exv4w1






Exhibit 4.1




EXECUTION COPY




AMENDMENT NO. 1

TO

RIGHTS AGREEMENT




          AMENDMENT NO. 1, dated as of May 16, 2010 (the “Amendment”), to the Rights Agreement,
dated as of September 27, 2000 (the “Agreement”), between OSI Pharmaceuticals, Inc., a
Delaware corporation (the “Company” or “OSI”), and The Bank of New York Mellon
(f/k/a The Bank of New York), a New York banking corporation, as Rights Agent (the “Rights
Agent”). Terms used but not otherwise defined herein shall have the meanings ascribed to such
respective terms in the Agreement.



W I T N E S S E T H:




          WHEREAS, the Company proposes to enter into an Agreement and Plan of Merger (as the same may
be amended from time to time, the “Merger Agreement”), by and among Astellas Pharma Inc.
(“Parent”), a corporation formed under the laws of Japan, Astellas US Holding, Inc.
(“Holding”), a Delaware corporation and wholly-owned subsidiary of Parent, Ruby Acquisition, Inc.
(“Merger Sub”), a Delaware corporation and wholly-owned subsidiary of Holding, and OSI,
pursuant to which it is proposed that, among other things, (i) Merger Sub will amend its
outstanding cash tender offer to acquire all the issued and outstanding shares of common stock, par
value $0.01 per share, of the Company at $57.50 per share in cash (the “Offer”), and (ii)
following the consummation of the Offer and satisfaction or waiver of certain conditions, Merger
Sub will merge with and into the Company with the Company continuing as the surviving corporation
(the “Merger”); and



          WHEREAS, Section 26 of the Agreement provides that, prior to the Distribution Date, the
Company and the Rights Agent shall, if the Company so directs, supplement or amend any provision of
the Agreement without the approval of any holders of shares of Common Stock or Rights, including
supplements or amendment that may be deemed to affect adversely the interest of the holders of
Rights; and



          WHEREAS, on May 16, 2010, the Board of Directors of the Company determined it to be advisable
and in the best interests of the Company and its stockholders to supplement and amend the Agreement
as set forth herein immediately prior to and in connection with the execution and delivery of the
Merger Agreement; and



          WHEREAS, an officer of the Company has delivered to the Rights Agent a certificate as to the
compliance of this Amendment with the terms of Section 26 of the Agreement; and



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          WHEREAS, the Board of Directors of the Company has approved this Amendment and has authorized
its appropriate officers to execute and deliver the same to the Rights Agent.



          NOW, THEREFORE, in accordance with Section 26 of the Agreement, and in consideration of the
foregoing and the mutual agreements herein set forth and in the Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:



     Section 1. Amendments to the Agreement.



          1.1 The definition of “Acquiring Person” in Section 1(a) of the Agreement is hereby
amended by inserting the following new sentence at the end thereof:




“Notwithstanding anything in this Agreement to the contrary, none of Astellas Pharma
Inc., a corporation formed under the laws of Japan (“Parent”), Astellas US
Holding, Inc., a Delaware corporation and a wholly owned subsidiary of Parent
(“Holding”), Ruby Acquisition, Inc., a Delaware corporation and wholly-owned
subsidiary of Holding (“Merger Sub”), nor any of their respective Affiliates
or Associates shall be deemed to be an “Acquiring Person” hereunder, either
individually or collectively, by virtue of (A) the approval, execution, delivery or
adoption of that certain Agreement and Plan of Merger to be entered into among
Parent, Merger Sub and the Company (as may be amended from time to time, the
“Merger Agreement”), or the approval, execution or delivery of any amendment
thereto; (B) the consummation of any of the transactions contemplated by the Merger
Agreement, including, the tender offer to acquire all of the outstanding shares of
Common Stock and the associated Rights by Parent or Merger Sub (as it may be amended
and/or extended from time to time pursuant to the terms of the Merger Agreement, the
“Offer”) and the consummation of the merger of Merger Sub with and into the
Company (the “Merger”); or (C) the public announcement of any of the Merger
Agreement, the Offer, the Merger or any of the other transactions contemplated by
the Merger Agreement (such actions described in this sentence, the “Permitted
Events”).



          1.2 The definition of “Permitted Offer” in Section 1(o) of the Agreement is hereby amended to
add the following sentence to the end thereof:




“For the avoidance of doubt, the Offer and the other transactions contemplated by
the Merger Agreement shall constitute a “Permitted Offer” hereunder.”



          1.3 The following definitions are hereby added to Section 1 of the Agreement.




“Merger” has the meaning assigned thereto in Section 1(a).




“Merger Agreement” has the meaning assigned thereto in Section 1(a).




“Merger Sub” has the meaning assigned thereto in Section 1(a).



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“Offer” has the meaning assigned thereto in Section 1(a).




“Parent” has the meaning assigned thereto in Section 1(a).




