10.1

CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION.

DOUBLE ASTERISKS DENOTE SUCH OMISSIONS.

ROYALTY INTEREST ACQUISITION AGREEMENT

Dated as of April 22, 2016

between

Aviragen Therapeutics, Inc.,
Biota Scientific Management Pty. Ltd. and
     Biota Holdings Pty Ltd

and

HealthCare Royalty Partners III, L.P.

TABLE OF CONTENTS

This ROYALTY INTEREST ACQUISITION AGREEMENT is made and entered into as of April 22, 2016 by and between Aviragen Therapeutics, Inc. (formerly known as Biota Pharmaceuticals, Inc.), a Delaware corporation (“ Aviragen ”), Biota Holdings Pty Ltd (formerly known as Biota Holdings Limited), a corporation organized and existing under the laws of Victoria, Australia (“ BHPL ”), Biota Scientific Management Pty. Ltd., a corporation organized and existing under the laws of Victoria, Australia (“ BSM ”), and HealthCare Royalty Partners III, L.P., a limited partnership organized under the laws of the State of Delaware (the “ Agreement ”).

RECITALS

WHEREAS , BHPL, BSM and Daiichi Sankyo Company, Limited, a joint stock company organized and existing under the laws of Japan (“ Daiichi ”) have entered into (a) that certain Collaboration and License Agreement, effective as of September 29, 2003, with respect to, among other things, the development of the Product (this and other capitalized terms used and not defined in these Recitals shall have the meanings provided in ARTICLE I below), a true, correct and complete copy of which, together with all amendments, modifications and supplements thereto, is attached hereto as Exhibit A-1 (the “ Collaboration Agreement ”), and (ii) that certain Commercialization Agreement, effective as of March 27, 2009, with respect to the commercialization of the Product in Japan, a true, correct and complete copy of which, together with all amendments, modifications and supplements thereto, is attached hereto as Exhibit A-2 (the “ Commercialization Agreement ” and, together with the Collaboration Agreement, the “ License Agreements ” and each, individually, a “ License Agreement ”);

WHEREAS , pursuant to the License Agreements, subject to the terms and conditions set forth therein, Sellers have been and remain entitled to receive, during the Term (as defined in the Commercialization Agreement), Royalties; and

WHEREAS , Sellers wish to sell, assign, convey and transfer to Buyer, and Buyer wishes to accept the sale, assignment, conveyance, and transfer from Sellers of, the Assigned Rights held by Sellers pursuant to the License Agreements;

NOW, THEREFORE, in consideration of the mutual covenants, agreements representations and warranties set forth herein, the Parties agree as follows:

Article I.

DEFINITIONS

Section 1.01      Definitions.

The following terms, as used herein, shall have the following meanings:

“ Affiliate ” shall mean, with respect to any Person, any other Person that controls, is controlled by, or is under common control with such Person. For purposes of this definition, “ control ” shall mean (i) in the case of corporate entities, direct or indirect ownership of at least twenty percent (20%) of the stock or shares having the right to vote for the election of directors, and (ii) in the case of non-corporate entities, direct or indirect ownership of at least twenty percent (20%) of the equity interest with the power to direct the management and policies of such non-corporate entities.

“ Agreement ” has the meaning given in the preamble hereto.

“ Assigned Rights ” shall mean (i) the Royalty Interest and the absolute right to payment and receipt thereof under or pursuant to the License Agreements, (ii) any right under the License Agreements to receive royalty reports, worksheets, notices and other associated information to the extent related to the Royalty Interest or Net Sales of the Product in the Territory, and (iii) any right under the License Agreement to request inspection of records and accounts available in accordance with the License Agreements, to the extent related to the Royalty Interest or Net Sales of the Product in the Territory.

“ Assignment ” shall mean the Assignment pursuant to which Sellers shall assign, convey and transfer to Buyer Sellers’ rights and interests in and to the Assigned Rights, which Assignment shall be substantially in the form of Exhibit B .

“ Australia-Japan Income Tax Treaty ” shall mean the Convention between Australia and Japan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, and all amendments, renewals and successors thereof in effect from time to time from and after the Economic Commencement Date through and including the License Termination.

“ Australian Seller ” shall mean either or each of BHPL and/or BSM, as the context indicates, and “ Australian Sellers ” shall mean both of entities together.

“ Aviragen ” has the meaning given in the preamble hereto.

“ Bankruptcy Law ” shall mean Title 11 of the United States Code entitled “Bankruptcy” and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions (domestic or foreign) from time to time in effect and affecting the rights of creditors generally.

“ Base Amount ” shall mean the amount on any date by which the Closing Amount exceeds [**]; provided that in no event shall the Base Amount be less than [**].

“ BHPL ” has the meaning given in the preamble hereto.

“ BSM ” has the meaning given in the preamble hereto.

“ Business Day ” shall mean any day other than a Saturday, a Sunday, any day which is a legal holiday under the laws of Australia or the State of New York, or any day on which banking institutions located in Australia or the State of New York are required by law or other governmental action to close.

“ Buyer ” shall mean HealthCare Royalty Partners III, L.P., a limited partnership organized under the laws of the State of Delaware.

“ Buyer Deposit Account ” shall mean an account established, controlled and maintained by Buyer as the account into which Royalty Interest shall be deposited by Sellers. As of the Closing Date, the “Buyer Deposit Account” shall be:

[**]

“ Buyer Indemnified Party ” shall mean each of Buyer and its Affiliates and any of their respective partners, directors, managers, members, officers, employees and agents.

“ Buyer Transaction Expenses ” shall mean the amount of reasonable fees and expenses incurred by Buyer in connection with the consummation of the transactions contemplated by this Agreement, including reasonable, documented, out-of-pocket fees and expenses incurred in connection with Buyer’s confirmatory due diligence and the Transaction Documents.

“ Capital Stock ” of any Person shall mean any and all shares, interests, ownership interest units, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.

“ Claim ” shall mean any claim, demand, action or proceeding (including any investigation by any Governmental Authority).

“ Closing ” shall mean the closing of the transactions contemplated under this Agreement in accordance with Section 6.01 .

“ Closing Amount ” shall mean $20,000,000.

“ Closing Date ” shall mean the date all of the conditions set forth in ARTICLE VI are fulfilled or waived in writing by the applicable Party, as set forth in such ARTICLE VI .

“ Collaboration Agreement ” has the meaning given in the Recitals hereto.

“ Collateral ” shall have the meaning provided therefor in the Protective Rights Agreement.

“ Commercialization Agreement ” has the meaning given in the Recitals hereto.

“ Confidential Information ” means any and all information, whether communicated orally, by email or in any physical form, including without limitation, financial and all other information which Disclosing Party or its authorized Representatives provide to the Recipient, together with such portions of analyses, compilations, studies, or other documents, prepared by or for the Recipient and its Representatives, which contain or are derived from information provided by Disclosing Party. Without limiting the foregoing, information shall be deemed to be provided by Disclosing Party to the extent it is learned or derived by Recipient or Recipient’s Representatives (a) from any inspection, examination or other review of books, records, contracts, other documentation or operations of Disclosing Party, (b) from communications with authorized Representatives of Disclosing Party or (c) created, developed, gathered, prepared or otherwise derived by Recipient while in discussions with Disclosing Party. However, Confidential Information does not include any information which Recipient can demonstrate (i) is or becomes part of the public domain through no fault of Recipient or its Representatives, (ii) was known by Recipient on a non-confidential basis prior to disclosure, or (iii) was independently developed by Persons who were not given access to the Confidential Information disclosed to Recipient by Disclosing Party.

“ Confidentiality Agreement ” means that certain Confidentiality Agreement by and between Aviragen and HealthCare Royalty Management, LLC dated as of January 25, 2016.

“ Contract ” shall mean any agreement, contract, obligation, or undertaking.

“ CS-8958 ” means the less than once per day dosage neuraminidase inhibitor compound listed under the heading “Sankyo Compounds” in Appendix D to the Collaboration Agreement.

