Exhibit
10.1


 


SECOND
AMENDMENT TO


THE SHAREHOLDER RIGHTS AGREEMENT


 


 


SECOND AMENDMENT, dated
as of March 7, 2008 (this “Amendment”), to the Shareholder Rights
Agreement, dated as of November 5, 2004 (the “Rights Agreement”),
by and between AVANT Immunotherapeutics, Inc., a Delaware corporation (the
“Company”) and Computershare Trust Company, N.A. (formerly EquiServe
Trust Company, N.A.), as rights agent (the “Rights Agent”). Terms used
herein but not defined shall have the meaning assigned to them in the Rights
Agreement.


 


WHEREAS, the Company and
the Rights Agent have heretofore executed and entered into the Rights Agreement
and have heretofore executed and entered into that certain First Amendment to
the Shareholders Rights Plan as of October 19, 2007 (the “First
Amendment”);


 


                WHEREAS, the Company, on October 19, 2007,
entered into an Agreement and Plan of Merger (as it may be amended from time to
time, the “Merger Agreement”), among the Company, Celldex Therapeutics, Inc.
(“Celldex”) and Callisto Merger Corporation, a Delaware corporation and
a wholly-owned subsidiary of the Company (“Merger Sub”), providing for
the merger of Merger Sub with and into Celldex (the “Merger”), with
Celldex continuing as the surviving corporation and wholly-owned subsidiary of
the Company;


 


WHEREAS, pursuant to the Merger,
the Company will acquire all of the outstanding equity securities of Celldex by
way of merger of Merger Sub with and into Celldex and the Company will issue
shares of the Company’s Common Stock, par value $.001 per share (the “AVANT
Common Stock”), to Celldex stockholders (and option holders) in
consideration for the Merger (the “Share Issuance”);


 


WHEREAS, certain of the Celldex
stockholders will, following consummation of the Merger and the Share Issuance,
own more than 15% of the total outstanding shares of AVANT Common Stock;


 


WHEREAS, the Board of Directors of the Company (the “Board”)
has determined, in connection with the consummation of the Merger and the Share
Issuance, to designate such Celldex stockholders as “Grandfathered Persons” for
the purposes of the Rights Agreement, as set forth in this Amendment;


 


WHEREAS, (i) Section 27
of the Rights Agreement provides that, so long as the Rights are not then
redeemable, the Company and the Rights Agent shall, if so directed by
the Board, supplement or amend any provision of the Rights Agreement without
the approval of any holders of certificates representing shares of Common Stock
of the Company (subject to limited exceptions that do not apply for purposes hereof);
(ii) pursuant to Section 27 of the Rights Agreement, an appropriate
officer of the Company has delivered a certificate to the Rights Agent stating
that the proposed supplements and amendments to the Rights Agreement set forth
in this Amendment are in compliance with Section 27 of the Rights
Agreement; and (iii)  pursuant to the terms of the Rights Agreement and in
accordance with Section 27 thereof, the Board has 


 

















 


directed that the Rights
Agreement should be amended and supplemented as set forth in this Amendment
prior to the execution of the Merger Agreement.


 


NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as follows:


 


1.     Amendment to Rights Agreement.


 


                                (a)  The definition of “Grandfathered Percentage” in Section 1(r) of the
Rights Agreement is deleted in its entirety and replaced with the following:


 


(r)            “Grandfathered Percentage”
shall mean, with respect to (A) any of the Persons specified in clause (A) of
the definition of “Grandfathered Person”, together with all Affiliates and
Associates of such Persons, 36.09%, (B) any of the Persons specified in
clause (B) of the definition of “Grandfathered Person”, together with all
Affiliates and Associates of such Persons, 19.33% and (C) any other
Grandfathered Person, the percentage of the outstanding shares of Common Stock
of the Company that such Grandfathered Person, together with all Affiliates and
Associates of such Grandfathered Person, Beneficially Owns as of the Grandfathered
Time, plus an additional 1⁄2%; provided, however, that, with
respect to each of clause (A), (B) and (C), in the event any Grandfathered
Person shall sell, transfer, or otherwise dispose of any outstanding shares of
Common Stock of the Company after the Grandfathered Time, the Grandfathered
Percentage shall, subsequent to such sale, transfer or disposition, mean, with
respect to such Grandfathered Person, the lesser of (i) the Grandfathered
Percentage as in effect immediately prior to such sale, transfer or disposition
or (ii) the percentage of outstanding shares of Common Stock of the
Company that such Grandfathered Person Beneficially Owns immediately following
such sale, transfer or disposition, plus an additional 1⁄2%.


 


                                (b)  The definition of “Grandfathered Person” in Section 1(s) of the
Rights Agreement is deleted in its entirety and replaced with the following:


 


(s)           “Grandfathered Person”
shall mean any one or more of the following Persons: (A) Medarex, Inc.,
(B) Lorantis Holdings Limited, and (C) any other Person who or which,
together with all Affiliates and Associates of such Person, is, as of the
Grandfathered Time, the Beneficial Owner of 15% or more of the shares of Common
Stock of the Company then outstanding. 
Notwithstanding anything to the contrary provided in this Agreement, any
Grandfathered Person who after the Grandfathered Time becomes the Beneficial
Owner of less than 15% of the shares of Common Stock of the Company then
outstanding shall cease to be a Grandfathered Person and shall be subject to
all of the provisions of this 


 


 


2

















 


Agreement in the same manner as any Person who is not and
was not a Grandfathered Person.


 


2.     Interpretation. The term “Agreement”
as used in the Rights Agreement shall be deemed to refer to the Rights
Agreement as amended by the First Amendment and as amended hereby.


 


3.     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, and of the Rights Agreement, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.


 


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


 


5.     Effectiveness. This Amendment shall
be deemed effective as of the date first written above.  Except as expressly amended herein, all other
terms and conditions of the Rights Agreement shall remain in full force and
effect. Without limiting the foregoing, the Rights Agent shall not be subject
to, nor required to interpret or comply with, or determine if any Person has
complied with, the Merger Agreement even though reference thereto may be made
in this Amendment and the Rights Agreement.


 


 6.     Governing
Law. This Amendment shall be deemed to be a contract made under the laws of
the State of Delaware, and for all purposes of this Amendment shall be governed
by and construed in accordance with the laws of such State applicable to
contracts made and to be performed entirely within such State.  The courts of the State of Delaware and of
the United States of America located in the State of Delaware (the “Delaware
Courts”) shall have exclusive jurisdiction over any litigation arising out
of or relating to this Amendment and the transactions contemplated hereby, and
any Person commencing or otherwise involved in any such litigation shall waive
any objection to the laying of venue of such litigation in the Delaware Courts
and shall not plead or claim in any Delaware Court that such litigation brought
therein has been brought in an inconvenient forum.


 


7.     Counterparts. This Amendment may be
executed in any number of counterparts, each of which shall be an original and
all of which shall constitute one and the same document.


 


[Remainder
of this Page Intentionally Left Blank]


 


 


3






 













 


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


 


	
  ATTEST:

  	
   

  	
  AVANT Immunotherapeutics, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   /s/ Una S. Ryan

  	
   

  	
  By:

  	
   /s/ Avery W. Catlin

  
	
   

  	
   

  	
   

  	
  Name:

  	
   Avery W. Catlin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
  COMPUTERSHARE TRUST
  COMPANY, N.A.,

  
	
   

  	
   

  	
  as Rights Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   /s/ James Walsh

  	
   

  	
  By:

  	
   /s/ Dennis V. Moccia

  
	
   

  	
   

  	
   

  	
  Name: 

  	
  Dennis V. Moccia

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director