**Exhibit 10.2**

 

[*CONFIDENTIALTREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCHPORTION, WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK [*], HASBEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]

 

**AVANT IMMUNOTHERAPEUTICS, INC.**

** **

**COMMON STOCK PURCHASE AGREEMENT**

** **

**THIS COMMON STOCK PURCHASE AGREEMENT**(the “***Agreement***”)is made as of May     , 2008, by and between **AVANT IMMUNOTHERAPEUTICS, INC.**, a Delawarecorporation (the “***Company***”)and **PFIZER VACCINES LLC**, aDelaware limited liability company (“***Pfizer***”).

 

**WHEREAS,** the Company desires toissue, and Pfizer desires to acquire, stock of the Company as herein described,on the terms and conditions hereinafter set forth;

 

**NOW, THEREFORE, IT IS AGREED**between the parties as follows:

 

**1.****                                      Purchaseand Sale of Stock.**  Pfizer herebyagrees to purchase from the Company, and the Company hereby agrees to sell toPfizer, an aggregate of 781,250 shares of the Common Stock of the Company (the “***Shares***”) at $12.80per share, for an aggregate purchase price of $10,000,000.00, payable in cash.  The closing hereunder, including payment forand delivery of the Shares shall occur at the offices of the Companyimmediately following the execution of this Agreement, or at such other timeand place as the parties may mutually agree.

 

**2.****                                      Limitationson Transfer.**  Pfizer shall notassign, hypothecate, donate, encumber or otherwise dispose of any interest inthe Shares except in compliance with the provisions herein and applicable securitieslaws.  The Company shall not be required (a) totransfer on its books any of the Shares which shall have been transferred inviolation of any of the provisions set forth in this Agreement or (b) totreat as owner of such shares or to accord the right to vote as such owner orto pay dividends to any transferee to whom such shares shall have been sotransferred.

 

**3.****                                      RestrictiveLegends.**  All certificatesrepresenting the Shares shall have endorsed thereon (a) any legendrequired by appropriate blue sky officials and (b) a legend insubstantially the following form (in addition to any other legend which may berequired by other agreements between the parties hereto):

 

“THE SHARES REPRESENTEDBY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933AS AMENDED (THE “ACT”).  THEY MAY NOTBE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED UNLESS THE SALE IS MADE INACCORDANCE WITH RULE 144 UNDER THE ACT, THERE IS AN EFFECTIVE REGISTRATIONSTATEMENT UNDER THE ACT COVERING SUCH SHARES OR THE COMPANY RECEIVES AN OPINIONOF COUNSEL 

 

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REASONABLY SATISFACTORY TO THE COMPANY THAT SUCHREGISTRATION IS NOT REQUIRED.”

 

**4.****                                      Company Representations**.  In connection with the sale and purchase ofthe Shares, the Company represents and warrants to Pfizer, as of the datehereof and as of the date of the closing contemplated by Section 1, thefollowing:

 

**4.1****                              **TheCompany (a) is a corporation duly organized, validly existing and in goodstanding under the laws of the State of Delaware, (b) has all corporate powerand authority required to own, lease and operate its properties and to conductits business as presently conducted and (c) is duly qualified to transactbusiness and is in good standing in each jurisdiction in which the conduct ofits business or its ownership or leasing of property requires suchqualification, except to the extent that the failure to be so qualified wouldnot have a Material Adverse Effect (as defined below).

 

For the purposes of thisAgreement, “***Material Adverse Effect***”means, individually or collectively, a material adverse effect on, or amaterial adverse change in, or a group of such effects on or changes in, (i) thebusiness, financial condition, results of operations, assets or liabilities ofthe Company and its Subsidiaries (as defined in Section 4.2), taken as awhole, or (ii) the ability of the Company to perform its obligations underor with respect to this Agreement.

 

**4.2****                              **EachSubsidiary (as defined below) of the Company (a) has been dulyincorporated or formed or organized, (b) is validly existing and in goodstanding under the laws of the jurisdiction of its incorporation or otherformation, (c) has the corporate or other power and authority to own,lease and operate its properties and to carry on its business as currently conductedand (d) is duly qualified to transact business and is in good standing ineach jurisdiction in which the conduct of its business or its ownership orleasing of property requires such qualification, except to the extent that thefailure to be so qualified or be in good standing would not have a MaterialAdverse Effect.

 

For the purposes of this Agreement, “***Subsidiary***”means any corporation or other legal entity of which the Company or Pfizer, asthe context requires, owns, directly or indirectly, stock or other equityinterests, in sufficient amounts to elect a majority of the board of directorsor other governing body or other persons performing similar functions of suchcorporation or other legal entity.

 

**4.3****                              **Theauthorized capital stock of the Company consists of 300,000,000 shares ofCompany common stock, par value $.001 per share (“***CommonStock***”) of which there were 14,926,994 shares issued andoutstanding, 37,037 warrants issued and outstanding and 3,000,000 shares ofCompany preferred stock, none of which were issued and outstanding, in eachcase as of May 19, 2008.  Alloutstanding shares of the Common Stock are duly authorized, validly issued,fully paid and non-assessable and are not subject to preemptive rights createdby statute, the Company’s certificate of incorporation or bylaws, or anyagreement or document to which the Company is a party or by which it isbound.  As of May 19, 2008, theCompany had reserved an aggregate of 2,946,913 shares of Common Stock forissuance to employees, directors 

 

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and consultants pursuantto the Company’s stock option plans, under which options for an aggregate of2,463,579 shares were outstanding.

