan Administrator




     Administrator means the Compensation Committee of the Board unless responsibility is delegated
as provided for in Article VII hereof.



1.03 Affiliate




     Affiliate means any subsidiary, parent, affiliate, or other related business entity to the
Corporation.



1.04 Beneficiary




     Beneficiary means the person or persons designated by a Participant or otherwise entitled
pursuant to Plan section 6.07 to receive benefits under the Plan attributable to such Participant
after the death of such Participant.



1









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009






1.05 Board




     Board means the present and any succeeding Board of Directors of the Corporation, unless such
term is used with respect to a particular Affiliate and its board of directors, in which event it
shall mean the present and any succeeding board of directors of that Affiliate.



1.06 Closing Price




     Closing Price means the closing price of a share of common stock of the Corporation as
reported on the Nasdaq Global Select Market composite tape on such day or, if the common stock of
the Corporation was not traded on the Nasdaq Global Select Market on such day, then on the next
preceding day that the common stock of the Corporation was traded on such market, all as reported
by such source as the Administrator may select.



1.07 Code




     Code means the Internal Revenue Code of 1986, as the same may be amended from time to time.



1.08 Committee




     Committee means the Compensation Committee of the Board.



1.09 Compensation




     Compensation means a Participant’s base salary, annual bonus and any other cash compensation
received from the Corporation or an Affiliate for the Plan Year. For each Plan Year, the Committee
shall determine each element of compensation (i.e., base salary, annual bonus or other cash
compensation) that may be deferred under the Plan. Such determination shall be made prior to the
Plan Year for which it will be effective.



1.10 Corporation




     Corporation means NII Holdings, Inc., or any successor thereto.



1.11 Deferral Contribution




     Deferral Contribution means that portion of a Participant’s Compensation which is deferred
under the Plan.



2









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009






1.12 Deferral Election




     Deferral Election means an irrevocable written election to defer Compensation which is
executed by the Eligible Employee and timely filed with the Administrator.



1.13 Deferred Stock Unit




     Deferred Stock Unit means a hypothetical share of the Corporation’s common stock.



1.14  Effective Date




     The Effective Date of the Plan is January 1, 2009.



1.15 Eligible Employee




     Eligible Employee means any employee of the Corporation or an Affiliate who is selected by the
Committee to participate in the Plan and who is a member of a select group of management or highly
compensated employees. An employee shall cease to be an Eligible Employee upon a determination by
the Corporation that he is no longer a member of a select group of management or highly compensated
employees.



1.16 Key Employee




     Key Employee means an Eligible Employee who, as of December 31 of any Plan Year, satisfies the
requirements of Code section 416(i) (without regard to Code section 416(i)(5)). Such Eligible
Employee will be considered a Key Employee for purposes of the Plan for the 12-month period
commencing on the next following April 1; provided, however, that an individual will not be
considered a Key Employee unless at the time of his or her Termination of Employment, the
Corporation is considered a public company pursuant to Code section 409A.



1.17 Participant




     Participant means an Eligible Employee who satisfies the requirements of Article II.



1.18 Plan




     Plan means the NII Holdings, Inc. Executive Voluntary Deferral Plan.



1.19 Plan Year




     Plan Year means the 12-month period beginning each January 1.



3









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009



1.20 Termination of Employment




     Termination of Employment means a Participant’s separation from service from the Corporation
or any Affiliate, whether by retirement or termination of employment, consistent with Code section
409A and Treasury Regulations thereunder.



ARTICLE II

Eligibility and Participation




2.01 Eligibility




     Each Eligible Employee may participate in the Plan and elect to defer Compensation for a Plan
Year beginning with the Plan Year that commences January 1, 2009; provided that such individual is
an Eligible Employee on that date.



2.02 Participation




     In order to participate in the Plan, an Eligible Employee must file with the Administrator a
Deferral Election, as provided in Plan section 3.02. The Committee may establish such other
conditions to enrollment, enrollment periods or other requirements as it determines in its sole
discretion are necessary.



2.03 Length of Participation




     An individual who is or becomes a Participant shall be or remain a Participant as long as he
has a Deferral Election in effect or is entitled to future benefits under the terms of the Plan.



ARTICLE III

Determination of Deferral




3.01 Commencement of Active Participation




     An Eligible Employee shall become a Participant with respect to a Plan Year only if he is
expected to have Compensation during such Plan Year and he timely files and has in effect a
Deferral Election for such Plan Year.