“ Cumulative Remaining Shortfall Amount ” shall mean, for any Measurement Period, the excess of (a) the aggregate amount of any and all Shortfall Amounts with respect to all prior Measurement Periods over (b) the aggregate amount of Royalty Interest Payments that Buyer has been paid with respect to such Shortfall Amounts, which for the avoidance of doubt shall be calculated on a cumulative basis with respect to all prior Measurement Periods.

“ Daiichi ” has the meaning given in the Recitals hereto.

“Daiichi Consent/Amendment” shall mean the written amendments to each of the License Agreements providing for the consent from Daiichi with respect to the Assignment and this Agreement and the amendments to the License Agreements and the other matters set forth therein, in substantially the form set forth in Exhibit C .

“ Disclosing Party ” shall mean, with respect to any Confidential Information, the Party disclosing the Confidential Information to the other Party.

“ Dispute ” shall mean any opposition, interference proceeding, reexamination proceeding, cancellation proceeding, re-issue proceeding, invalidation proceeding, inter parties review proceeding, injunction, claim, lawsuit, proceeding, hearing, investigation, complaint, arbitration, mediation, demand, investigation, decree, or any other dispute, disagreement, or claim.

“ Economic Commencement Date ” shall mean January 1, 2016.

“ Excluded Liabilities and Obligations ” shall mean each liability or obligation of Sellers or any of their respective Affiliates of whatever nature, whether presently in existence or arising or asserted hereafter, whether known or unknown, and whether under either License Agreement or any other Transaction Document or otherwise.

“ Expense Reimbursement Amount ” shall mean the lesser of (i) [**] and (ii) [**]% of the Buyer Transaction Expenses.

“ Exploit ” shall mean, with respect to a product such as the Product, the manufacture, use, sale, offer for sale (including marketing and promotion), importation, distribution or other commercialization; and “ Exploitation ” shall have the correlative meaning.

“ First Quarter 2016 Royalty Interest Payment ” shall mean the Royalty Interest Payment in the amount payable pursuant to clause (i) of the definition of Royalty Interest.

“ Fiscal Quarter ” shall mean a calendar quarter.

“ Governmental Authority ” shall mean any government, court, regulatory or administrative agency or commission, or other governmental authority, agency or instrumentality, whether foreign, federal, state or local, including any applicable Japanese patent office, the Ministry of Health of Japan or any other government authority in any country.

“ Indemnified Expenses ” shall mean collectively, all Losses with respect to which any Seller is obligated to indemnify any party pursuant to Section 8.04(a) .

“ Initial Royalty Interest Period ” shall mean the period beginning on April 1, 2016 through and including March 31, 2025.

“ Initial Royalty Interest Period Cap Amount ” shall mean, for any Measurement Period, the sum of (x) [**] earned in such Measurement Period, regardless whether royalties were received in such Measurement Period or thereafter and (y) any Cumulative Remaining Shortfall Amount. For purposes of clarification, the Initial Royalty Interest Period Cap Amount shall be net of all Japanese Withholding Taxes.

“ Initial Royalty Interest Period Threshold Amount ” shall mean, for any Measurement Period, the sum of (x) [**] earned in such Measurement Period, regardless whether royalties were received in such Measurement Period or thereafter and (y) any Cumulative Remaining Shortfall Amount. For purposes of clarification, the Initial Royalty Interest Period Threshold Amount shall be net of all Japanese Withholding Taxes.

“ Insolvency Event ” shall mean the occurrence of any of the following with respect to each Seller:

(i)     (A) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (x) relief in respect of such Seller or any Subsidiary, or of a substantial part of the property of such Seller or any Subsidiary, under any Bankruptcy Law now or hereafter in effect, (y) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Seller or any Subsidiary or for a substantial part of the property of such Seller or any Subsidiary or (z) the winding-up or liquidation of such Seller or any Subsidiary, which proceeding or petition shall continue undismissed for 60 calendar days or (B) an order of a court of competent jurisdiction approving or ordering any of the foregoing shall be entered;

(ii)     such Seller or any Subsidiary shall (A) voluntarily commence any proceeding or file any petition seeking relief under any Bankruptcy Law now or hereafter in effect, (B) apply for the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Seller or any Subsidiary or for a substantial part of the property of such Seller or any Subsidiary, (C) fail to contest in a timely and appropriate manner any proceeding or the filing of any petition described in clause (i) of this definition, (D) file an answer admitting the material allegations of a petition filed against it in any proceeding described in clause (i) of this definition, (E) make a general assignment for the benefit of creditors or (F) wind up or liquidate (except as permitted under this Agreement);

(iii)     such Seller or any Subsidiary shall take any action in furtherance of or for the purpose of effecting, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i) or (ii) of this definition;

(iv)     such Seller or any Subsidiary shall become unable, admit in writing its inability, or fail generally, to pay its debts as they become due; or

(v)     such Seller shall be in a financial condition such that the sum of its debts, as they become due and mature, is greater than the fair value of its property on a going concern basis, when taken together on a consolidated basis with its Subsidiaries which are party to the Transaction Documents.

“ Japanese Withholding Tax ” shall mean all Japanese withholding taxes on payment of Royalties pursuant to the Australia-Japan Income Tax Treaty.

“ Knowledge of the Sellers ” shall mean, with respect to each Seller, as applicable, the knowledge of the officers of such Seller and/or any of its Subsidiaries, as applicable, relating to a particular matter without any obligation to inquire or otherwise investigate relating to a particular matter; provided , however , that a person charged with responsibility for the aspect of the business relevant or related to the matter at issue shall be deemed to have knowledge of a particular matter to the extent that such person’s failure to have knowledge of such matter would constitute negligence in the context of his or her duties and responsibilities in the ordinary course of business.

“ Licensee ” shall mean Daiichi and/or any permitted collaborator or permitted sublicensee under the Commercialization Agreement.

“ License Agreement ” and “ License Agreements ” have the respective meanings given in the Recitals hereto.

“ License Termination ” means the date of termination of the Commercialization Agreement under Section 8.1 thereof.

“ Liens ” shall mean any lien, hypothecation, charge, security agreement, security interest, mortgage, pledge or any other encumbrance, right or claim of any Person of any kind whatsoever whether choate or inchoate, filed or unfiled, noticed or unnoticed, recorded or unrecorded, contingent or non-contingent, material or non-material, known or unknown.

“ Losses ” shall mean collectively, direct damages and the actual, documented out-of-pocket costs, fees and expenses (including reasonable expenses of investigation and reasonable legal fees and expenses of a single law firm), in any such case arising out of or relating to any claim, action, suit or proceeding commenced or threatened by any Person or entity (including a Governmental Authority), other than any Seller or Buyer or any of Buyer’s Affiliates, officers, directors, agents or other representatives, and relating to the activities or matters contemplated by this Agreement, but specifically excluding all Lost Profits and punitive damages.

“ Lost Profits ” shall mean collectively, any and all claims, damages and losses in respect of loss of profits and other consequential damages, including without limitation indirect damages, special damages, incidental damages and exemplary damages.

“ Material Adverse Effect ” shall mean (i) an Insolvency Event, (ii) a material adverse effect on the ability of any Seller to perform any of its obligations hereunder, under the other Transaction Documents or under the Daiichi Consent/Amendment, (iii) a material adverse effect on the right or ability of Buyer to receive the Royalty Interest or any payment due to Buyer hereunder as contemplated by this Agreement immediately following the Closing, (iv) a material adverse effect on the Royalty Interest or other Assigned Rights, including, without limitation, any material adverse effect on the Product or the ability of Licensee to distribute, market and/or sell the Product, or (v) a material breach by any Seller of any obligation owing by such Seller to Licensee pursuant to which Licensee may reduce or eliminate the amount of the Royalties (whether directly or indirectly, including, without limitation, by counterclaim or setoff), or the basis for calculation thereof, or to terminate Commercialization Agreement prior to the License Termination.