 

**4.4****                              **TheCompany has all requisite corporate power and authority to execute, deliver andperform its obligations under this Agreement, and this Agreement has been dulyauthorized and validly executed and delivered by the Company.  All corporate actions on the part of the Companynecessary for the authorization, execution, delivery of and the performance ofall obligations of the Company under this Agreement and the authorization,issuance, reservation for issuance and delivery of all of the Shares being soldhereunder have been taken.  When issuedin accordance with the provisions of this Agreement, the Shares will be validlyauthorized and issued, fully paid and nonassessable, and will not be subject toany mortgage, lien, pledge, security interest, charge or similarencumbrance.  Based in part upon therepresentations of Pfizer in this Agreement, the Shares will be issued incompliance with all applicable United States federal and state securities laws.

 

**4.5****                              **ThisAgreement is legally binding upon the Company and enforceable against theCompany in accordance with its terms, except (a) as limited by applicablebankruptcy, insolvency, reorganization, moratorium or other laws of generalapplication affecting enforcement of creditor’s rights, (b) generalprinciples of equity that restrict the availability of equitable remedies and (c) tothe extent that the enforceability of the indemnification provisions set forthin Section 6.11 may be limited by applicable law.  The execution, delivery and performance ofthis Agreement by the Company do not (i) conflict with its certificate ofincorporation or bylaws, (ii) conflict with, or constitute a breach of ordefault (or an event which with notice or lapse of time or both would become adefault) under, or give to others any rights of termination, amendment,acceleration or cancellation of, or result in the creation of any mortgage,pledge, security interest, encumbrance, lien or charge of any kind (a “***Lien***”) on the Shares or any propertyor asset of the Company or any of its Subsidiaries pursuant to any contract,indenture, mortgage, loan agreement, note, lease or other instrument to whichthe Company or any of its Subsidiaries is a party or by which it or any of itsproperties may be bound or (iii) violate any law, regulation or decree ofany court, agency, department or other instrumentality of any foreign, federal,state, county, city or other political subdivision (each a “***Governmental Authority***”) havingjurisdiction over it, except in the case of clauses (ii) and (iii) forconflicts, breaches, defaults, violations or Liens which, either individuallyor in the aggregate, would not have a Material Adverse Effect.  All necessary consents, approvals andauthorizations of, and all filings with, all Governmental Authorities and otherpersons required to be obtained or made by the Company to enter into, orperform its obligations under, this Agreement have been obtained or made (asthe case may be), except for such consents, approvals or authorizations thatmust be made after the date hereof, which will be obtained or made (as the casemay be) in a timely manner.

 

**4.6****                              **Exceptas disclosed in the SEC Documents (as defined below), there is (a) noaction, suit or governmental proceeding pending or, to the knowledge of theCompany, threatened in writing (i) against or that names as a party theCompany or its Subsidiaries or (ii) which questions the validity of thisAgreement or any action taken or to be taken by the Company pursuant to thisAgreement or in connection with the transactions contemplated hereby and (b) nofact or circumstance known to the Company that would reasonably be expected togive rise to any such action, suit, proceeding, inquiry or investigation.  Neither the Company nor 

 

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any of its Subsidiariesis subject to any judgment, order or decree that materially restricts itsbusiness practices or its ability to acquire any property or conduct itsbusiness in any area.

 

**4.7****                              **TheCompany is not (a) in violation of its certificate of incorporation or itsbylaws, (b) to the knowledge of the Company, in material violation of anylaw, administrative regulation, ordinance or order of any court or governmentalagency, arbitration panel or authority applicable to the Company or (c) indefault (and there exists no condition which, with the passage of time orotherwise, would constitute a default) in the performance of any materialcontract to which it is a party or by which it may be bound.  No notice, charge, claim, action or assertionhas been received by the Company alleging such a violation or default.

 

**4.8****                              **Thefinancial statements of the Company and the related notes contained in (a) theCompany’s annual report on Form 10-K for the year ended December 31,2007, (b) any Quarterly Reports on Form 10-Q, and (c) CurrentReports on Form 8-K filed subsequent thereto (excluding any and allfinancial information furnished and not filed in a Current Report on Form 8-K,by press release or otherwise), each as filed with the Securities and ExchangeCommission (the “***SEC***”) by the Company(collectively, the “***SEC Documents***”) have beenprepared from and are in accordance with the books and records of the Companyand present fairly, in accordance with United States generally acceptedaccounting principles (“***GAAP***”), thefinancial condition of the Company as of the dates indicated, and the resultsof its operations and cash flows for the periods therein specified.  Such financial statements (including therelated notes) have been prepared in accordance with GAAP applied on aconsistent basis throughout the periods therein specified and have complied, asof their respective dates, in all material respects with the applicableaccounting requirements and rules and regulations of the SEC.  Except as disclosed and adequately reservedfor in such financial statements (other than such draw downs as have been madeunder the Company’s existing equipment credit lines), the Company has nomaterial debts, liabilities or (whether accrued or fixed, known or unknown,absolute or contingent, matured or unmatured, or determined ordeterminable).  Other than as disclosedin the SEC Documents, since December 31, 2007, the business of the Companyhas been conducted in the ordinary course and there has not been any change or event that has had, or wouldreasonably be expected to have, individually or in the aggregate, a MaterialAdverse Effect.

