EXHIBIT 10.38
AMENDMENT NUMBER ONE
TO THE
PRICELINE.COM INCORPORATED
1999 OMNIBUS PLAN
WHEREAS, priceline.com Incorporated (the "Company") maintains
the priceline.com Incorporated 1999 Omnibus Plan (the "Plan");
WHEREAS, the Board of Directors of the Company (the "Board"),
acting through the Compensation Committee, is authorized to amend the Plan,
subject to stockholder approval in certain instances; and
WHEREAS, the Board desires to amend the Plan, subject to
stockholder approval.
NOW, THEREFORE, effective immediately, but subject to, and
conditioned upon, approval of this amendment by the stockholders of the
Company in accordance with the requirements of the laws of the State of
Delaware at the next annual stockholders meeting, the Plan is amended as
follows:
1. Section 2(i) of the Plan is amended in its entirety to read
as follows:
" (i) "Committee" means (1) with respect to the application of this
Plan to employees and consultants, a committee established by the
Board, which committee shall be intended to consist of two or more
non-employee directors, each of whom shall be a "non-employee
director" as defined in Rule 16b-3 of the Exchange Act and an
"outside director" as defined under Section 162(m) of the Code and
(2) with respect to the application of this Plan to Non-Employee
Directors, the Board.
2. Section 2(y) of the Plan is amended in its entirety to read
as follows:
"(y) "Participant" shall mean (i) an employee, consultant or
Non-Employee Director of the Company to whom an Award is granted
hereunder and (2) any such persons successors, heirs, executors and
administrators, as the case may be, in such capacity.
3. Section 3 of the Plan is amended by replacing the first
sentence thereof with the following:
"The maximum number of shares of Stock reserved for the grant or
settlement of Awards under the Plan shall be 25,375,000 shares,
subject to adjustment as provided herein."
4. Section 6 of the Plan shall be amended in its entirety to
read as follows:
"6. Awards Under the Plan; Non-Employee Director Grants
(a) Grants. The Committee may grant Options, Restricted Stock and
Other Stock-Based Awards to Participants in such amounts and on such
terms and conditions, not inconsistent with the Plan, as the
Committee shall determine in its sole and absolute discretion.
(b) Non-Employee Director Grants. Unless determined otherwise by the
Committee in its sole and absolute discretion, and without further
action by the Board or the stockholders of the Company, each
Non-Employee Director shall, subject to the terms of the Plan, be
granted a Non-Qualified Option to purchase (1) 20,000 shares of Stock
as of the date the Non-Employee Director begins service as a
Non-Employee Director and (2) an additional Option to purchase 10,000
shares of Stock as of the first business day following each annual
meeting of stockholders of the Company, provided that the individual
is a Non-Employee Director on such date. Unless otherwise determined
by the Committee at the time of grant, each such Option shall be for
a ten (10) year term, shall become exercisable as to one-third of the
shares subject to the Option on the first anniversary of the date of
grant and as to the balance monthly in equal installments over the
next twenty-four months following such first anniversary, shall be
granted at a per share exercise price equal to the Fair Market Value
and otherwise be in accordance with Section 7 of this Plan.
(c) Agreements. Each Award granted under the Plan shall be evidenced
by an Agreement that shall contain such provisions as the Committee
may, in its sole and absolute discretion, deem necessary or
desirable. By accepting an Award, a Participant thereby agrees that
the Award shall be subject to all terms and provisions of the Plan
and the applicable Agreement.
(d) Notwithstanding the above, no grants under Section (b) above
shall be made to the extent it would exceed the limitations set forth
in Section 3 of the Plan with any grants then due being cut back pari
passu and such non-made grants automatically being made at such time
as they may be made under Section 3 (other than as a result of an
amendment thereof).
5. Section 10 of the Plan is amended by replacing the first
sentence thereof with the following:
"Notwithstanding anything in the Plan to the contrary, upon the
occurrence of a Change in Control, any Award issued prior to April
25, 2000 carrying a right to exercise that was not previously
exercisable and vested, shall become fully exercisable and vested and
the restriction and forfeiture conditions applicable to any other
such Award shall lapse and such Award shall be deemed fully vested.
In the case of any Award made on or after the aforesaid date, no
acceleration of exercisability, vesting or lapsing shall occur on a
Change in Control except to the extent, if any, provided in the
specific Award Agreement or as otherwise determined by the Committee
or the Board."
IN WITNESS WHEREOF, this Amendment has been executed this th
day of ____, 2000.
PRICELINE.COM INCORPORATED
By:___________________________