“ Measurement Period ” shall mean each period of twelve (12) consecutive calendar months beginning on April 1 of a calendar year and ending on March 31 of the succeeding calendar year; provided that the last Measurement Period of the Second Royalty Interest Period shall begin on April 1, 2029 and end on December 24, 2029. For the avoidance of doubt, the initial Measurement Period shall begin on April 1, 2016 and end on March 31, 2017.

“ Net Sales ” shall mean the gross amount invoiced by Daiichi, its Affiliates and any third party collaboration as set forth in Section 1.2.1 of the Commercialization Agreement (“ Collaborator ”) to third parties that are not Affiliates or Collaborator (unless such Affiliate or Collaborator is the end user of such Product in the Territory, in which case the amount billed therefore shall be deemed to be the amount that would be billed to a third party in an arm's length transaction) for sales or other dispositions of the Product in the Territory to third parties, less the following items, as allocable to such Product (if not previously deducted from the amount invoiced): (i) trade discounts, credits or allowances commissions, rebates, chargebacks; (ii) credits or allowances additionally granted upon returns, rejections or recalls (except where any such recall arises out of a Party's, its Affiliate's or Collaborator's gross negligence, willful misconduct or fraud); (iii) freight, shipping and insurance charges; (iv) taxes, duties or other governmental tariffs (other than income taxes); and (v) government mandated rebates. For the avoidance of doubt, the Parties agree that Net Sales includes sales of the Product not sold under the Pricing and Reimbursement Approval (as defined in the Commercialization Agreement), which includes but is not limited to sales to a governmental agency as inventory for a pandemic. Furthermore, Net Sales for a calendar quarter will be less any Product returned in that calendar quarter but sold in the preceding calendar quarter in Japan.

“ Other Payments ” shall mean any payments in lieu of or in respect of the Royalties or in satisfaction of the obligation to pay the Royalties (including without limitation any indemnity payments, recoveries, damages, settlement or other amounts to which Sellers are or may become entitled to pursuant to or in connection with either License Agreement, whether based on actual or alleged infringement, breach, re-licensing or otherwise), together with the rights to Indemnified Expenses pursuant to and in accordance with the terms and conditions of this Agreement.

“ Party ” shall mean Sellers or Buyer as the context indicates and “ Parties ” shall mean Sellers and Buyer.

“ Patent Rights ” shall mean the patents set forth on Schedule 3.13 .

“ Person ” shall mean an individual, corporation, partnership, limited liability company, limited partnership, association, trust or other entity or organization, but not including any Governmental Authority.

“ Product ” shall mean a finished pharmaceutical product that contains CS-8958.

“ Protective Rights Agreement ” shall mean the Protective Rights Agreement by and between Sellers and Buyer of even date herewith, which Protective Rights Agreement shall be substantially in the form of Exhibit D . For the avoidance of doubt, the Protective Rights Agreement is not intended to derogate from the validity of the absolute assignment of the Assigned Rights, as contemplated by this Agreement and as evidenced by the Assignment, but is being executed and delivered solely to protect Buyer’s interests to the extent such assignment becomes subject to a Recharacterization despite the Parties’ intentions.

“ Receiving Party ” shall mean, with respect to any Confidential Information, the Party receiving the Confidential Information from the other Party.

“ Recharacterization ” shall mean a judgment or order by a court of competent jurisdiction that Sellers’ right, title and interest in, to and under the License Agreements and the Assigned Rights were not fully sold, assigned and transferred to Buyer pursuant to, as contemplated by, and subject to the provisions of this Agreement and the Assignment, but instead that such transaction(s) constituted a loan and security device.

“ Recipient ” means, with respect to any Confidential Information disclosed by a Party hereto, the other Party which is receiving such Confidential Information.

“ Representative ” shall mean , with respect to any Person, directors, officers, employees, agents, co-investors, advisors, potential investors, underwriters, rating agencies, permitted assignees, sources of financing and trustees of such Person (other than competitors of Buyer and its Affiliates).

“ Royalties ” shall mean all amounts paid or payable to Sellers under the Commercialization Agreement in respect of or based on Net Sales of the Product in the Territory from and after the Economic Commencement Date through and including the License Termination.

“ Royalty Interest ” shall mean, as separately calculated for each Measurement Period:

(i)     with respect to the Fiscal Quarter ending March 31, 2016, [**]% of the sum of (a) Royalties earned and payable in respect of Net Sales for the Fiscal Quarter ending March 31, 2016, plus (b) Other Payments earned and payable in respect of the Fiscal Quarter ending March 31, 2016, up to an aggregate amount equal to [**];

(ii)      with respect to each Measurement Period to occur during the Initial Royalty Interest Period:

(A)     [**]% of the sum of (x) Royalties earned and payable in respect of Net Sales in such Measurement Period plus (y) Other Payments earned and payable in respect of such Measurement Period, up to the Initial Royalty Interest Period Threshold Amount;

(B)     [**]% of the sum of (x) Royalties earned and payable in respect of Net Sales in such Measurement Period plus (y) Other Payments earned and payable in respect of such Measurement Period, in excess of the Initial Royalty Interest Period Threshold Amount but not to exceed the Initial Royalty Interest Period Cap Amount; and

(C)     [**]% of the sum of (x) Royalties earned and payable in respect of Net Sales in such Measurement Period plus (y) Other Payments earned and payable in respect of such Measurement Period, in excess of the Initial Royalty Interest Period Cap Amount; and

(iii)      with respect to each Measurement Period to occur during the Second Royalty Interest Period:

(A)     [**]% of the sum of (x) Royalties earned and payable in respect of Net Sales in such Measurement Period plus (y) Other Payments earned and payable in respect of such Measurement Period, up to the Second Royalty Interest Period Threshold Amount;

(B)     [**]% of the sum of (x) Royalties earned and payable in respect of Net Sales in such Measurement Period plus (y) Other Payments earned and payable in respect of such Measurement Period, in excess of the Second Royalty Interest Period Threshold Amount but not to exceed the Second Royalty Interest Period Cap Amount; and

(C)     [**]% of the sum of (x) Royalties earned and payable in respect of Net Sales in such Measurement Period plus (y) Other Payments earned and payable in respect of such Measurement Period, in excess of the Second Royalty Interest Period Cap Amount.

For the avoidance of doubt, for purposes of calculating Royalty Interest, Royalties shall be applied to the Measurement Period in which the Net Sales giving rise to the royalty payment occurred notwithstanding that such royalty is actually paid by Licensee during a subsequent Measurement Period. For example, Royalties with respect to Net Sales that occurred in the Measurement Period ending March 31, 2017 shall be applied to the Measurement Period ending March 31, 2017 even if the royalty is paid during the Measurement Period ending March 31, 2018. Other Payments shall be applied to the Measurement Period with respect to which such breach of either License Agreement or infringement resulting in Other Payments occurred, regardless of when such Other Payments are received. If the Measurement Period in which the breach or default giving rise to Other Payments cannot be determined, then such Measurement Period shall be determined either (a) by a court or (b) by a settlement agreement or other writing signed by Sellers and Licensee (and consented to by Buyer, which consent shall not be unreasonably withheld), as applicable.

In the event there shall remain any Cumulative Remaining Shortfall Amount as of December 24, 2029, then for so long Sellers continue to receive payments in respect of Royalties and/or Other Payments, “Royalty Interest” shall mean [**]% of the sum of such Royalties and Other Payments until any and all Cumulative Remaining Shortfall Amount has been paid to Buyer in full.

For the avoidance of doubt, notwithstanding that Royalty Interest is earned and payable to Buyer, Seller shall not be obligated to pay Buyer such Royalty Interest until Seller is paid the corresponding royalties by the Licensee.

“ Royalty Interest Payment ” shall mean the payment of the Royalty Interest ( including, for the avoidance of doubt, the First Quarter 2016 Royalty Interest Payment).

“ Second Royalty Interest Period ” shall mean the period beginning on April 1, 2025 and ending on December 24, 2029.

“ Second Royalty Interest Period Cap Amount ” shall mean, for any Measurement Period, the sum of (x) $[**] earned in such Measurement Period, regardless whether royalties were received in such Measurement Period or thereafter and (y) any Cumulative Remaining Shortfall Amount. For purposes of clarification, the Second Royalty Interest Period Cap Amount shall be net of all Japanese Withholding Taxes.