 

**4.9****                              **TheCompany has filed in a timely manner all documents that the Company wasrequired to file under the Securities Exchange Act of 1934, as amended (the “***Exchange Act***”) and the Nasdaq MarketplaceRules during the twelve (12) months preceding the date of thisAgreement.  The SEC Documents complied inall material respects with the requirements of the Securities Act of 1933, asamended (the “***Securities Act***”), and theExchange Act and the rules and regulations of the SEC promulgatedthereunder as of their respective filing dates, and none of the SEC Documents,including any financial statements or schedules included or incorporated byreference therein, when filed, contained any untrue statement of a materialfact or omitted to state a material fact required to be stated therein ornecessary in order to make the statements therein, in light of thecircumstances under which they were made, not misleading.  The Chief Executive Officer and the ChiefFinancial Officer of the Company have signed, and the Company has furnished tothe SEC, all certifications required by Sections 302 and 906 of theSarbanes-Oxley Act of 2002 (the “***Certifications***”). The Certifications have not been modified or withdrawn, and neither theCompany nor any of it officers has received notice 

 

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from any governmentalentity questioning or challenging the accuracy, completeness, content, form ormanner of filing or submission of the Certifications.

 

**4.10****                       **Neitherthe Company nor any other person or entity authorized by the Company to act onits behalf has engaged in a general solicitation or general advertising (withinthe meaning of Regulation D of the Securities Act) that would adversely affectreliance by the Company on an exemption from registration for the transactionscontemplated hereby or would require registration of the Shares under theSecurities Act.

 

**5.****                                      PfizerRepresentations.**  In connection withthe sale and purchase of the Shares, Pfizer represents and warrants to theCompany, as of the date hereof and as of the date of the closing contemplatedby Section 1, the following:

 

**5.1****                              **Pfizer(a) is a limited liability company duly organized, validly existing and ingood standing under the laws of the State of Delaware and (b) has alllimited liability company power and authority required to own, lease andoperate its property and to conduct its business as presently conducted.

 

**5.2****                              **Pfizerhas all requisite limited liability company power and authority to execute,deliver and perform its obligations under this Agreement, and this Agreementhas been duly authorized and validly executed and delivered by Pfizer.  All limited liability company actions on thepart of Pfizer necessary for the authorization, execution, delivery of and theperformance of all obligations of Pfizer under this Agreement have been taken.

 

**5.3****                              **ThisAgreement is legally binding upon Pfizer and enforceable against Pfizer inaccordance with its terms, except (a) as limited by applicable bankruptcy,insolvency, reorganization, moratorium or other laws of general applicationaffecting enforcement of creditor’s rights, (b) general principles ofequity that restrict the availability of equitable remedies, and (c) tothe extent that the enforceability of the indemnification provisions set forthin Section 6.11 may be limited by applicable law.  The execution, delivery and performance ofthis Agreement by Pfizer do not (i) conflict with its certificate offormation or operating agreement, (ii) conflict with, or constitute abreach of or default (or an event which with notice or lapse of time or bothwould become a default) under, or give to others any rights of termination,amendment, acceleration or cancellation of, or result in the creation of a Lienon any property or asset of Pfizer pursuant to any contract, indenture,mortgage, loan agreement, note, lease or other instrument to which Pfizer orany of its Subsidiaries is a party or by which it or any of its properties maybe bound or (iii) violate any law or regulation of any GovernmentalAuthority having jurisdiction over it, except in the case of clauses (ii) and(iii) for conflicts, breaches, defaults, violations or Liens which, eitherindividually or in the aggregate, would not be reasonably expected tomaterially and adversely impair or restrict Pfizer’s ability to perform itsobligations hereunder or to consummate the transactions contemplatedhereby.  All necessary consents,approvals and authorizations of, and all filings with, all GovernmentalAuthorities and other persons required to be obtained or made by Pfizer toenter into, or perform its obligations under, this Agreement have been obtainedor made (as the case may be), except for such consents, approvals orauthorizations that must be made after the date hereof, which will be obtainedor made (as the case may be) in a timely manner.

 

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**5.4****                              **ThisAgreement is made with Pfizer in reliance upon Pfizer’s representation to theCompany, which by Pfizer’s execution of this Agreement Pfizer hereby confirms,that the Shares it is or may be purchasing will be acquired for investment forPfizer’s own account, not as a nominee or agent, and not with a view to theresale or distribution of any part thereof, and that Pfizer has no presentintention of selling, granting any participation in or otherwise distributingthe same.  By executing this Agreement,Pfizer further represents that Pfizer does not have any contract, undertaking,agreement or arrangement with any person to sell, transfer or grantparticipations to such person, or to any third person, with respect to theShares.

 

**5.5****                              **Pfizerunderstands that the Shares it is or may be purchasing are characterized as “restrictedsecurities” under the federal securities laws inasmuch as they are beingacquired from the Company in a transaction not involving a public offering andthat under such laws and applicable regulations may be resold withoutregistration under the Securities Act only in certain limitedcircumstances.  Pfizer agrees that itwill not sell or otherwise dispose of any of the Shares unless such sale orother disposition has been registered or is exempt from registration under theSecurities Act and has been registered or qualified or is exempt fromregistration or qualification under applicable state securities laws.

 

**5.6****                              **Pfizeris and will be an “accredited investor” as defined in Rule 501 ofRegulation D promulgated under the Securities Act.  Pfizer’s financial condition is such that itis able to bear the risk of holding the Shares for an indefinite period of timeand the risk of loss of its entire investment in the Shares.  Pfizer has been afforded the opportunity toask questions of and receive answers from the management of the Companyconcerning this investment and is able to evaluate the risks and merits of itsinvestment in the Company.

 

**6.****                                      RegistrationRights.**

 

**6.1****                               Definitions. **For purposes of this Section 6, thefollowing terms shall have the following respective meanings:

 

**(a)****                                 **“***Register***,” “***registered***”and “***registration***”******referto a registration effected by preparing and filing a registration statement incompliance with the Securities Act, and the declaration or ordering ofeffectiveness of such registration statement or document.

