EX-10.38






Exhibit 10.38



OSI Pharmaceuticals, Inc.

41 Pinelawn Road

Melville, NY 11747

T 631.962.2000 F 631.962.2023

www.osip.com









December 19, 2008




Mr. Robert Simon

c/o OSI Pharmaceuticals, Inc.

41 Pinelawn Road

Melville, NY 11747




Re: Letter Agreement Amendment



Dear Bob:




     Reference is made to your Letter Agreement dated November 15, 2001, as amended on September
20, 2005 and December 6, 2006 (the “Agreement”). The December 6, 2006 amendment to your Agreement
is hereby terminated and the following provisions are hereby added to your Agreement:



     11. Section 409A.




          (i) To the extent you would be subject to the additional 20% tax imposed on certain
deferred compensation arrangements pursuant to Section 409A of the U.S. Internal Revenue
Code (“Section 409A”), as a result of any provision of this Agreement, such provision shall
be deemed amended to the minimum extent necessary to avoid application of such tax and the
parties shall promptly execute any amendment reasonably necessary to implement these
provisions.




          (ii) With respect to payments under this Agreement, for purposes of Section 409A, each
severance payment and COBRA continuation reimbursement payment will be considered one of a
series of separate payments.



 









 







          (iii) You will be deemed to have a termination of employment for purposes of
determining the timing of any payments that are classified as deferred compensation only
upon a “separation from service” within the meaning of Section 409A.




          (iv) If at the time of your separation from service, (i) you are a specified employee
(within the meaning of Section 409A and using the identification methodology selected by the
Company from time to time), and (ii) the Company makes a good faith determination that an
amount payable to you constitutes deferred compensation (within the meaning of Section 409A)
the payment of which is required to be delayed pursuant to the six-month delay rule set
forth in Section 409A in order to avoid taxes or penalties under Section 409A (the “Delay
Period”), then the Company will not pay such amount on the otherwise scheduled payment date
but will instead pay it in a lump sum on the first business day after such six-month period.
To the extent that any benefits to be provided during the Delay Period are considered
deferred compensation under Section 409A provided on account of a “separation from service,”
and such benefits are not otherwise exempt from Section 409A, you shall pay the cost of such
benefits during the Delay Period, and the Company shall reimburse you, to the extent that
such costs would otherwise have been paid by the Company or to the extent that such benefits
would otherwise have been provided by the Company at no cost to you, the Company’s share of
the cost of such benefits upon expiration of the Delay Period, and any remaining benefits
shall be reimbursed or provided by the Company in accordance with the procedures specified
herein.




          (v) Any amount that you are entitled to be reimbursed under this Agreement, including
the payment of excise taxes and gross-up amounts, will be reimbursed to you as promptly as
practical and in any event not later than the last day of the calendar year after the
calendar year in which the expenses are incurred, and the amount of the expenses eligible
for reimbursement during any calendar year will not affect the amount of expenses eligible
for reimbursement in any other calendar year.




          (vi) Unless your Agreement provides a specified and objectively determinable payment
date to the contrary, any payment of compensation will be made, in any event, by March 15 of
the calendar year following the year with respect to which such compensation is earned.



	 	 	 
	Sincerely yours,
	 	 
	 
	 	 
	/s/ Linda E. Amper




 

Linda Amper, Ph.D.

	 	 
	Senior Vice President, Human Resources and Training







 









 






	 	 	 
	Accepted and Agreed:
	 	 
	 
	 	 
	/s/ Robert Simon
 

Robert Simon