“ Second Royalty Interest Period Threshold Amount ” shall mean, for any Measurement Period, the sum of (x) $[**] earned in such Measurement Period, regardless whether royalties were received in such Measurement Period or thereafter and (y) any Cumulative Remaining Shortfall Amount. For purposes of clarification, the Second Royalty Interest Period Threshold Amount shall be net of all Japanese Withholding Taxes.

“ Seller ” shall mean any or each of Aviragen, BHPL and/or BSM, as the context indicates, and “ Sellers ” shall mean all of entities collectively.

“ Seller Deposit Account ” shall mean an account established and maintained by either or both of Australian Sellers as the account into which all amounts that are or become payable to Australian Sellers under the Commercialization Agreement shall be deposited by Licensee. As of the Closing Date, the “Seller Deposit Account” shall be:

[**]

“ Seller Indemnified Party ” shall mean each of Sellers, their respective Affiliates and any of their respective partners, directors, managers, officers, employees and agents.

“ Shortfall Amount ” shall mean, with respect to any Measurement Period (other than the last Measurement Period of the Second Royalty Interest Period) in which the sum of (a) Royalties earned and payable in respect of Net Sales in such Measurement Period plus (b) Other Payments earned and payable in respect of such Measurement Period does not equal or exceed the Initial Royalty Interest Period Threshold Amount or the Second Royalty Interest Period Threshold Amount, as applicable, the amount equal to the difference of (i) the Initial Royalty Interest Period Threshold Amount or the Second Royalty Interest Period Threshold Amount, as applicable, minus (ii) the sum of (A) Royalties earned and payable in respect of Net Sales in such Measurement Period plus (B) Other Payments earned and payable in respect of such Measurement Period.

“ Subsidiary ” shall mean , with respect to any Person, at any time, any entity of which more than fifty percent (50%) of the outstanding Voting Stock or other equity interest entitled ordinarily to vote in the election of the directors or other governing body (however designated) is at the time beneficially owned or controlled directly or indirectly by such Person, by one or more such entities or by such Person and one or more such entities. Unless otherwise indicated herein, “Subsidiary” shall refer a “Subsidiary” of a Seller.

“ Territory ” shall mean Japan.

“ Third Party ” shall mean any Person other than a Seller or Buyer or their respective Affiliates.

“ Third Party Patent Rights ” shall mean, with respect to any Third Party, any and all issued patents and pending patent applications as of the date of this Agreement, including all provisional applications, substitutions, continuations, continuations-in-part, divisions, and renewals, all letters patent granted thereon, and all patents-of-addition, reissues, reexaminations and extensions or restorations by existing or future extension or restoration mechanisms (including regulatory extensions), and all supplementary protection certificates of such Third Party in the Territory.

“ Transaction Documents ” shall mean, collectively, this Agreement, the Assignment, the Protective Rights Agreement and the Daiichi Consent/Amendment.

“ UCC ” shall mean the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.

“ Use ” shall include the use, manufacture, marketing, sale, offer for sale, importation, distribution or commercialization.

“ Valid Claim ” shall mean a claim of an issued and unexpired patent, or a claim of a pending patent application, within the Product Related Patent Rights, which claim has not been held invalid, unpatentable or unenforceable by a court of competent jurisdiction from which no further appeal can be further taken, and has not been admitted to be invalid, unpatentable or unenforceable, which claim, but for a right to use such claim, would be infringed by the Product and/or its Exploitation; provided , however , that if a claim of a pending patent application shall not have issued as acclaim of an issued patent within five (5) years after the earliest filing date from which such claim claims priority, then such claim shall not be a “Valid Claim” for purposes of this Agreement unless and until such claim issues as a claim of an issued patent.

“ Voting Stock ” shall mean Capital Stock issued by a company, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such contingency.

Section 1.02      Currency . Unless otherwise specified, all references to monetary amounts in this Agreement are references to the lawful currency of the United States.

Article II.

SALE AND ASSIGNMENT

Section 2.01      Sale and Assignment.

Section 2.02      Royalty Interest Payments.

Section 2.03      Closing Payment.

Subject to the terms and conditions set forth herein, at the Closing, Buyer shall pay Sellers the difference of (i) the Closing Amount minus (ii) the Expense Reimbursement Amount by wire transfer of immediately available funds as directed by Sellers.

Section 2.04      No Assumption.

Notwithstanding any provision in this Agreement or any other Transaction Document or writing to the contrary, Buyer is accepting the purchase and assignment of only the Assigned Rights and is not assuming any Excluded Liabilities and Obligations. All Excluded Liabilities and Obligations shall be retained by and remain obligations and liabilities solely of Sellers or their respective Affiliates.

Article III.

REPRESENTATIONS AND WARRANTIES OF SELLERS

Sellers hereby represent and warrant to Buyer that the following representations are true and complete as of the date of this Agreement, except as otherwise indicated:          

Section 3.01      Organization.

Aviragen is a corporation duly incorporated, validly existing and in good standing under the laws of Delaware. Each of BHPL and BSM is a corporation duly incorporated, validly existing and in good standing under the laws of Victoria, Australia. Each Seller has all corporate powers and all licenses, authorizations, consents and approvals required to carry on its business as now conducted and as proposed to be conducted in connection with the transactions contemplated by the Transaction Documents and the License Agreements.

Section 3.02      Authorizations; Enforceability.

Section 3.03      Litigation.

Schedule 3.03 sets forth each (i) Dispute pending or threatened against any Seller, or to the Knowledge of the Sellers, pending or threatened against Daiichi, and (ii) inquiry of any Governmental Authority pending or threatened against any Seller, or to the Knowledge of the Sellers, pending or threatened against Daiichi, which, in each instance of clauses (i) and (ii), if adversely determined, could reasonably be expected to have a Material Adverse Effect.

Section 3.04      Compliance with Laws.

No Seller nor any Subsidiary (i) is in violation of, has violated, or is under investigation with respect to, or (ii) has been threatened to be, charged with or been given written notice of any violation of any law, rule, ordinance or regulation of, or any judgment, order, writ, decree, permit or license entered by, any Governmental Authority which, in the case of either clause (i) or clause (ii), could reasonably be expected to have a Material Adverse Effect.

Section 3.05      Conflicts.

Section 3.06      Ownership.

Sellers, until the Assignment is delivered, own, and collectively are the sole holders of all of the Assigned Rights, free and clear of any and all Liens (other than any Liens in favor of Buyer). Each Seller has full right and power to assign and convey the Assigned Rights as contemplated by this Agreement. No Seller has transferred, sold, conveyed, assigned, or otherwise disposed of, or agreed to transfer, sell, convey, assign, or otherwise dispose of any portion of the License Agreements and/or the Assigned Rights other than as contemplated by this Agreement. Upon delivery to Buyer of the executed Assignment, no Person other than Buyer shall have any right to receive the Royalty Interest. Upon delivery to Buyer of the executed Assignment, Sellers shall have sold, transferred, conveyed and assigned to Buyer, and Sellers shall have done everything which is required to be done by Sellers to cause Buyer to acquire all of Sellers’ rights, interests and obligations arising on or after the Economic Commencement Date under the License Agreements and the Assigned Rights, free and clear of any Liens (other than any Liens in favor of Buyer), but subject to the further provisions of this Agreement. Each Seller is legally competent to execute this Agreement and the other Transaction Documents and upon such execution by such Seller, the obligations of such Seller hereunder and thereunder shall constitute the legally binding and enforceable obligations of such Seller, subject to bankruptcy, insolvency, reorganization, moratorium, ad hoc representative appointment, conciliation, safeguard proceedings, judicial receivership, or other laws affecting creditors’ rights generally or general equitable principles.

Section 3.07      Subordination.