 

**(b)****                                 **“***Registrable Securities***” shall mean (i) theShares issued hereunder, and (ii) any Common Stock issued as (or issuableupon the conversion or exercise of any warrant, right or other security that isissued as) a dividend or other distribution with respect to, or in exchange foror in replacement of the shares referenced in clause (i) above, excludingin all cases, however, any Registrable Securities sold by a person in atransaction in which its rights under this Section 6 are not assigned.

 

**(c)****                                 **“***Registration Expenses***”******shall mean all expenses incurred bythe Company in complying with Section 6.2 or 6.3 hereof, including,without limitation, all registration and filing fees, printing expenses, feesand disbursements of counsel for the Company and blue sky fees and expenses.

 

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**(d)****                                 **“***Selling Expenses***”******shall mean all underwritingdiscounts and selling commissions applicable to a sale of RegistrableSecurities pursuant to Section 6.4.

 

**6.2****                               PiggybackRegistrations. **The Company shall notify Pfizer inwriting at least ten (10) days prior to the filing of a registrationstatement under the Securities Act for purposes of a public offering ofsecurities of the Company (excluding registration statements relating toemployee benefit plans, the offer and sale of debt securities, with respect tocorporate reorganizations or other transactions under Rule 145 of theSecurities Act or with respect to a solely primary offering of securities ofthe Company) and will afford Pfizer an opportunity to include in suchregistration statement all or part of the Registrable Securities held byPfizer.  In the event that Pfizer desiresto include in any such registration statement all or any part of the RegistrableSecurities held by it, it shall, within ten (10) days after theabove-described notice from the Company, so notify the Company in writing.  Such notice shall state the intended methodof disposition of the Registrable Securities by Pfizer.  If Pfizer decides not to include all of theRegistrable Securities in a registration statement filed by the Company, Pfizershall nevertheless continue to have the right to include any remainingRegistrable Securities in any subsequent registration statement or registrationstatements as may be filed by the Company with respect to secondary offeringsof its securities, all upon the terms and conditions set forth herein.

 

**6.3****                               DemandForm S-3 Registrations.**  If theCompany receives a request from Pfizer that the Company effect a registrationon Form S-3 under the Securities Act (or any successor or similarregistration form under the Securities Act) (“***Form S-3***”) with respect to all or apart of the Registrable Securities held by Pfizer, then the Company, as soon aspracticable, shall use its commercially reasonable efforts to effect suchregistration as would permit or facilitate the sale and distribution of all orsuch portion of such Registrable Securities as are specified in such request; *provided*, *however*, thatthe Company shall not be obligated to effect any such registration pursuant tothis Section 6.3 (i) if Form S-3 is not then available for suchoffering by Pfizer; (ii) if Pfizer proposes to sell Registrable Securitiesat an aggregate price to the public (net of Selling Expenses) of less than****One Million Dollars ($1,000,000); (iii) if the Companyfurnishes to Pfizer a certificate signed by the chief executive officer of theCompany stating that in the good faith judgment of the Board of Directors ofthe Company, it would be materially detrimental to the Company and itsstockholders for such Form S-3 registration to be effected at such time,in which event the Company shall have the right to defer the filing of the Form S-3registration statement for a period of not more than****thirty(30) days after receipt of the request of Pfizer under this Section 6.3; *provided*, *however*, thatthe Company shall not invoke this right more than once in any twelve (12) monthperiod; and provided further that the Company shall not register any securitiesfor its own account or that of any other stockholder during such thirty (30)day period other than pursuant to a registration relating to the sale ofsecurities to employees of the Company pursuant to a stock option, stockpurchase or similar plan; a registration on any form that does not includesubstantially the same information as would be required to be included in aregistration statement covering the sale of the Registrable Securities held byPfizer; or a registration in which the only Common Stock being registered isCommon Stock issuable upon conversion of debt securities that are also beingregistered; or****(iv) if the Company has,within the twelve (12) month period preceding the date of such request, alreadyeffected two (2) registrations on Form S-3 for Pfizer pursuant tothis Section 6.3.

 

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**6.4****                               Underwriting.**

 

**(a)****                                 **Ifthe registration statement under which the Company gives notice pursuant to Section 6.2is for an underwritten offering, the Company shall so advise Pfizer.  In such event, Pfizer’s right to be includedin a registration pursuant to Section 6.2 shall be conditioned upon Pfizer’sparticipation in such underwriting and the inclusion of any RegistrableSecurities to be sold by Pfizer in the underwriting to the extent providedherein.  In such event, Pfizer shallenter into an underwriting agreement in customary form with the underwriter orunderwriters selected for such underwriting by the Company.  If the total number of securities, includingRegistrable Securities, requested by stockholders to be included in suchoffering exceeds the number of securities to be sold (other than by theCompany) that the underwriters in their reasonable discretion determine iscompatible with the success of the offering, then the Company shall be requiredto include in the offering only that number of such securities, includingRegistrable Securities, that the underwriters in their sole discretiondetermine will not jeopardize the success of the offering.  In no event shall any Registrable Securitiesbe excluded from such offering unless all securities of the Company held byother stockholders have been first excluded. If Pfizer disapproves of the terms of any such underwriting, Pfizer mayelect to withdraw therefrom by written notice to the Company and theunderwriter, delivered at least five (5) business days prior to theeffective date of the registration statement or the date of an offering under aregistration statement that contemplates a distribution of securities on adelayed or continuous basis pursuant to Rule 415 under the Securities Act(a “***Shelf Registration Statement***”), asapplicable.  Any Registrable Securitiesexcluded or withdrawn from such underwriting shall be excluded and withdrawnfrom the registration.

