EXHIBIT 4.1
XILINX, INC.
1990 EMPLOYEE QUALIFIED STOCK PURCHASE PLAN
The following constitute the provisions of the 1990 Employee Qualified
Stock Purchase Plan, as amended August 6, 1998. (herein called the
"Plan") of Xilinx, Inc. (herein called the "Company").
1. Purpose. The purpose of the Plan is to provide employees of the
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Company and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company through accumulated payroll deductions. It is the
intention of the Company to have the Plan qualify as an "Employee Stock
Purchase Plan" under Section 423 of the Internal Revenue Code of 1986, as
amended. The provisions of the Plan shall, accordingly, be construed so as to
extend and limit participation in a manner consistent with the requirements of
that section of the Code.
2. Definitions.
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(a) "Board" shall mean the Board of Directors of the Company.
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(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
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(c) "Common Stock" shall mean the Common Stock, $0.01 par value per
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share, of the Company.
(d) "Company" shall mean Xilinx, Inc., a Delaware corporation.
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(e) "Compensation" shall mean all regular straight time earnings, and
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all payments for overtime, shift premium, incentive compensation, incentive
payments, bonuses, commissions or other compensation.
(f) "Designated Subsidiaries" shall mean the Subsidiaries which
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have been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(g) "Employee" shall mean any individual who is an employee of the
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Company or any Designated Subsidiary for purposes of tax withholding under the
Code whose customary employment with the Company or any Designated Subsidiary
is at least twenty (20) hours per week and more than five (5) months in any
calendar year. For purposes of the Plan, the employment relationship shall be
treated as continuing intact while the individual is on sick leave or other
leave of absence approved by the Company. Where the period of leave exceeds
90 days and the individual's right to reemployment is not guaranteed either by
statute or by contract, the employment relationship will be deemed to have
terminated on the 91st day of such leave.
(h) "Exercise Date" shall mean the date one day prior to the date
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six months, twelve months, eighteen months or twenty-four months after the
Offering Date of each Offering Period.
(i) "Exercise Period" shall mean a period commencing on an Offering
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Date or on the day after an Exercise Date and terminating one day prior to the
date six (6) months later.
(j) "Offering Period" shall mean a period of twenty-four (24) months
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consisting of four six-month Exercise Periods during which options granted
pursuant to the Plan may be exercised.
(k) "Offering Date" shall mean the first day of each Offering Period
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of the Plan.
(l) "Plan" shall mean this 1990 Employee Qualified Stock Purchase Plan.
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(m) "Subsidiary" shall mean a corporation, domestic or foreign, of
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which not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter
organized or acquired by the Company or a Subsidiary.
(n) "Trading Day" shall mean a day on which national stock exchanges
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and the National Association of Securities Dealers Automated Quotation
(NASDAQ) System are open for trading.
3. Eligibility.
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(a) Any Employee as defined in paragraph 2 who shall be employed by
the Company on the date his participation in the Plan is effective shall be
eligible to participate in the Plan, subject to limitations imposed by Section
423(b) of the Code.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) if, immediately after
the grant, such Employee (or any other person whose stock would be attributed
to such Employee pursuant to Section 424(d) of the Code) would own stock
and/or hold outstanding options to purchase stock possessing five percent (5%)
or more of the total combined voting power or value of all classes of stock of
the Company or of any subsidiary of the Company, or (ii) which permits his
rights to purchase stock under all employee stock purchase plans of the
Company and its subsidiaries to accrue at a rate which exceeds Twenty-Five
Thousand Dollars ($25,000) of fair market value of such stock (determined at
the time such option is granted) for each calendar year in which such option
is outstanding at any time.
4. Offering Periods. The plan shall be implemented by consecutive,
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overlapping twenty-four month Offering Periods with a new Offering Period
commencing on the first day of January and July of each year, the first of
which shall commence on July 1, 1990. The Plan shall continue thereafter
until terminated in accordance with paragraph 20 hereof. Subject to the
requirements of paragraph 20, the Board of Directors of the Company shall have
the power to change the duration of Offering Periods with respect to future
offerings without stockholder approval if such change is announced at least
fifteen (15) days prior to the scheduled beginning of the first Offering
Period to be affected.
5. Participation.
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(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions on a form
provided by the Company and filing it with the Company's payroll office at
least ten (10) business days prior to the applicable Offering Date, unless a
later time for filing the subscription agreement is set by the Board for all
eligible Employees with respect to a given offering.