No Seller has caused, by any means, Sellers’ Royalties to be subordinated to the rights of any creditor of Daiichi or any other Person. In addition, no Seller has caused, and to the Knowledge of the Sellers no other Person has caused, the claims and rights of Buyer created by any Transaction Document (i) out of or in connection with the License Agreements and/or (ii) in and to the Assigned Rights and any Collateral, in each case, to be subordinated to any creditor of Daiichi or any other Person; provided , however , that no Seller makes any representation as to whether Buyer (or any Person acting on behalf of Buyer) has caused any such subordination.

Section 3.08      License Agreements.

Section 3.09      Net Sales.

Schedule 3.09 annexed hereto sets forth a true and complete list of all Net Sales of the Product provided by Daiichi and payments in respect of the Royalties paid and, to the Knowledge of the Sellers, payable by Daiichi to Sellers, for the Fiscal Quarter ending December 31, 2015. Buyer is aware that payments may differ in the future and that past payments made are no guarantee for future payments to be made.

Section 3.10      Broker’s Fees.

Except as set forth on Schedule 3.10 , no Seller has taken any action that would entitle any Person to any commission or broker’s fee in connection with the transactions contemplated by the Transaction Documents.

Section 3.11      Information.

All written information heretofore or herein supplied by or on behalf of Sellers or any of their respective Subsidiaries to Buyer is accurate and complete in all material respects, and none of such information, when taken together with all other information furnished, contains any untrue statement of a material fact or omits to state any material fact necessary to make such information not materially misleading in light of the circumstances under which made. To the Knowledge of the Sellers, there is no fact or circumstance that could reasonably be expected to have a Material Adverse Effect that has not been expressly disclosed in this Agreement, in the other Transaction Documents or in any other documents, certificates and statements furnished to Buyer for use in connection with the transactions contemplated hereby. All representations and warranties made by Sellers in any of the other Transaction Documents to which it is party are true and correct in all material respects.

Section 3.12      Insolvency Event; Material Adverse Effect.

No Insolvency Event has occurred regarding any Seller. To the Knowledge of the Sellers, no event has occurred and no condition exists that could reasonably be expected to result in a Material Adverse Effect.

Section 3.13      Patent Rights.

Section 3.14      Exploitation; Material Information.

To the Knowledge of the Sellers, Daiichi is not considering terminating the Exploitation of the Product.

Section 3.15      Taxes.

Article IV.

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer hereby represents and warrants to Sellers that the following representations are true and complete as of the date of this Agreement, except as otherwise indicated:

Section 4.01      Organization.

Buyer is a limited partnership formed and validly existing under the laws of the State of Delaware, and has all limited partnership powers and all licenses, authorizations, consents and approvals required to carry on its business as now conducted and as proposed to be conducted in connection with the transactions contemplated by the Transaction Documents.

Section 4.02      Authorization.

Buyer has all necessary limited partnership power and authority to enter into, execute and deliver this Agreement and the other Transaction Documents and to perform all of the obligations to be performed by it hereunder and thereunder and to consummate the transactions contemplated hereunder and thereunder. Once signed, the Transaction Documents will have been duly authorized, executed and delivered by Buyer and each Transaction Document will then constitute the valid and binding obligation of Buyer, enforceable against Buyer in accordance with their respective terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or general equitable principles.

Section 4.03      Broker’s Fees.

None of Buyer or its Affiliates has taken any action that would entitle any Person to any commission or broker’s fee in connection with the transactions contemplated by the Transaction Documents.

Section 4.04      Conflicts.

Neither the execution and delivery of this Agreement or any other Transaction Document nor the performance or consummation of the transactions contemplated hereby or thereby will: (i) contravene, conflict with, result in a breach or violation of, constitute a default under, or accelerate the performance provided by, in any material respects, any provisions of: (A) any law, rule or regulation of any Governmental Authority, or any judgment, order, writ, decree, permit or license of any Governmental Authority, to which Buyer or any of its assets or properties may be subject or bound; or (B) any contract, agreement, commitment or instrument to which Buyer is a party or by which Buyer or any of its assets or properties is bound or committed; (ii) contravene, conflict with, result in a breach or violation of, constitute a default under, or accelerate the performance provided by, any provisions of the organizational or constitutional documents of Buyer; or (iii) require any notification to, filing with, or consent of, any Person or Governmental Authority.

Article V.

COVENANTS

During the term of this Agreement, the following covenants shall apply:

Section 5.01      Consents and Waivers.

Sellers and Buyer shall use commercially reasonable efforts to obtain and maintain any required consents, acknowledgements, certificates or waivers so that the transactions contemplated by this Agreement or any other Transaction Document may be consummated and shall not result in any default or breach or termination of either License Agreement.

Section 5.02      Compliance.

Section 5.03      Confidentiality; Public Announcement.

Section 5.04      Protective Rights Agreement.

For protective purposes only and to secure each Seller’s performance of its obligations hereunder to the extent the assignment hereunder, as evidenced by the Assignment, becomes subject to a Recharacterization despite the Parties’ intentions, each Seller shall execute and deliver the Protective Rights Agreement at the Closing as contemplated by Section 6.02(d) .

Section 5.05      Further Assurances.

Section 5.06      Notice by Sellers; Enforcement of License Agreements.

Section 5.07      Patent Rights.

In the event that Daiichi elects to abandon any pending application for or granted Patent Right material to the Assigned Rights, Sellers shall prosecute, file or maintain such application or Patent Right to the fullest extent permitted under the License Agreements.

Section 5.08      Negative Covenants.

No Seller shall, or shall any Seller permit any of its Subsidiaries to, without the prior written consent of Buyer:

Section 5.09      Future Agreements.

No Seller shall enter into, or permit any of its Subsidiaries to enter into, any agreement that would or could reasonably be expected to result in a Material Adverse Effect without Buyer’s prior written consent, which consent may be withheld, delayed or conditioned in Buyer’s sole and absolute discretion.

Section 5.10      Records; Access.

Section 5.11      Remittance to Deposit Account; Set-Offs .

(a)     Pursuant to the Daiichi Consent/Amendment, Australian Sellers shall instruct Licensee to remit all amounts payable to Australian Sellers pursuant to the Commercialization Agreement directly to the Seller Deposit Account and may not change or otherwise amend such instruction without the prior written consent of Buyer. All payments made to Australian Sellers on account of the Royalty Interest shall be held by Australian Sellers in trust for the benefit of Buyer until remitted to Buyer pursuant to Section 5.11(b) of this Agreement. Sellers shall have no right, title or interest whatsoever in such amounts and shall not create any Lien thereon. Amounts deposited into the Seller Deposit Account shall be in United States dollars.

(b)     Upon receipt by Australian Sellers from Licensee of amounts in respect of the Royalty Interest, Australian Sellers shall instruct the bank holding the Seller Deposit Account to transfer such amounts from the Seller Deposit Account into the Buyer Deposit Account on the second Business Day after such amounts are received in the Seller Deposit Account. Amounts deposited into the Buyer Deposit Account shall be in United States dollars.

(c)     If any Seller fails to pay any amount that it is contractually obligated to pay to Licensee, and, as a consequence of such failure to pay, Licensee exercises a right of set-off and reduces amounts payable in respect of the Royalty Interest, then Sellers shall promptly, and in any event no later than five (5) Business Days, following the date on which any Seller becomes aware of such setoff pay to Buyer a sum equal to the amount of such reduction and in the currency in which the amount offset is denominated.

(d)     No Seller shall close, change or otherwise modify the Seller Deposit Account or open a new deposit account for remittance of the amounts payable pursuant to the License Agreements without the prior written consent of Buyer.

Section 5.12      Certain Covenants of Buyer.

Subject in all events to the provisions of Section 5.06 ,

(a)     Buyer will not communicate directly with Daiichi concerning the License Agreements, including the payment of royalties from Net Sales and commercialization of the Product in the Territory.

(b)     Buyer will not seek to enforce any of its rights under this Agreement directly against Daiichi.

Article VI.

THE CLOSING; CONDITIONS TO CLOSING

Section 6.01      Closing.