“Permitted Events” has the meaning assigned thereto in Section 1(a).



          1.4 Section 3(b) of the Agreement is hereby amended by inserting the following sentence at the
end thereof:




“Notwithstanding anything in this Agreement to the contrary, a Distribution Date
shall not be deemed to have occurred solely or as a result of the occurrence of any
Permitted Event.”



          1.5 Section 7(a) of the Agreement is hereby amended in its entirety to read as follows:




“(a) The registered holder of any Right Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein) in whole or in part at any
time after the Distribution Date upon surrender of the Right Certificate, with the
form of election to purchase on the reverse side thereof duly executed, to the
Rights Agent at the office of the Rights Agent designated for such purpose, together
with payment of the Purchase Price for each one one-thousandth of a share of
Preferred Stock (or Common Stock, other securities, cash or other assets, as the
case may be) as to which the Rights are exercised, and an amount equal to any
applicable transfer tax as provided in Section 7(c), at or prior to the earlier of:
(i) the Close of Business on the Final Expiration Date, (ii) the time at which the
Rights are redeemed as provided in Section 23 (the “Redemption Date”) and
(iii) the time immediately prior to the Effective Time (as defined in the Merger
Agreement), but only if the Effective Time shall occur;”



          1.6 Section 24 of the Agreement is hereby further amended to add the following subsection at
the end thereof:




“(d) Notwithstanding anything in this Agreement to the contrary, the Company shall
not be required to give notice under this Section 24 solely as a result of the
occurrence of any Permitted Event.”



          1.7 The Agreement is hereby amended by adding a new Section 34 in its entirety as follows:




“Section 34. Termination. Notwithstanding anything contained herein to the
contrary, immediately prior to the Effective Time (but only if the Effective Time
shall occur), and upon written notice to the Rights Agent, (i) this Agreement shall
be terminated and be without further force or effect, (ii) none of the parties to
this Agreement will have any rights, obligations or liabilities hereunder and (iii)
the holders of the Rights shall not be entitled to any benefits, rights or other
interests under this Agreement, including, without limitation, the right to purchase
or



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otherwise acquire shares of Preferred Stock or any other securities of the Company
or of any other Person.”



          1.8 



               (a) Section 25(a) of the Agreement is hereby amended by deleting the Company’s notice address
in its entirety and replacing it with the following:


OSI Pharmaceuticals, Inc.

420 Saw Mill River Road

Ardsley, New York 10502

Attention: Secretary




               (b) Section 25(b) of the Agreement is hereby amended by inserting the following at the end
thereof:


with a copy to:



The Bank of New York Mellon

Newport Office Center VII

480 Washington Blvd.

Jersey City, NJ 07310

Attention: General Counsel




     Section 2. Termination of Merger Agreement. If for any reason the Merger Agreement is
terminated, then this Amendment shall be of no further force and effect and the Agreement shall
remain exactly the same as it existed immediately prior to execution of this Amendment.



     Section 3. Effectiveness. This Amendment shall be deemed effective as of, and
immediately prior to, the execution and delivery of the Merger Agreement. Except as amended by
this Amendment, the Agreement shall remain in full force and effect and shall be otherwise
unaffected by this Amendment. The term “Agreement” as used in the Agreement shall be deemed to
refer to the Agreement as amended hereby.



     Section 4. Waiver of Notice. The Rights Agent and the Company hereby waive any notice
requirement under the Agreement pertaining to the matters covered by this Amendment.



     Section 5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same instrument.



     Section 6. Governing Law. This Amendment shall be deemed to be a contract made under
the laws of Delaware and for all purposes shall be governed by and construed in accordance with the
laws of such State applicable to contracts to be made and performed entirely within such State,
provided, however, that the rights and obligations of the Rights Agent shall be governed by and
construed in accordance with the laws of the State of New York.



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     Section 7. Severability. If any term, provision, covenant or restriction of this
Amendment is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Amendment
shall remain in full force and effect and shall in no way be affected, impaired or invalidated.



     Section 8. Further Assurances. Each of the parties to this Amendment shall cooperate
and take such action as may be reasonably requested by the other party in order to carry out the
provisions and purposes of this Amendment, the Agreement and the transactions contemplated
hereunder and/or thereunder.



[SIGNATURE PAGE FOLLOWS]




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          IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the date
first above written.



	 	 	 	 	 
	 	OSI PHARMACEUTICALS, INC.

 	 
	 	By:  	/s/ Barbara A. Wood
 	 
	 	Name:  	Barbara Wood 	 
	 	Title:  	Senior Vice President, General
Counsel and Secretary 	 
	 
	 	THE BANK OF NEW YORK MELLON, as Rights Agent

 	 
	 	By:  	/s/ Stephen R. Jones
 	 
	 	Name:  	Stephen R. Jones 	 
	 	Title:  	Vice President 	 
	 



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