(b) Payroll deductions for a participant shall commence on the first
payroll following the Offering Date and shall end on the Exercise Date of the
offering to which such authorization is applicable, unless sooner terminated
by the participant as provided in paragraph 11.
6. Payroll Deductions.
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(a) At the time a participant files his subscription agreement, he
shall elect to have payroll deductions made on each payday during the Offering
Period in an amount not exceeding fifteen percent (15%) nor less than two
percent (2%) of his or her Compensation. The aggregate of such payroll
deductions during any Offering Period shall not exceed fifteen percent (15%)
of his aggregate Compensation during said Offering Period.
(b) All payroll deductions made by a participant shall be credited to
his or her account under the Plan and will be with-held in whole percentages
only. A participant may not make any additional payments into such account.
(c) A participant may discontinue his or her participation in the
Plan as provided in paragraph 11, or may decrease or increase the rate or
amount of his or her payroll deductions during the Offering Period (within the
limitations of Section 6(a)) by completing and filing with the Company a new
subscription agreement authorizing a change in the rate or amount of payroll
deductions; provided, however, that a participant may not decrease the rate or
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amount of his or her payroll deductions more than once in any month, and may
not increase the rate or amount of his or her payroll deductions more than
once in any Exercise Period. The change in rate shall be effective fifteen
(15) days following the Company's receipt of the new authorization or after
such shorter period as may be permitted by the Company. Subject to the
limitations of Section 6(a), a participant's subscription agreement shall
remain in effect for successive Offering Periods unless revised as provided
herein or terminated as provided in paragraph 11.
(d) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and paragraph 3(b) herein, a participant's
payroll deductions may be decreased to 0% at such time during any Exercise
Period which is scheduled to end during the current calendar year that the
aggregate of all payroll deductions accumulated with respect to such Exercise
Period and any other Exercise Period ending within the same calendar year
equal $21,250. Payroll deductions shall recommence at the rate provided in
such participant's subscription agreement at the beginning of the first
Exercise Period which is scheduled to end in the following calendar year,
unless terminated by the participant as provided in paragraph 11.
(e) At the time the option is exercised, in whole or in part, or at
the time some or all of the Company's Common Stock issued under the Plan is
disposed of, the participant must make adequate provision for the Company's
federal, state, or other tax withholding obligations, if any, which arise upon
the exercise of the option or the disposition of the Common Stock. At any
time, the Company may, but will not be obligated to, withhold from the
participant's compensation the amount necessary for the Company to meet
applicable withholding obligations, including any withholding required to make
available to the Company any tax deductions or benefits attributable to sale
or early disposition of Common Stock by the Employee.
7. Grant of Option.
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(a) On the Offering Date of each Offering Period, each eligible
Employee participating in such Offering Period shall be granted an option to
purchase on each Exercise Date during such Offering Period (at the per share
option price) up to a number of shares of the Company's Common Stock
determined by dividing such Employee's payroll deductions accumulated prior
to such Exercise Date and retained in the Participant's account as of the
Exercise Date by the lower of (i) eighty-five percent (85%) of the fair market
value of a share of the Company's Common Stock on the Offering Date or (ii)
eighty-five percent (85%) of the fair market value of a share of the Company's
Common Stock on the Exercise Date; provided, however, that the maximum number
of Shares an Employee may purchase during each Offering Period shall be
deter-mined at the Offering Date by dividing $50,000 by the fair market value
of a share of the Company's Common Stock on the Offering Date, and provided
further that such purchase shall be subject to the limitations set forth in
Section 3(b) and 13 hereof. Exercise of each option during the Offering
Period shall occur as provided in Section 8, unless the participant has
withdrawn pursuant to Section 11, and each option shall expire at midnight on
the last day of the applicable Exercise Period. Fair market value of a share
of the Company's Common Stock shall be determined as provided in Section 7(b)
herein.