Subject to the closing conditions set forth in Sections 6.02 and 6.03 , and unless otherwise mutually agreed by the Parties, the closing of the transactions contemplated under this Agreement shall take place remotely via electronic delivery of the executed Transaction Documents and other deliverables at 9:00 a.m., Eastern Time, on the Closing Date.

Section 6.02      Conditions Applicable to Buyer.

The obligations of Buyer to effect the Closing and pay the Closing Amount pursuant to Section 2.03 hereof, shall be subject to the satisfaction of the following conditions, as of the Closing Date, any of which may be waived in writing by Buyer in its sole discretion:

Section 6.03      Conditions Applicable to Sellers.

The obligations of Sellers to effect the Closing shall be subject to the satisfaction of the following conditions, as of the Closing Date, any of which may be waived in writing by Sellers in their sole discretion:

Article VII.

TERMINATION

Section 7.01      Termination.

Section 7.02      Effects of Expiration or Termination.

Article VIII.

MISCELLANEOUS

Section 8.01      Survival.

Each representation and warranty of the Parties contained herein and any certificate related to such representations and warranties will survive the Closing and continue in full force and effect until the License Termination. Notwithstanding anything in this Agreement or implied by law to the contrary, each covenant and obligation in this Agreement and any certificate or document delivered pursuant to this Agreement will survive the Closing. Unless expressly waived pursuant to this Agreement, no representation, warranty, covenant, right or remedy available to any Person out of or in connection with this Agreement will be deemed waived by any action or inaction of that Person (including consummation of the Closing, any inspection or investigation, or the awareness of any fact or matter) at any time, whether before, on or after the Closing.

Section 8.02      Notices.

All notices, consents, waivers and communications hereunder given by any Party to the other shall be in writing (including electronic mail) and delivered personally, by electronic mail, by a recognized overnight courier, or by dispatching the same by certified or registered mail, return receipt requested, with postage prepaid, in each case addressed:

If to Buyer to:

HealthCare Royalty Partners III, L.P.

300 Atlantic Street, 6th Floor

Stamford, CT 06901

Attention:  Todd Davis
Email:  Todd.Davis@hcroyalty.com

with courtesy copies (which shall not constitute notice) to:

HealthCare Royalty Partners III, L.P.

300 Atlantic Street, 6th Floor

Stamford, CT 06901

Attention: Chief Legal Officer
Email:  royalty-legal@hcroyalty.com

and:

Cahill Gordon & Reindel LLP

80 Pine Street

New York, NY 10005

Attention:  Geoffrey E. Liebmann

Email:  gliebmann@cahill.com

If to any Seller to:

Aviragen Therapeutics, Inc.

2500 Northwinds Parkway

Suite 100

Alpharetta, GA 30009

Attention: Chief Executive Officer

Email:     legal@biotapharma.com

with a courtesy copy to (which shall not constitute notice):

Dechert LLP
1095 Avenue of the Americas
New York, NY 10036
Attention: David Rosenthal
Email: david.rosenthal@dechert.com

or to such other address or addresses as Buyer or Sellers may from time to time designate by notice as provided herein, except that notices of changes of address shall be effective only upon receipt. All such notices, consents, waivers and communications shall: (a) when posted by certified or registered mail, postage prepaid, return receipt requested, be effective five Business Days after dispatch, (b) when sent by electronic mail, be effective upon receipt by the transmitting party of confirmation of complete transmission or return email or “read” receipt from the recipient, or (c) when delivered by an internationally recognized overnight courier or in person, be effective upon receipt when hand delivered.

Section 8.03      Successors and Assigns.

The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. No Seller shall be entitled to assign any of its obligations and rights under the Transaction Documents without the prior written consent of Buyer; provided , however , such consent shall not be required in connection with the merger or other consolidation of such Seller or the assignment of such Seller’s obligations and rights by operation of law, so long as, the Person into which such Seller has been merged or consolidated or which has acquired such assets of such Seller has delivered evidence, in form and substance reasonably satisfactory to Buyer, to Buyer that such Person has assumed all of such Seller’s obligations under the Transaction Documents . Buyer may assign without consent of Sellers any of its rights and obligations under the Transaction Documents without restriction.  Any purported assignment in violation of this Section 8.03 shall be null and void.

Section 8.04      Indemnification.

Section 8.05      Independent Nature of Relationship; Taxes.

Section 8.06      Entire Agreement.

This Agreement, together with the Exhibits and Schedules hereto (which are incorporated herein by reference), and the other Transaction Documents constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements (including the Confidentiality Agreement), understandings and negotiations, both written and oral, between the Parties with respect to the subject matter of this Agreement. Neither this Agreement nor any provision hereof (other than Section 8.03 ), is intended to confer upon any Person other than the Parties any rights or remedies hereunder.

Section 8.07      Amendments; No Waivers.

Section 8.08      Interpretation.

When a reference is made in this Agreement to Articles, Sections, Schedules or Exhibits, such reference shall be to an Article, Section, Schedule or Exhibit to this Agreement unless otherwise indicated. The words “include”, “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation”. Neither Party shall be or be deemed to be the drafter of this Agreement for the purposes of construing this Agreement against one Party or the other.

Section 8.09      Headings and Captions.

The headings and captions in this Agreement are for convenience and reference purposes only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement.

Section 8.10      Counterparts; Effectiveness.

This Agreement may be executed in two or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. This Agreement shall become effective when each Party shall have received a counterpart hereof signed by the other Party. Any counterpart may be executed by facsimile or .pdf signature and such facsimile or .pdf signature shall be deemed an original.

Section 8.11      Severability.

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nevertheless be given full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree by a court of competent jurisdiction shall remain in full force and effect to the extent not held invalid or unenforceable.

Section 8.12      Expenses.

Sellers will pay all of their fees and expenses in connection with entering into and consummating the transactions contemplated by this Agreement as well as the Expense Reimbursement Amount.

Section 8.13      Governing Law; Jurisdiction.

Section 8.14      Waiver of Jury Trial.

Each Party hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any action, proceeding, claim or counterclaim arising out of or relating to any Transaction Document or the transactions contemplated under any Transaction Document (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO ANY TRANSACTION DOCUMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY HERETO WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.14 .

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective authorized officers as of the date first above written.

[Signature Page to Royalty Interest Acquisition Agreement]

Exhibit A-1

Collaboration Agreement

[See attached]

Exhibit A-2

Commercialization Agreement

[See attached]

Exhibit B

Form of Assignment

[See attached]

Exhibit C

Form of Daiichi Consent/Amendment

[See attached]

Exhibit D

Form of Protective Rights Agreement

[See attached]

Exhibit E-1

Form of Opinion of Counsel (Transaction Opinion)

[See attached]

Exhibit E-2

Form of Opinion of Counsel (Australian Counsel)

[See attached] Exhibit E-3

Form of Opinion of Counsel (Buyer Counsel)

[See attached]

 Schedule 3.03

Litigation

None.

Schedule 3.09

Net Sales for the Fiscal Quarter ending December 31, 2015

[See attached]

Schedule 3.10

Broker’s Fees

Pursuant to the terms of the letter agreement dated December 8, 2015 between Aviragen and FBR Capital Markets & Co., Aviragen has agreed to pay FBR Capital Markets & Co. certain fees and commissions in connection with the transactions contemplated by the Transaction Agreements.

Schedule 3.13

Patent Rights

[See attached]

10.2

PROTECTIVE RIGHTS AGREEMENT

THIS PROTECTIVE RIGHTS AGREEMENT (this “ Agreement ”) is made and entered into as of April 22, 2016 by and between Aviragen Therapeutics, Inc. (formerly known as Biota Pharmaceuticals, Inc.), a Delaware corporation (“ Aviragen ”), Biota Holdings Pty Ltd (formerly known as Biota Holdings Limited), a corporation organized and existing under the laws of Victoria, Australia (“ BHPL ”), Biota Scientific Management Pty. Ltd., a corporation organized and existing under the laws of Victoria, Australia (“ BSM ” and, together with Aviragen and BHPL, “ Grantors ”), and HealthCare Royalty Partners III, L.P., a Delaware limited partnership (“ HC Royalty ”).