3.02 Deferral Election




     (a) Amount of Deferral Contributions. A Participant may elect to defer up to 25% (in 1%
increments) of his Compensation for a Plan Year consisting of base salary and up to



4









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009





100% (in 1%
increments) of his Compensation for a Plan Year consisting of annual bonus and have that
Compensation invested in Deferred Stock Units. Such Deferred Stock Units shall be credited (i) in
the case of deferred Compensation consisting of base salary, as of the last day of the calendar
quarter that includes the date the Compensation consisting of base salary is deferred, or (ii) in
the case of deferred Compensation consisting of annual bonus, as of the day on which such
Compensation is payable in accordance with the Corporation’s then applicable employee compensation
policies (the date on which such Deferred Stock Units are credited pursuant to clauses (i) and (ii)
is referred to herein as the “Payment Date”), and the number of Deferred Stock Units shall be
determined by dividing the Participant’s deferred Compensation payable on the Payment Date, or with
respect to the quarter preceding the Payment Date (in the case of Compensation consisting of base
salary), by the Closing Price as of the Payment Date.



     (b) Deferral Elections. Except as provided in subsection (c) below, a Participant may make an
election to defer Compensation for a Plan Year only if such election is made no later than December
31 of the prior Plan Year, or by such earlier date as may be announced by the Administrator. In
the case of the initial Plan Year commencing January 1, 2009, such election shall be made no later
than December 31, 2008. Such election shall remain in effect for the entire Plan Year and for all
subsequent Plan Years until the Participant revokes such election or timely files a new election
applicable to subsequent Plan Years. Each Deferral Election shall be made on a form provided by
the Administrator and shall specify such additional information as the Administrator may require.



     (c) First Year of Eligibility. In the case of an individual who becomes an Eligible Employee
on or after January 1, 2009, for the first Plan Year in which such Eligible Employee becomes
eligible to participate in the Plan, the Eligible Employee must make an initial deferral election
within thirty (30) days after he or she becomes eligible to participate in the Plan. Such election
shall only be valid with respect to Compensation paid for services rendered after the date of the
initial deferral election.



3.03 Equitable Adjustment in Case of Error or Omission




     If an error or omission is discovered in the Account of a Participant, the Administrator shall
make such equitable adjustment as the Administrator deems appropriate.



5









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009



ARTICLE IV

Accounts and Investments




4.01 Deferred Stock Units




     (a) Except as provided below, a Participant’s Account shall be treated as if it were invested
in Deferred Stock Units that are equivalent in value to the fair market value of the shares of the
Corporation’s common stock in accordance with the following rules.



     (b) The number of Deferred Stock Units credited to a Participant’s Account shall be increased
on each date on which a dividend is paid on the Corporation’s common stock. The number of
additional Deferred Stock Units credited to a Participant’s Account as a result of such increase
shall be determined by (i) multiplying the total number of Deferred Stock Units (with fractional
Deferred Stock Units rounded off to the nearest thousandth) credited to the Participant’s Account
immediately before such increase by the amount of the dividend paid per share of the Corporation’s
common stock on the dividend payment date, and (ii) dividing the product so determined by the
Closing Price on the dividend payment date.



     (c) The dollar value of the Deferred Stock Units credited to a Participant’s Account on any
date shall be determined by multiplying the number of Deferred Stock Units (including fractional
Deferred Stock Units) credited to the Participant’s Account by the Closing Price on that date.



     (d) In the event of a transaction or event described in this subsection (d), the number of
Deferred Stock Units credited to a Participant’s Account shall be adjusted in such manner as the
Board, in its sole discretion, deems equitable. A transaction or event is described in this
subsection (d) if (i) it is a dividend (other than regular quarterly dividends) or other
distribution (whether in the form of cash, shares, other securities, or other property),
extraordinary cash dividend, recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, split-up, spin-off, repurchase, or exchange of shares or other securities,
the issuance or exercisability of stock purchase rights, the issuance of warrants or other rights
to purchase shares or other securities, or other similar corporate transaction or event and (ii)
the Board determines that such transaction or event affects the shares of the Corporation’s common
stock, such that an adjustment pursuant to this subsection (d) is appropriate to prevent dilution
or enlargement of the benefits or potential benefits intended to be made available under the Plan.



4.02 Hypothetical Nature of Accounts and Investments




     The Accounts established under this Article IV shall be maintained for bookkeeping purposes
only. Neither the Plan nor the Accounts established under the Plan shall hold any actual funds or
assets. The Deferred Stock Units established hereunder shall be used solely to



6









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009





determine the amounts to be paid hereunder, shall not represent an equity security of the
Corporation, and shall not carry any voting or dividend rights.



ARTICLE V

Vesting




     A Participant’s Account shall be fully vested and non-forfeitable at all times.



