Exhibit
10.2


 


THIRD AMENDMENT TO

AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


THIS
THIRD AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Amendment”) by
and between AVANT Immunotherapeutics, Inc., a Delaware  corporation (f/k/a “T Cell Sciences, Inc.,”
the “Company”) and Una S. Ryan, Ph.D. (the “Executive”), is dated as of October
19, 2007.


 


WHEREAS,
the Company and the Executive entered into an Employment Agreement as of May
28, 1996 (the “Original Agreement”);


 


WHEREAS,
the Company and the Executive entered into an Amended and Restated Employment
Agreement as of August 20, 1998 (the “Employment Agreement”), which Employment
Agreement amended, restated and superseded the Original Agreement;


 


WHEREAS,
the Employment Agreement was amended by the First Amendment and the Second
Amendment thereto; and


 


WHEREAS,
the parties agree to further amend certain provisions of the Employment
Agreement in accordance with Paragraph 19 thereof.


 


NOW,
THEREFORE, the Company and the Executive, each intending to be legally bound
hereby, do mutually covenant and agree as follows:


 


1.                                       Paragraph 3 of the Employment Agreement is
hereby amended by deleting said Paragraph in its entirety and substituting
therefor the following:


 


“3.                                Term. Subject to the
provisions of Paragraph 6, the term of employment pursuant to this Agreement
(the “Term”) shall be extended for 13 months from the Effective Date of the
Merger (as defined in the Agreement and Plan of Merger, dated as of October 19,
2007, among certain parties including Avant Immunotherapeutics, Inc., and
Callisto Therapeutics, Inc.) and shall be renewed automatically for periods of
one (1) year commencing on the 13-month anniversary of the Effective Date and
each subsequent anniversary thereafter, unless either the Executive or the
Company gives written notice to the other not less than sixty (60) days prior
to the date of any such anniversary of such party’s election not to extend the
Term.”


 


2.                                       Subparagraph
6(d) of the Employment Agreement is amended by deleting Subparagraph (ii)(E)
thereof and renumbering Subparagraph (ii)(F) as new Subparagraph (ii)(E).


 


3.                                       Subparagraph
6(f)(i) of the Employment Agreement is hereby amended by deleting such
subparagraph in its entirety and substituting therefor the following:


 

















 


“(i)                               In the event of
termination of the Executive’s employment with the Company by the Company
without Cause pursuant to Section 6(c) or by the Executive for Good Reason
pursuant to Section 6(d) above at any time after the Merger, or if the
Executive resigns or is terminated by the Company on or after the first
anniversary of the Merger for any reason, the Company shall pay to the
Executive a special retirement payment in the amount of $1,323,203.”


 


4.                                       Effective
as of January 1, 2008, Paragraph 6 of the Employment Agreement is hereby
further amended by adding the following new Subparagraph (i) immediately after
Subparagraph (h) thereof:


 


“(i)                              Specified Employee. Anything in
this Agreement to the contrary notwithstanding, if at the time of the Executive’s
termination of employment, the Executive is considered a ‘specified employee’
within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code of
1986, as amended (the ‘Code’), and if any payment that the Executive becomes
entitled to under this Agreement would be considered deferred compensation
subject to interest and additional tax imposed pursuant to Section 409A(a) of
the Code as a result of the application of Section 409A(a)(2)(B)(i) of the
Code, then no such payment shall be payable prior to the date that is the
earlier of (A) six months and a day after the Executive’s separation from
service, or (B) the Executive’s death. Any such deferred payment shall earn
simple interest calculated at the short-term applicable federal rate in effect
on the date of the Executive’s separation from service. The parties intend that
this Agreement will be administered in accordance with Section 409A of the Code.
The parties agree that this Agreement may be amended, as reasonably requested
by either party, and as may be necessary to fully comply with Section 409A of
the Code and all related rules and regulations in order to preserve the
payments and benefits provided hereunder without additional cost to either
party.”


 


5.                                       Effective
as of January 1, 2008, Subparagraph 6(f)(iii) of the Employment Agreement is
further amended by deleting the third sentence thereof in its entirety and
substituting therefor the following:


 


“The initial Gross-Up
Payment, if any, as determined pursuant to this Subparagraph 6(f)(iii), shall
be paid by the Company as withholding taxes to the taxing authorities on behalf
of the Executive at such time or times when the Excise Tax is due.”


 


6.                                       Except
as so amended, the Employment Agreement in all other respects is hereby
confirmed.


 

















 


7.                                       The
provisions of Sections 4 and 5 of this Third Amendment shall become effective
as of January 1, 2008. The remaining provisions of this Third Amendment shall
become effective upon the consummation of the Merger and such provisions shall
be null and void if the Merger is not consummated.


 


IN
WITNESS WHEREOF, this Third Amendment has been executed as a sealed instrument
by the Company, by its duly authorized officer, and by the Executive, as of the
date first written herein above.


 


	
   

  	
  AVANT
  IMMUNOTHERAPEUTICS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Avery W. Catlin

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Avery
  W. Catlin

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President and

  
	
   

  	
   

  	
   

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Una S. Ryan

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Una
  S. Ryan, Ph.D.

  
	
   

  	
   

  	
  Title:

  	
  President
  and Chief Executive

  
	
   

  	
   

  	
   

  	
  Officer