RECITALS:

A.     Grantors and HC Royalty are parties to that certain Royalty Interest Acquisition Agreement of even date herewith.

B.     The Royalty Interest Acquisition Agreement provides that Grantors have agreed to assign to HC Royalty, and HC Royalty has agreed to acquire from Grantors, the Assigned Rights (as defined in the Royalty Interest Acquisition Agreement).

C.     Grantors have agreed pursuant to the terms of the Royalty Interest Acquisition Agreement to enter into this Agreement, under which Grantors grant to HC Royalty a security interest in and to the Collateral as security for the due performance and payment of all of Grantors’ obligations to HC Royalty under the Royalty Interest Acquisition Agreement.

AGREEMENT:

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantors and HC Royalty, with intent to be legally bound hereby, covenant and agree as follows:

Section 1.      Definitions .

For purposes of this Agreement, capitalized terms used herein shall have the meanings set forth below. Capitalized terms used herein and not otherwise defined shall have the meaning given such terms in the UCC or the Royalty Interest Acquisition Agreement, as applicable.

“Agreement” has the meaning set forth in the preamble to this Agreement.

“Aviragen” has the meaning set forth in the preamble to this Agreement.

“BHPL” has the meaning set forth in the preamble to this Agreement.

“BSM” has the meaning set forth in the preamble to this Agreement.

“Collateral” has the meaning set forth in Section 2 of this Agreement.

“HC Royalty” has the meaning set forth in the preamble to this Agreement.

“Party” means any of the Grantors or HC Royalty as the context indicates and “ Parties ” shall mean all of the Grantors and HC Royalty .

“Royalty Interest Acquisition Agreement” means the Royalty Interest Acquisition Agreement entered into as of the date hereof by and between Aviragen, BHPL, BSM and HC Royalty, as the same may be amended, modified or supplemented in accordance with the terms thereof.

“Secured Obligations” means all obligations and liabilities of every nature of Grantors now or hereafter existing under or arising out of or in connection with the Royalty Interest Acquisition Agreement and each other Transaction Document to which it is a party, whether for damages, principal, interest, reimbursement of fees, expenses, indemnities or otherwise (including without limitation interest, fees and other amounts that, but for the filing of a petition in bankruptcy with respect to a Grantor, would accrue on such obligations, whether or not a claim is allowed against such Grantor for such interest, fees and other amounts in the related bankruptcy proceeding), whether voluntary or involuntary, direct or indirect, absolute or contingent, liquidated or unliquidated, whether or not jointly owed with others, and whether or not from time to time decreased or extinguished and later increased, created or incurred, and all or any portion of such obligations or liabilities that are paid, to the extent all or any part of such payment is avoided or recovered directly or indirectly from HC Royalty as a preference, fraudulent transfer or otherwise.

“Transfer” means any sale, conveyance, assignment, disposition, pledge, hypothecation or transfer.

“UCC” means the Uniform Commercial Code, as in effect on the date of this Agreement in the State of New York.

Section 2.      Grant of Security .

Grantors hereby grant HC Royalty a security interest in all of its right, title, and interest in, to and under the following property, whether now or hereinafter existing or acquired, whether tangible or intangible and wherever the same may be located (collectively, the “ Collateral ”):

(a)     the Assigned Rights, including, without limitation, the Royalty Interest, whether it constitutes an account or a payment intangible under the UCC, and whether or not evidenced by an instrument or a general intangible, and the absolute right to payment and receipt of the Royalty Interest under or pursuant to the License Agreements;

(b)     the Seller Deposit Account;

(c)     all books, records and databases of Grantors relating to any of the foregoing Collateral; and

(d)     all Proceeds of or from any and all of the foregoing Collateral, including all payments under any indemnity, warranty or guaranty, and all money now or at any time in the possession or under the control of, or in transit to, HC Royalty, relating to any of the foregoing Collateral.

Each item of Collateral listed in this Section 2 that is defined in Article 9 of the UCC shall have the meaning set forth in the UCC, it being the intention of Grantors that the description of the Collateral set forth above be construed to include the broadest possible range of assets described herein.

The Assigned Rights have been sold, assigned, transferred and conveyed to HC Royalty pursuant to the Royalty Interest Acquisition Agreement and it is the intention of the Parties that such transaction be treated as a true and absolute sale. The security interest granted in this Section 2 is granted as a precaution against the possibility, contrary to the Parties’ intentions, that the transaction be characterized as other than a true and absolute sale.

Section 3.      Security for Obligations .

This Agreement secures, and the Collateral is collateral security for, the due and punctual payment or performance in full (including without limitation the payment of amounts that would become due but for the operation of the automatic stay under Subsection 362(a) of the United States Bankruptcy Code) of all Secured Obligations.

Section 4.      Grantors to Remain Liable .

Anything contained herein to the contrary notwithstanding, (a) Grantors shall remain liable under any contracts and agreements included in the Collateral, to the extent set forth therein, to perform all of their respective duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by HC Royalty of any of its rights hereunder shall not release Grantors from any of their duties or obligations under the contracts and agreements included in the Collateral, and (c) HC Royalty shall not have any obligation or liability under any contracts, licenses, and agreements included in the Collateral by reason of this Agreement, nor shall HC Royalty be obligated (i) to perform any of the obligations or duties of Grantors thereunder, (ii) to take any action to collect or enforce any claim for payment assigned hereunder, or (iii) to make any inquiry as to the nature or sufficiency of any payment Grantors may be entitled to receive thereunder .

Section 5.      Representations and Warranties .

Grantors represent and warrant as follows:

(a)      Validity . This Agreement creates a valid security interest in the Collateral securing the payment and performance in full of the Secured Obligations. Upon the filing of appropriate UCC financing statements in the filing offices listed on Schedule 5(b) , all filings, registrations, recordings and other actions necessary or appropriate to create, preserve, protect and perfect a first priority security interest will have been accomplished and such security interest will be prior to the rights of all other Persons therein and free and clear of any and all Liens, except any Liens created in favor of HC Royalty pursuant to this Agreement and any other Transaction Document to which HC Royalty is a party.

(b)      Authorization, Approval . No authorization, approval, or other action by, and no notice to or filing with, any government or agency of any government or other Person is required either (i) for the grant by Grantors of the security interest granted hereby or for the execution, delivery and performance of this Agreement by Grantors; or (ii) for the perfection of, and the first priority of, the grant of the security interest created hereby or the exercise by HC Royalty of its rights and remedies hereunder, other than in the case of clause (i), the consent of Daiichi Sankyo Company, Limited pursuant to clause 16.1 of the Commercialization Agreement, and in the case of clause (ii), the filing of financing statements in the offices listed on Schedule 5(b) .

(c)      Enforceability . This Agreement is the legally valid and binding obligation of Grantors, enforceable against Grantors in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or general equitable principles.

(d)      Office Locations; Type and Jurisdiction of Organization . The sole place of business, the chief executive office and each office where each Grantor keeps its records regarding the Collateral are, as of the date hereof, located at the locations set forth on Schedule 5(d) ; each Grantor’s type of organization (e.g., corporation) and jurisdiction of organization are listed on Schedule 5(d) .

(e)      Names . Except as set forth on Schedule 5(e) , no Grantor (or any predecessor by merger or otherwise) has, within the five (5) year period preceding the date hereof, had a different name from the name listed for such Grantor on the signature pages hereof.

(f)      Ownership of Collateral; No Other Filings . Except for the security interest created by this Agreement, Grantors own the Collateral free and clear of any Lien, except those Liens created in favor of HC Royalty pursuant to any other Transaction Document to which HC Royalty is a party. Each Grantor has the power to transfer and grant a lien and security interest in each item of Collateral upon which it purports to grant a lien or security interest hereunder. Except as such as may have been filed in favor of HC Royalty relating to this Agreement, no effective financing statement or other instrument similar in effect covering all or any part of the Collateral is on file in any filing or recording office. No recordation of Licensee’s licensed rights in the subject patents has been made with the United States Patent and Trademark Office.

Section 6.      Further Assurances .