 

**(b)****                                 **If,pursuant to Section 6.3, Pfizer intends to distribute the RegistrableSecurities covered by its request for registration by means of an underwriting,Pfizer shall so advise the Company as a part of its request made pursuant to Section 6.3.  The underwriter or underwriters shall beselected by Pfizer, subject to the approval of the Company, such approval notto be unreasonably withheld or delayed. Pfizer, together with the Company, shall enter into an underwriting agreementin customary form with the underwriter or underwriters selected for suchunderwriting.

 

**6.5****                               Rightto Terminate Registration. **TheCompany shall have the right to terminate or withdraw any registrationinitiated by it pursuant to Section 6.2 or 6.3 prior to the effectivenessof such registration whether or not Pfizer has elected to include RegistrableSecurities in such registration.  TheRegistration Expenses of such withdrawn registration shall be borne by theCompany in accordance with Section 6.6 hereof.

 

**6.6****                               Expensesof Registration. **Except asspecifically provided herein, all Registration Expenses incurred in connectionwith any registration pursuant to Section 6.2 or 6.3 herein shall be borneby the Company; *provided*, *however*,that the Company shall not be required to pay for any expenses of anyregistration proceeding begun pursuant to Section 6.3 if the registrationrequest is subsequently withdrawn at the request of Pfizer; *provided**further* thatif, at the time of such withdrawal, Pfizer has learned of a material adversechange in the condition, business or prospects of the Company from that knownto Pfizer at the time of its request and has withdrawn the request withreasonable promptness after learning of such information, then Pfizer shall notbe required to pay any of such expenses. All Selling Expenses incurred in connection with any registrationshereunder shall be borne by the holders of the securities so sold *pro rata* on the basis of the number of shares so sold.

 

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**6.7****                               Obligationsof the Company. **Whenever required toeffect the registration of any Registrable Securities, the Company shall, asexpeditiously as reasonably possible:

 

**(a)****                                 **Prepareand file with the SEC a registration statement with respect to such RegistrableSecurities and use its commercially reasonable efforts to cause suchregistration statement to become effective as soon as practicable.

 

**(b)****                                 **Subjectto Section 6.7(a), use its commercially reasonable efforts to prepare andfile with the SEC such amendments and supplements to such registrationstatement and the prospectus used in connection with such registrationstatement as may be necessary to comply with the provisions of the SecuritiesAct with respect to the disposition of all securities covered by suchregistration statement until such time as all of the Registrable Securitiesheld by Pfizer have been sold.

 

**(c)****                                 **Furnishto Pfizer such number of copies of a prospectus, including a preliminaryprospectus, in conformity with the requirements of the Securities Act, and suchother documents as Pfizer may reasonably request in order to facilitate thedisposition of Registrable Securities.

 

**(d)****                                 **Useits commercially reasonable efforts to register and qualify the securitiescovered by such registration statement under such other securities or Blue Skylaws of such jurisdictions as shall be reasonably requested by Pfizer; *provided*that the Company shall not be required inconnection therewith or as a condition thereto to qualify to do business or tofile a general consent to service of process in any such states orjurisdictions.

 

**(e)****                                 **AdvisePfizer promptly after it shall receive notice or obtain knowledge of theissuance of any stop order by the SEC delaying or suspending the effectivenessof a registration statement or of the initiation of any proceeding for thatpurpose; and it will promptly use its commercially reasonable efforts toprevent the issuance of any stop order or to obtain its withdrawal at theearliest possible moment if such stop order should be issued.

 

**(f)****                                   **Inthe event of any underwritten public offering, enter into and perform itsobligations under an underwriting agreement, in usual and customary form, withthe underwriter(s) of such offering.

 

**(g)****                                **NotifyPfizer at any time when a prospectus relating thereto is required to bedelivered under the Securities Act of the happening of any event as a result ofwhich the prospectus included in such registration statement, as then ineffect, includes an untrue statement of a material fact or omits to state amaterial fact required to be stated therein or necessary to make the statementstherein not misleading in the light of the circumstances then existing.

 

**(h)****                                **Causeall such Registrable Securities registered under such registration statement tobe listed on each securities exchange on which the Common Stock of the Companyis then listed.

 

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**(i)****                                   **Use its commercially reasonable efforts tofurnish, on the date that such Registrable Securities are delivered to theunderwriters for sale, if such securities are being sold through underwriters, (i) anopinion, dated as of such date, of the counsel representing the Company for thepurposes of such registration, in form and substance as is customarily given tounderwriters in an underwritten public offering, addressed to the underwriters,if any, and (ii) a letter dated as of such date, from the independentcertified public accountants of the Company, in form and substance as iscustomarily given by independent certified public accountants to underwritersin an underwritten public offering addressed to the underwriters, if any.