ARTICLE VI

Payment




6.01 Termination of Employment




     A Participant’s Account shall become payable to the Participant on the first day of the month
following his Termination of Employment, provided, however, that in the case of an individual who
is a Key Employee on his Termination of Employment, the lump sum shall be paid on the first day of
the month following the six (6) month anniversary of the Participant’s Termination of Employment.



6.02 Payment of Death Benefit




     The Account of a Participant who dies prior to the payment of his Account under Plan section
6.01 shall be payable to his Beneficiary thirty (30) days following the date of the Participant’s
death.



6.03 Form of Payment




     A Participant’s Account shall be paid either (a) in a lump sum in shares of the Corporation’s
common stock, with any fractional share paid in cash, or (b) at the Corporation’s election, in a
lump sum in cash in an amount equal to the dollar value of the Deferred Stock Units credited to the
Participant’s Account on the date the Participant’s Termination of Employment. The payment of such
shares shall be made pursuant to the NII Holdings, Inc. 2004 Incentive Compensation Plan. The
dollar value of the Deferred Stock Units credited to a Participant’s Account for purposes of clause
(b) of this Plan section 6.03, shall be determined by multiplying the number of Deferred Stock
Units (including fractional Deferred Stock Units) credited to the Participant’s Account by the
Closing Price on the date of the Participant’s Termination of Employment. Any election by the
Corporation pursuant to clause (b) of this Plan section 6.03 shall be made by the Compensation
Committee of the Board.



7









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009



6.04 Benefit Determination and Payment Procedure




     The Administrator shall make all determinations concerning eligibility for benefits under the
Plan, the time or terms of payment, and the form or manner of payment to the Participant or the
Participant’s Beneficiary, in the event of the death of the Participant. The Administrator shall
promptly notify the Corporation of each such determination that benefit payments are due and
provide to the Corporation all other information necessary to allow the Corporation to carry out
such determination, whereupon the Corporation shall pay such benefits in accordance with the
Administrator’s determination.



6.05 Distribution of Benefit When Distributee Cannot Be Located




     The Administrator shall make all reasonable attempts to determine the identity and/or
whereabouts of a Participant or a Participant’s Beneficiary entitled to benefits under the Plan,
including the mailing by certified mail of a notice to the last known address shown on the
Corporation’s or the Administrator’s records. If the Administrator is unable to locate such a
person entitled to benefits hereunder, or if there has been no claim made for such benefits, the
Corporation shall continue to hold the benefit due such person, subject to any applicable statute
of escheats.



6.06 Acceleration of Benefits Prohibited




     Except as provided in Treasury Regulation section 1.409A-3(j), no acceleration in the time or
schedule of any payment or amount scheduled to be paid from the Participant’s Account is permitted.



6.07 Beneficiary Designation




     A Participant may designate a Beneficiary to receive the value of his or her Account upon
death. Any Beneficiary designation made hereunder shall be effective only if properly signed and
dated by the Participant and delivered to the Administrator prior to the time of the Participant’s
death. Any Beneficiary designation hereunder shall remain effective until changed or revoked
hereunder. A Beneficiary designation may be changed by the Participant at any time, or from time
to time, by filing a new designation in writing with the Administrator. If the Participant dies
without having designated a Beneficiary, or if the Beneficiary so designated has predeceased him,
then his estate shall be deemed to be his Beneficiary.



8









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009



6.08 Claims Procedure




     (a) Any claim by a Participant or his or her Beneficiary (hereafter the “Claimant”) for
benefits shall be submitted in writing to the Administrator. The Administrator shall be
responsible for deciding whether such claim is payable, or the claimed relief otherwise is
allowable, under the provisions and rules of the Plan (a “Covered Claim”) and in accordance with
the requirements of the Employee Retirement Income Security Act of 1974, as amended, and Department
of Labor regulations thereunder. As such, the Administrator shall be responsible for providing a
full review of the Administrator’s decision with regard to any claim, upon a written request.



     (b) Each Claimant or other interested person shall file with the Administrator such pertinent
information as the Administrator may specify, and in such manner and form as the Administrator may
specify; and, such person shall not have any rights or be entitled to any benefits, or further
benefits, hereunder, as the case may be, unless the required information is filed by the Claimant
or on behalf of the Claimant. Each Claimant shall supply, at such times and in such manner as may
be required, written proof that the benefit is covered under the Plan. If it is determined that a
Claimant has not incurred a Covered Claim or if the Claimant shall fail to furnish such proof as is
requested, no benefits, or no further benefits, hereunder, as the case may be, shall be payable to
such Claimant.