(b) The option price per share of the shares offered in a given
Exercise Period shall be the lower of: (i) 85% of the fair market value of a
share of the Common Stock of the Company on the Offering Date; or (ii) 85% of
the fair market value of a share of the Common Stock of the Company on the
Exercise Date. The fair market value of the Company's Common Stock on a given
date shall be determined by the Board in its discretion; provided, however,
that where there is a public market for the Common Stock, the fair market
value per share shall be the closing price of the Common Stock for such date,
as reported by the NASDAQ National Market System, or, in the event the Common
Stock is listed on a stock exchange, the fair market value per share shall be
the closing price on such exchange on such date, as reported in the Wall
Street Journal. In the event the Offering Date or the Exercise Date occurs on
a weekend or legal holiday, the fair market value shall be based on the
closing bid price on the next Trading Day.
8. Exercise of Option. Unless a participant withdraws from the Plan
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as provided in Section 11, hereof, his or her option for the purchase of
shares shall be exercised automatically on the Exercise Date, and the maximum
number of full shares subject to option shall be purchased for such
participant at the applicable Purchase Price with the accumulated payroll
deductions in his or her account. No fractional shares shall be purchased;
any payroll deductions accumulated in a participant's account which are not
sufficient to purchase a full share shall be retained in the participant's
account during an Offering Period or subsequent Offering Periods, subject to
earlier withdrawal by the participant as provided in Section 10 hereof. Any
other monies left over in a participant's account after the Exercise Date
shall be returned to the participant. During a participant's lifetime, a
participant's option to purchase shares hereunder is exercisable only by him
or her.
9. Delivery. As promptly as practicable after the Exercise Date of
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each Exercise Period, the Company shall arrange the delivery to each
participant, as appropriate, of a certificate representing the shares
purchased upon exercise of his or her option. Any cash remaining to the
credit of a participant's account under the Plan after a purchase by him or
her of shares at the termination of each Exercise Period which is
insufficient to purchase a full share of Common Stock of the Company shall be
applied to the participant's account for the next Exercise Period.
10. Automatic Transfer to Low Price Offering Period. In the event
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that the fair market value of the Company's Common Stock is lower on an
Exercise Date than it was on the first Offering Date for that Offering Period,
all Employees participating in the Plan on the Exercise Date shall be deemed
to have withdrawn from the Offering Period immediately after the exercise of
their option on such Exercise Date and to have enrolled as participants in a
new Offering Period which begins on or about the day following such Exercise
Date. A participant may elect to remain in the previous short Offering Period
by filing a written statement declaring such election with the Company prior
to the time of the automatic change to the new Offering Period.
11. Withdrawal; Termination of Employment.
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(a) A participant may withdraw all but not less than all the payroll
deductions credited to his or her account and not yet used to exercise his or
her option under the Plan at any time by giving written notice to the Company
pursuant to a form to be pro-vided by the Company. All of the participant's
payroll deductions credited to his or her account will be paid to such
participant as promptly as practicable after receipt of notice of withdrawal
and such participant's remaining option or options for the Offering Period
will be automatically terminated, and no further payroll deductions for the
purchase of shares will be made during the Offering Period. If a participant
withdraws from an Offering Period, payroll deductions will not resume at the
beginning of the succeeding Offering Period unless the participant delivers to
the Company a new subscription agreement.
(b) Upon a participant's ceasing to be an Employee prior to an
Exercise Date for any reason, including retirement or death, or upon
termination of a participant's employment relationship (as described in
Section 2(g)), the payroll deductions credited to such participant's account
during the Exercise Period but not yet used to exercise the option will be
returned to such participant or, in the case of his or her death, to the
person or persons entitled thereto under paragraph 15, and such participant's
remaining option or options will be automatically terminated.
The preceding sentence notwithstanding, a participant who receives
payment in lieu of notice of termination of employment shall be treated as
continuing to be an Employee for the participant's customary number of hours
per week of employment during the period in which the participant is subject
to such payment in lieu of notice.
(c) In the event an Employee fails to remain an Employee of the
Company for at least twenty (20) hours per week during an Offering Period in
which the Employee is a participant, he or she will be deemed to have elected
to withdraw from the Plan and the payroll deductions credited to his or her
account will be returned to such participant and such participant's remaining
option or options terminated.
(d) A participant's withdrawal from an Offering Period will not have
any effect upon his or her eligibility to participate in any similar plan
which may hereafter be adopted by the Company or in succeeding Offering
Periods which commence after the termination of the Offering Period from
which the participant withdraws.
12. Interest. No interest shall accrue on the payroll deductions of a
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participant in the Plan.