 

**6.8****                               Obligationsof Pfizer.**

 

**(a)****                                 **Inthe event: (i) of any request by the SEC or any other federal or stategovernmental authority during the period of effectiveness of a registrationstatement filed pursuant to Section 6.2 or 6.3 for amendments orsupplements to such registration statement or related prospectus or foradditional information so that such registration statement will not contain anuntrue statement of a material fact or omit to state a material fact requiredto be stated therein or necessary to make the statements therein not misleadingor otherwise fail to comply with the applicable rules and regulations ofthe federal securities laws; (ii) of the issuance by the SEC or any otherfederal or state governmental authority of any stop order suspending theeffectiveness of such registration statement or the initiation of anyproceedings for that purpose; (iii) of the receipt by the Company of anynotification with respect to the suspension of the qualification or exemptionfrom qualification of any of the Registrable Securities for sale in anyjurisdiction or the initiation of any proceeding for such purpose, providedthat, considering the advice of counsel, the Company reasonably believes thatit must qualify in such jurisdiction; (iv) of any event or circumstancethat, considering the advice of counsel, the Company reasonably believesnecessitates the making of any changes in such registration statement orrelated prospectus, or any document incorporated or deemed to be incorporatedtherein by reference, so that, in the case of such registration statement, itwill not contain any untrue statement of a material fact or any omission tostate a material fact required to be stated therein or necessary to make thestatements therein not misleading, and that in the case of a relatedprospectus, it will not contain any untrue statement of a material fact or anyomission to state a material fact required to be stated therein or necessary tomake the statements therein, in the light of the circumstances under which theywere made, not misleading; or (v) that the Company reasonably believes,considering the advice of counsel, that the Company may, in the absence of asuspension described hereunder, be required under state or federal securitieslaws to disclose any corporate development, the disclosure of which couldreasonably be expected to have a material adverse effect upon the Company, itsstockholders, a potentially material transaction or event involving theCompany, or any negotiations, discussions or proposals directly relatingthereto; then the Company shall deliver a written notice (a “***Suspension Notice***”)to Pfizer to the effect of the foregoing and, upon receipt of such SuspensionNotice, Pfizer will refrain from selling any Registrable Securities pursuant tosuch registration statement (a “***Suspension***”) until Pfizer receives copies of asupplemented or amended prospectus prepared and filed by the Company or untilPfizer is advised in writing by the Company that the current prospectus may beused and Pfizer has received copies of any additional or supplemental filingsthat are incorporated or deemed incorporated by reference in any suchprospectus.  In the event of aSuspension, the Company will use its commercially reasonable efforts to causethe use of the prospectus so

 

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suspended to be resumedas soon as reasonably practicable after delivery of a Suspension Notice toPfizer.

 

**(b)****                                 **Providedthat a Suspension is not then in effect, Pfizer may sell the RegistrableSecurities under the registration statement, provided that Pfizer arranges fordelivery of a current prospectus to the transferee of such RegistrableSecurities to the extent such delivery is required by applicable law.

 

**6.9****                               Terminationof Registration Rights. **Allregistration rights granted under this Section 6 shall terminate and be ofno further force and effect on the first to occur of the following: (a) thesale of all of the Registrable Securities by Pfizer and (b) the fifth****anniversary of the date of this Agreement.

 

**6.10****                        Delay ofRegistration; Furnishing Information.**

 

**(a)****                                 **Pfizershall not have any right to obtain or seek an injunction restraining orotherwise delaying any such registration as the result of any controversy thatmight arise with respect to the interpretation or implementation of this Section 6.

 

**(b)****                                 **Itshall be a condition precedent to the obligations of the Company to take anyaction pursuant to Section 6.2 or 6.3 that Pfizer shall furnish to theCompany such information regarding itself, the Registrable Securities held byit and the intended method of disposition of such Registrable Securities asshall be required to effect the registration of such Registrable Securities.

 

**6.11****                        Indemnification. **In the event any Registrable Securitiesare included in a registration statement pursuant to Section 6.2 or 6.3:

 

**(a)****                                 **Tothe extent permitted by law, the Company will indemnify and hold harmlessPfizer, the officers and directors of Pfizer, any underwriter (as defined inthe Securities Act) for Pfizer and each person, if any, who controls Pfizer orthe underwriter within the meaning of the Securities Act or the Exchange Act,against any losses, claims, damages or liabilities (joint or several) to whichthey may become subject under the Securities Act, the Exchange Act or otherfederal or state law, insofar as such losses, claims, damages or liabilities(or actions in respect thereof) arise out of or are based upon any of thefollowing statements, omissions or violations (collectively a “***Violation***”) by theCompany: (i) any untrue statement or alleged untrue statement of amaterial fact contained in such registration statement, including anypreliminary prospectus or final prospectus contained therein or any amendmentsor supplements thereto, (ii) the omission or alleged omission to statetherein a material fact required to be stated therein, or necessary to make thestatements therein not misleading or (iii) any violation or allegedviolation by the Company of the Securities Act, the Exchange Act, any statesecurities law or any rule or regulation promulgated under the SecuritiesAct, the Exchange Act or any state securities law in connection with theoffering covered by such registration statement; and the Company will pay asincurred to Pfizer, or such officer, director, underwriter or controllingperson of Pfizer, for any legal or other expenses reasonably incurred by themin connection with investigating or defending any such loss, claim, damage,liability or action; *provided however*,that the indemnity agreement contained in this Section 6.11(a) shallnot apply to amounts paid in

 

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settlement of any suchloss, claim, damage, liability or action if such settlement is effected withoutthe consent of the Company, which consent shall not be unreasonably withheld,nor shall the Company be liable in any such case for any such loss, claim,damage, liability or action to the extent that it arises out of or is basedupon a Violation which occurs in reliance upon and in conformity with writteninformation furnished expressly for use in connection with such registration byPfizer, or such officer, director, underwriter or controlling person of Pfizer.