ARTICLE VII

Plan Administration




7.01 Appointment of Administrator




     The Committee may appoint one or more persons to serve as the Administrator for the purpose of
administering the Plan. In the event more than one person is appointed, the persons shall form a
committee for the purpose of functioning as the Administrator. The person or persons serving as
Administrator shall serve for indefinite terms at the pleasure of the Committee, and may, by thirty
(30) days prior written notice to the Committee, terminate such appointment.



7.02 Duties and Responsibilities of Plan Administrator




     (a) The Administrator shall maintain and retain necessary records regarding its administration
of the Plan.



     (b) The Administrator is empowered to settle claims against the Plan and to make such
equitable adjustments in a Participant’s or Beneficiary’s rights or entitlements under the



9









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009





Plan as it deems appropriate in the event an error or omission is discovered or claimed in the
operation or administration of the Plan.



     (c) The Administrator may construe the Plan, correct defects, supply omissions or reconcile
inconsistencies to the extent necessary to effectuate the Plan, and such action shall be
conclusive.



     (d) The Administrator, in its discretion, may delegate to one or more third party
administrators all or part of the Administrator’s duties with respect to the administration of the
Plan. The Administrator may consult with counsel, who may be counsel to the Corporation, and shall
not incur any liability for any action taken in good faith in reliance upon the advice of counsel.
The Administrator may revoke or amend the terms of a delegation or consultation at any time but
such action shall not invalidate any prior actions of the Administrator’s delegate or delegates
that were consistent with the terms of the Plan. The express grant in the Plan of any specific
power to the Administrator shall not be construed as limiting any power or authority of the
Administrator. Any decision made, or action taken, by the Administrator or in connection with the
administration of this Plan shall be final and conclusive. All expenses of administering this Plan
shall be borne by the Corporation.



ARTICLE VIII

Amendment or Termination of Plan




     The Plan may be terminated or amended at any time by the Board, effective as of any date
specified provided, however, that any termination must comply with the requirements of Code section
409A. Any such action taken by the Board shall be evidenced by a resolution and shall be
communicated to Participants and Beneficiaries prior to the effective date thereof. No amendment
or termination shall decrease the value of a Participant’s Account accrued prior to the effective
date of the amendment or termination.



ARTICLE IX

Miscellaneous




9.01 Unfunded Plan




     All Plan Participants and Beneficiaries are general unsecured creditors of the Corporation
with respect to the benefits due hereunder and the Plan constitutes a mere promise by the
Corporation to make benefit payments in the future. It is the intention of the Corporation that
the Plan be considered unfunded for tax purposes.



10









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009



9.02 Non-assignability




     The interests of each Participant under the Plan are not subject to claims of the
Participant’s creditors; and neither the Participant nor his Beneficiary shall have any right to
sell, assign, transfer or otherwise convey the right to receive any payments hereunder or any
interest under the Plan, which payments and interest are expressly declared to be non-assignable
and non-transferable.



9.03 Notices and Elections




     All notices required to be given in writing and all elections required to be made in writing
under any provision of the Plan shall be invalid unless made on such forms as may be provided or
approved by the Administrator and, in the case of a notice or election by a Participant or
Beneficiary, unless executed by the Participant or Beneficiary giving such notice or making such
election. Notices and elections shall be deemed given or made when received by any member of the
committee that serves as Administrator.



9.04 Governing Law




     The Plan shall be construed, enforced and administered in accordance with the laws of the
State of Delaware, without regard to principles of conflicts of laws, except to the extent such
laws are preempted by the Federal laws of the United States of America. This Plan is intended to
comply with the distribution and other applicable requirements of Section 409A of the Code, and
shall be interpreted and applied consistent with the requirements of Section 409A of the Code (to
the extent applicable).



9.05 Binding Effect




     The Plan shall be binding upon and inure to the benefit of the Corporation, its successors and
assigns, and the Participant and his heirs, executors, administrators and legal representatives.



9.06 Severability




     If any provision of the Plan should for any reason be declared invalid or unenforceable by a
court of competent jurisdiction, the remaining provisions shall nevertheless remain in full force
and effect.



9.07 Gender and Number




     In the construction of the Plan, the masculine shall include the feminine or neuter and the
singular shall include the plural and vice-versa in all cases where such meanings would be
appropriate.



11









 




NII Holdings, Inc.

Executive Voluntary Deferral Plan

Effective January 1, 2009



9.08 Titles and Captions




     Titles and captions and headings herein have been inserted for convenience of reference only
and are to be ignored in any construction of the provisions hereof.




12