13. Stock.
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(a) The maximum number of shares of the Company's Common Stock which
shall be made available for sale under the Plan shall be 6,385,000 shares,
subject to adjustment upon changes in capitalization of the Company as
provided in paragraph 19. If on a given Exercise Date the number of shares
with respect to which options are to be exercised exceeds the number of shares
then available under the Plan (after deduction of all shares for which options
have been exercised or are then outstanding), the Company shall make a pro
rata allocation of the shares remaining available for option grant in as
uniform a manner as shall be practicable and as it shall determine to be
equitable. In such event, the Company shall give written notice of such
reduction of the number of shares subject to the option to each Employee
affected thereby and shall similarly reduce the rate of payroll deductions, if
necessary.
(b) The participant will have no interest or voting right in shares
covered by his option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant or in the name of the participant
and his spouse.
14. Administration.
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(a) Administrative Body. The Plan shall be administered by the Board
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or a committee of members of the Board appointed by the Board. The Board or
its committee shall have full and exclusive discretionary authority to
construe, interpret and apply the terms of the Plan, to determine eligibility
and to adjudicate all disputed claims filed under the Plan. Every finding,
decision and determination made by the Board or its committee shall, to the
full extent permitted by law, be final and binding upon all parties.
(b) Rule 16b-3 Limitations. Notwithstanding the provisions of
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Subsection (a) of this Section 14, in the event that Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any successor provision ("Rule 16b-3") provides specific requirements for the
administrators of plans of this type, the Plan shall be only administered by
such a body and in such a manner as shall comply with the applicable
requirements of Rule 16b-3. Unless permitted by Rule 16b-3, no discretion
concerning decisions regarding the Plan shall be afforded to any committee or
person that is not "disinterested" as that term is used in Rule 16b-3.
15. Designation of Beneficiary.
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(a) A participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the participant's account
under the Plan in the event of such participant's death subsequent to the end
of the Offering Period but prior to delivery to him of such shares and cash.
In addition, a participant may file a written designation of a beneficiary who
is to receive any cash from the participant's account under the Plan in the
event of such participant's death prior to the Exercise Date of the offering
period.
(b) Such designation of beneficiary may be changed by the participant
at any time by written notice. In the event of the death of a participant and
in the absence of a beneficiary validly designated under the Plan who is
living at the time of such participant's death, the Company shall deliver
such shares and/or cash to the executor or administrator of the estate of the
participant, or if no such executor or administrator has been appointed (to
the knowledge of the Company), the Company, in its discretion, may deliver
such shares and/or cash to the spouse or to any one or more dependents or
relatives of the participant, or if no spouse, dependent or relative is known
to the Company, then to such other person as the Company may designate.
16. Transferability. Neither payroll deductions credited to a
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participant's account nor any rights with regard to the exercise of an option
or to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in paragraph 15 hereof) by the participant. Any
such attempt at assignment, transfer, pledge or other disposition shall be
without effect, except that the Company may treat such act as an election to
withdraw funds from an Offering Period in accordance with paragraph 11.
17. Use of Funds. All payroll deductions received or held by the
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Company under the Plan may be used by the Company for any corporate purpose,
and the Company shall not be obligated to segregate such payroll deductions.
18. Reports. Individual accounts will be maintained for each
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participant in the Plan. Statements of account will be given to participating
Employees annually, which statements will set forth the amounts of payroll
deductions, the per share purchase price, the number of shares purchased and
the remaining cash balance, if any.
19. Adjustments Upon Changes in Capitalization. Subject to any
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required action by the stockholders of the Company, the number of shares of
Common Stock covered by each option under the Plan which has not yet been
exercised and the number of shares of Common Stock which have been authorized
for issuance under the Plan but have not yet been placed under option
(collectively, the "Reserves") as well as the price per share of Common Stock
covered by each option under the Plan which has not yet been exercised, shall
be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock resulting from a stock split, reverse stock
split, stock dividend, combination or reclassification of the Common Stock,
or any other increase or decrease in the number of shares of Common Stock
effected without receipt of consideration by the Company; provided, however,
that conversion of any convertible securities of the Company shall not be
deemed to have been "effected without receipt of consideration". Such
adjustment shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein,
no issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
of Common Stock subject to an option.