 

**(b)****                                 **Tothe extent permitted by law, Pfizer will, if the Registrable Securities held byPfizer are included in a Company registration under the Securities Act,indemnify and hold harmless the Company, each of its directors, its officersand each person, if any, who controls the Company within the meaning of theSecurities Act, any underwriter and any other stockholder selling securitiesunder such registration statement or any of such other stockholder’s partners,directors or officers or any person who controls such stockholder, against anylosses, claims, damages or liabilities (joint or several) to which the Companyor any such director, officer, controlling person, underwriter or other suchstockholder, or partner, director, officer or controlling person of such otherstockholder may become subject under the Securities Act, the Exchange Act orother federal or state law, insofar as such losses, claims, damages orliabilities (or actions in respect thereto) arise out of or are based upon anyViolation, in each case to the extent (and only to the extent) that suchViolation occurs in reliance upon and in conformity with written informationfurnished by Pfizer specifically for use in connection with such registration;and Pfizer will pay as incurred any legal or other expenses reasonably incurredby the Company or any such director, officer, controlling person, underwriteror other stockholder, or partner, officer, director or controlling person ofsuch other stockholder in connection with investigating or defending any suchloss, claim, damage, liability or action if it is judicially determined thatthere was such a Violation; *provided, however,*that the indemnity agreement contained in this Section 6.11(b) shallnot apply to amounts paid in settlement of any such loss, claim, damage,liability or action if such settlement is effected without the consent ofPfizer, which consent shall not be unreasonably withheld; *providedfurther*, that in no event shall any indemnity under this Section 6.11(b) exceedthe net proceeds from the offering received by Pfizer.

 

**(c)****                                 **Promptlyafter receipt by an indemnified party under this Section 6.11 of notice ofthe commencement of any action (including any governmental action), suchindemnified party will, if a claim in respect thereof is to be made against anyindemnifying party under this Section 6.11, deliver to the indemnifyingparty a written notice of the commencement thereof and the indemnifying partyshall have the right to participate in, and, to the extent the indemnifyingparty so desires, jointly with any other indemnifying party similarly noticed,to assume the defense thereof with counsel mutually satisfactory to theparties; *provided, however,* that an indemnifiedparty shall have the right to retain its own counsel, with the fees andexpenses to be paid by the indemnifying party, if representation of suchindemnified party by the counsel retained by the indemnifying party would beinappropriate due to actual or potential differing interests between suchindemnified party and any other party represented by such counsel in suchproceeding.  The failure to deliverwritten notice to the indemnifying party within a reasonable time of thecommencement of any such action, if materially prejudicial to its ability todefend such action, shall relieve such indemnifying party of any liability tothe indemnified party under this Section 6.11, but the omission so todeliver written notice to the

 

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indemnifying party willnot relieve it of any liability that it may have to any indemnified partyotherwise than under this Section 6.11.

 

**(d)****                                 **Ifthe indemnification provided for in this Section 6.11 is held by a courtof competent jurisdiction to be unavailable to an indemnified party withrespect to any losses, claims, damages or liabilities referred to herein, theindemnifying party, in lieu of indemnifying such indemnified party thereunder,shall to the extent permitted by applicable law contribute to the amount paidor payable by such indemnified party as a result of such loss, claim, damage orliability in such proportion as is appropriate to reflect the relative fault ofthe indemnifying party on the one hand and of the indemnified party on theother in connection with the Violation(s) that resulted in such loss,claim, damage or liability, as well as any other relevant equitableconsiderations.  The relative fault ofthe indemnifying party and of the indemnified party shall be determined by acourt of law by reference to, among other things, whether the untrue or allegeduntrue statement of a material fact or the omission to state a material factrelates to information supplied by the indemnifying party or by the indemnifiedparty and the parties’ relative intent, knowledge, access to information andopportunity to correct or prevent such statement or omission; *provided*, that in no event shall any contribution by Pfizerhereunder exceed the net proceeds from the offering received by Pfizer.

 

**(e)****                                 **Theobligations of the Company and Pfizer under this Section 6.11 shallsurvive completion of any offering of the Registrable Securities in aregistration statement and the termination of this agreement.  No indemnifying party, in the defense of anysuch claim or litigation, shall, except with the consent of each indemnifiedparty, consent to entry of any judgment or enter into any settlement which doesnot include as an unconditional term thereof the giving by the claimant or plaintiffto such indemnified party of a release from all liability in respect to suchclaim or litigation.

 

**6.12****                        Assignmentof Registration Rights. **The rightsto cause the Company to register the Registrable Securities pursuant to this Section 6may not be assigned by Pfizer other than to an affiliate of Pfizer.

 

**6.13****                        Amendmentof Registration Rights. **Anyprovision of this Section 6 may be amended and the observance thereof maybe waived (either generally or in a particular instance and either retroactivelyor prospectively), only with the written consent of the Company andPfizer.  Any amendment or waiver effectedin accordance with this Section 6.13 shall be binding upon Pfizer and theCompany.  By acceptance of any benefitsunder this Section 6, Pfizer hereby agrees to be bound by the provisionshereunder.

 

**7.****                                      Rule 144Reporting.** With a view to makingavailable to Pfizer the benefits of Rule 144 under the SecuritiesAct and any other rule or regulation of the SEC that may at anytime permit Pfizer to sell the Registrable Securities to the public withoutregistration or pursuant to a registration statement on Form S-3, theCompany covenants and agrees to use its commercially reasonable efforts to: (a) makeand keep public information regarding the Company available, as those terms areunderstood and defined in Rule 144, until such time as Pfizer may sell allof the Registrable Securities in compliance with Rule 144 (or any othersimilar provisions then in force) without regard to the volume, manner of sale,current public information or other requirements thereof; (b) filewith the SEC in a timely manner all reports

 

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and other documentsrequired of the Company under the Securities Act and the Exchange Act; and (c) furnishto Pfizer upon written request, as long as Pfizer owns any RegistrableSecurities, (i) a written statement by the Company that it has compliedwith the applicable reporting requirements of Rule 144 and the ExchangeAct or that it qualifies as a registrant whose securities may be registered on Form S-3,(ii) a copy of the Company’s most recent Annual Report on Form 10-Kor Quarterly Report on Form 10-Q and (iii) such other documents filedwith the SEC as Pfizer may reasonably request in order to avail itself of any rule orregulation of the SEC that permits the selling of any Registrable Securitieswithout registration.