In the event of the proposed dissolution or liquidation of the Company,
the Offering Period will terminate immediately prior to the consummation of
such proposed action, unless otherwise provided by the Board. In the event of
a proposed sale of all or substantially all of the assets of the Company, or
the merger of the Company with or into another corporation, each option under
the Plan shall be assumed or an equivalent option shall be substituted by such
successor corporation or a parent or subsidiary of such successor corporation,
unless the Board determines, in the exercise of its sole discretion and in
lieu of such assumption or substitution, to shorten the Offering Period then
in progress by setting a new Exercise Date (the "New Exercise Date"). If the
Board shortens the Offering Period then in progress in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board shall
notify each participant in writing, at least thirty (30) days prior to the New
Exercise Date, that the Exercise Date for his option has been changed to the
New Exercise Date and that his option will be exercised automatically on the
New Exercise Date, unless prior to such date he has withdrawn from the
Offering Period as provided in paragraph 11. For purposes of this paragraph,
an option granted under the Plan shall be deemed to be assumed if, following
the sale of assets or merger the option confers the right to purchase, for
each share of option stock subject to the option immediately prior to the sale
of assets or merger the consideration (whether stock, cash or other
securities or property) received in the sale of assets or merger by holders of
Common Stock for each share of Common Stock held on the effective date of the
transaction (and if such holders were offered a choice of consideration, the
type of consideration chosen by the holders of a majority of the outstanding
shares of Common Stock); provided, however, that if such consideration
received in the sale of assets or merger was not solely common stock of the
successor corporation or its parent (as defined in Section 424(e) of the
Code), the Board may, with the consent of the successor corporation and the
participant, provide for the consideration to be received upon exercise of
the option to be solely common stock of the successor corporation or its
parent equal in fair market value to the per share consideration received by
holders of Common Stock in the sale of assets or merger.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the
price per share of Common Stock covered by each out-standing option, in the
event that the Company effects one or more reorganizations, recapitalizations,
rights offerings or other increases or reductions of shares of its outstanding
Common Stock, and in the event of the Company being consolidated with or
merged into any other corporation.
20. Amendment or Termination.
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(a) The Board of Directors of the Company may at any time and for any
reason terminate or amend the Plan. Except as provided in paragraph 19, no
such termination can affect options previously granted, provided that an
Offering Period may be terminated by the Board of Directors on any Exercise
Date if the Board determines that the termination of the Plan is in the best
interests of the Company and its stockholders. Except as provided in
paragraph 19, no amendment may make any change in any option theretofore
granted which adversely affects the rights of any participant. To the extent
necessary to comply with Rule 16b-3 under the Securities Exchange Act of 1934,
as amended, or under Section 423 of the Code (or any successor rule or
provision or any other applicable law or regulation), the Company shall obtain
stockholder approval in such a manner and to such a degree as required.
(b) Without stockholder consent and without regard to whether any
participant rights may be considered to have been "adversely affected," the
Board (or its committee) shall be entitled to change the Offering Periods,
limit the frequency and/or number of changes in the amount withheld during an
Offering Period, establish the exchange ratio applicable to amounts withheld
in a currency other than U.S. dollars, permit payroll withholding in excess of
the amount designated by a participant in order to adjust for delays or
mistakes in the Company's processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods and/or
accounting and crediting procedures to ensure that amounts applied toward the
purchase of Common Stock for each participant properly correspond with amounts
withheld from the participant's Compensation, and establish such other
limitations or procedures as the Board (or its committee) determines in its
sole discretion advisable which are consistent with the Plan.
21. Notices. All notices or other communications by a participant to
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the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company at the location,
or by the person, designated by the Company for the receipt thereof.
22. Conditions Upon Issuance of Shares. Shares shall not be issued
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with respect to an option unless the exercise of such option and the issuance
and delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the shares may then be listed,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
As a condition to the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any such
exercise that the shares are being purchased only for investment and without
any present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned applicable provisions of law.
23. Term of Plan. The Plan shall become effective upon the earlier
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to occur of its adoption by the Board of Directors or its approval by the
stockholders of the Company. It shall continue for a term of twenty (20)
years unless sooner terminated under Section 20.
EXHIBIT A - 1990 EMPLOYEE QUALIFIED STOCK PURCHASE PLAN SUBSCRIPTION AGREEMENT
EXHIBIT B - 1990 EMPLOYEE QUALIFIED STOCK PURCHASE PLAN NOTICE OF WITHDRAWAL