 

**8.****                                      Limitationson Resale and Standstill.**

 

**8.1****                               Resale. **During the Selling Period (as definedbelow), Pfizer and its affiliates will not take any of the following actions: (a) sellany Shares or other securities of the Company received on account of ownershipof such Shares (collectively, the “***Limitation Securities***”);(b) transfer, assign or otherwise dispose of any of the LimitationSecurities; (c) pledge, hypothecate or otherwise create a lien on any ofthe Limitation Securities; (d) loan to any person or entity any of theLimitation Securities; (e) sell short any of the Limitation Securities; (f) acquirea put option or grant a call option with respect to any of the LimitationSecurities; or (g) enter into any agreement concerning any of theforegoing transactions, or otherwise facilitate any other person conducting anyof the foregoing transactions.  Forpurposes of this Section 8.1, the “***Selling Period***”shall mean the period beginning on the date of this Agreement and ending on thedate that is one (1) year thereafter. Notwithstanding the foregoing, (i) from and after the date that issix (6) months after the date of this Agreement, Pfizer shall have theright to sell (if otherwise permitted pursuant to an effective registrationstatement and/or applicable law), during any rolling ninety (90) day periodduring the Selling Period, up to ten percent (10%) of the Limitation Securitiesand (ii) Pfizer shall at all times have the right to take any actiondescribed in clauses (a) – (g) above where such action is by andbetween Pfizer and an affiliate of Pfizer. Notwithstanding anything in this Agreement to the contrary, Pfizer shallnot sell the Limitation Securities if such sale would violate any applicablelaw.

 

**8.2.**                            *

 

**9.****                                      Miscellaneous.**

 

**9.1****                               Notices.**  All notices required or permitted hereundershall be in writing and shall be deemed effectively given: (a) uponpersonal delivery to the party to be notified, (b) when sent by confirmedfacsimile if sent during normal business hours of the recipient, and if notduring normal business hours of the recipient, then on the next business day, (c) five(5) calendar days after having been sent by registered or certified mail,return receipt requested, postage prepaid or (d) one (1) business dayafter deposit with a nationally recognized overnight courier, specifying nextday delivery, with written verification of receipt.  All communications shall be sent to the otherparty hereto at such party’s address hereinafter set forth on the signature page hereof,or at such other address as such party may designate by written notice to theother party hereto.

 

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**9.2****                               Successorsand Assigns.**  This Agreement shallinure to the benefit of the successors and assigns of the Company and, subjectto the restrictions on transfer herein set forth, be binding upon Pfizer’ssuccessors and assigns.

 

**9.3****                               GoverningLaw; Venue.**  This Agreement shall begoverned by and construed in accordance with the laws of the State ofDelaware.  The parties agree that anyaction brought by either party to interpret or enforce any provision of thisAgreement shall be brought in, and each party agrees to, and does hereby,submit to the jurisdiction and venue of, the appropriate state or federal courtsitting in Wilmington, Delaware.

 

**9.4****                               FurtherExecution.**  The parties agree to takeall such further commercially reasonable action(s) as may reasonably benecessary to carry out and consummate the transactions contemplated by thisAgreement as soon as practicable, and to take whatever commercially reasonablesteps may be necessary to obtain any governmental approval in connection withor otherwise qualify the issuance of the Shares.

 

**9.5****                               EntireAgreement; Amendment.**  ThisAgreement, together with the License and Development Agreement, dated as of April 16,2008, between the Company and Pfizer, constitutes the entire agreement betweenthe parties with respect to the subject matter hereof and supersedes all prioragreements or understandings, whether written or oral.  This Agreement may not be amended, modifiedor revoked, in whole or in part, except by an agreement in writing signed byeach of the parties hereto.

 

**9.6****                               Severability.**  If one or more provisions of this Agreementare held to be unenforceable under applicable law, the parties agree torenegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable andenforceable replacement for such provision, then (a) such provision shallbe excluded from this Agreement, (b) the balance of this Agreement shallbe interpreted as if such provision were so excluded and such that theobjectives contemplated by the parties when entering into this Agreement may berealized and (c) the balance of this Agreement shall be enforceable inaccordance with its terms.

 

**9.7****                               Counterparts.**  This Agreement may be executed in two or morecounterparts, each of which shall be deemed an original and all of whichtogether shall constitute one instrument.

 

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**IN WITNESS WHEREOF,** the partieshereto have executed this Agreement as of the day and year first above written.

 
|   | **AVANT IMMUNOTHERAPEUTICS, INC.** |
|--------|------------------------------------|
|   |                               |
|   | Address:                           | 119 Fourth Avenue |
|   |                               | Needham, MA 02494-2725 |
|   |                               |   |
|   |                               |
|   | By:                                |   |
|   | Name:                              |   |
|   | Title:                             |   |
|   |                               |
|   |                               |
|   | **PFIZER VACCINES LLC**            |
|   |                               |
|   | Address:                           | 235 East 42nd Street |
|   |                               | New York, NY 10017-5755 |
|   |                               |
|   |                               |
|   | By:                                |   |
|   | Name:                              | Martin Teicher |
|   | Title:                             | Vice President |
|        |                                    |  |  |  |  |  |

 

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