Grantors agree that from time to time, at their expense, Grantors will promptly execute and deliver and will cause to be executed and delivered all further instruments and documents, and will take all further action, that may be necessary, or that HC Royalty may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable HC Royalty to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, Grantors will: (i) deliver such other instruments or notices, in each case, as may be necessary, or as HC Royalty may reasonably request, in order to perfect and preserve the security interests granted or purported to be granted hereby or to enable HC Royalty to exercise and enforce its rights and remedies hereunder with respect to any Collateral, (ii) furnish to HC Royalty reports in connection with the Collateral as HC Royalty may reasonably request, all in reasonable detail, (iii) appear in and defend any action or proceeding that may affect Grantors’ title to or HC Royalty’s security interest in all or any part of the Collateral, and (iv) use commercially reasonable efforts to obtain any necessary consents of third parties to the assignment and perfection of a security interest to HC Royalty with respect to any Collateral. Grantors hereby authorize HC Royalty to file one or more financing or continuation statements, and amendments thereto, relative to all or any part of the Collateral.

Grantors agree to furnish HC Royalty promptly upon reasonable request by HC Royalty, with any information that is requested by HC Royalty in order to complete such financing statements, continuation statements, or amendments thereto.

Section 7.      Certain Covenants of Grantors .

Grantors shall:

(a)     not use or permit any Collateral to be used unlawfully or in violation of any provision of the Transaction Documents or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral;

(b)      give HC Royalty twenty (20) Business Days’ prior written notice of any change in any Grantor’s name, identity or corporate structure or reincorporation, reorganization, or taking of any other action that results in a change of the jurisdiction of organization of any Grantor;

(c)     give HC Royalty twenty (20) Business Days’ prior written notice of any change in any Grantor’s sole place of business, chief executive office or the office where any Grantor keeps its records regarding the Collateral or a reincorporation, reorganization or other action that results in a change of the jurisdiction of organization of any Grantor; and

(d)     pay promptly when due all taxes, assessments and governmental charges or levies imposed upon, and all claims against, the Collateral, except to the extent the validity thereof is being diligently contested in good faith and the applicable Grantor maintains reserves appropriate therefor under the generally accepted accounting principles used by such Grantor in the preparation of its financial statements; provided that Grantors shall in any event pay such taxes, assessments, charges, levies or claims not later than three (3) Business Days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against Grantors or any of the Collateral as a result of the failure to make such payment.

Section 8.      Special Covenants With Respect to the Collateral .

(a)     Each Grantor shall:

(i)     diligently keep reasonable records respecting the Collateral and at all times keep at least one (1) complete set of its records concerning such Collateral at its chief executive office or principal place of business;

(ii)     not create, incur, assume or cause to exist any Lien on any property included within the definition of Collateral except any Liens created in favor of HC Royalty pursuant to this Agreement and any other Transaction Document to which HC Royalty is a party; and

(iii)     not Transfer, or agree to Transfer, any Collateral.

(b)     Grantors shall, concurrently with the execution and delivery of this Agreement, execute and deliver to HC Royalty five (5) originals of a Special Power of Attorney in the form of Exhibit I annexed hereto for execution of an assignment of the Collateral to HC Royalty, or the implementation of the sale or other disposition of the Collateral pursuant to HC Royalty’s good faith exercise of the rights and remedies granted hereunder; provided , however , HC Royalty agrees that it will not exercise its rights under such Special Power of Attorney unless a default under one or more of the Transaction Documents has occurred and is continuing.

(c)     Grantors further agrees that a breach of any of the covenants contained in this Section 8 will cause irreparable injury to HC Royalty, that HC Royalty has no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 8 shall be specifically enforceable against Grantors, and Grantors hereby waive and agree not to assert any defenses against an action for specific performance of such covenants (other than any such defense based on the assertion that Grantors had performed and is performing such covenant(s)).

Section 9.      Deposit Account Control Agreement .

HC Royalty, Grantors and the account bank shall on the Closing Date enter into a deposit account control agreement in a form and substance reasonably acceptable to HC Royalty providing that upon any default under the Transaction Documents HC Royalty shall have a right to instruct the account bank with respect to the disposition of funds in the Seller Deposit Account in order to receive the Royalty Interest and to perfect HC Royalty’s interest in the Seller Deposit Account by “control” within the meaning of the UCC.

Section 10.      Standard of Care .

The powers conferred on HC Royalty hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the exercise of good faith and of reasonable care in the accounting for moneys actually received by HC Royalty hereunder, HC Royalty shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. HC Royalty shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which HC Royalty accords its own property.

Section 11.      Remedies Upon Default .

(a)     If, and only if, any default under one or more of the Transaction Documents shall have occurred and be continuing, HC Royalty may, in good faith, exercise in respect of the Collateral (I) all rights and remedies provided for herein, under the Royalty Interest Acquisition Agreement or otherwise available to it, and (II) all the rights and remedies of a secured party on default under the Uniform Commercial Code, in all relevant jurisdictions.

(b)     Anything contained herein to the contrary notwithstanding, upon the occurrence and during the continuation of a default under one or more of the Transaction Documents, HC Royalty shall have the right (but not the obligation) to bring suit, in the name of Grantors, HC Royalty or otherwise, to enforce any Collateral, in which event Grantors shall, at the request of HC Royalty, do any and all lawful acts and execute any and all documents required by HC Royalty in aid of such enforcement. Grantors shall promptly, upon demand, reimburse and indemnify HC Royalty as provided in Section 13 hereof in connection with the exercise of its rights under this Section 11 .

Section 12.      Application of Proceeds .

Except as expressly provided elsewhere in this Agreement, all proceeds received by HC Royalty in respect of any sale of, collection from, or other realization upon all or any part of the Collateral shall be applied in good faith to satisfy (to the extent of the net proceeds received by HC Royalty) such item or part of the Secured Obligations as HC Royalty may designate.

Section 13.      Expenses .

(a)     Grantors agree to pay to HC Royalty upon demand the amount of any and all costs and expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, that HC Royalty may reasonably and actually incur in connection with (i) the custody, preservation, use or operation of, or the sale of, collection from, or other realization upon, any of the Collateral, (ii) the exercise or enforcement of any of the rights of HC Royalty hereunder, or (iii) the failure by Grantors to perform or observe any of the provisions hereof.

(b)     The obligations of Grantors in this Section 13 shall survive the termination of this Agreement and the discharge of Grantors’ other obligations under this Agreement and the Royalty Interest Acquisition Agreement.

Section 14.      Continuing Security Interest; Termination .

This Agreement shall create a continuing security interest in the Collateral and shall (i) remain in full force and effect until termination of the Royalty Interest Acquisition Agreement in accordance with Section 7.01(b) thereof, (ii) be binding upon each Grantor and its respective successors and assigns, and (iii) inure, together with the rights and remedies of HC Royalty hereunder, to the benefit of HC Royalty and its successors, transferees and assigns. Upon termination of the Royalty Interest Acquisition Agreement in accordance with Section 7.01(b) thereof, the security interest granted hereby shall terminate and all rights to the Collateral shall revert to Grantors and HC Royalty shall, at the expense of the Grantors, execute such instruments of release and otherwise take such actions, or permit the Grantors to take such actions, as the Grantors may reasonably request to release the Collateral from the security interest granted hereby.

Section 15.      Amendments .

(a)     This Agreement or any term or provision hereof may not be amended, changed or modified except with the written consent of all Parties and the approval of such amendment, change or modification by Australian counsel to HC Royalty. No waiver of any right hereunder shall be effective unless such waiver is signed in writing by the Party against whom such waiver is sought to be enforced.

(b)     No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

(c)     No waiver or approval hereunder shall, except as may otherwise be stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by applicable law.

Section 16.      Notices .

All notices, consents, waivers and other communications hereunder shall be in writing and shall be delivered in accordance with Section 8.02 of the Royalty Interest Acquisition Agreement.

Section 17.      Severability .

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nevertheless be given full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree by a court of competent jurisdiction shall remain in full force and effect to the extent not held invalid or unenforceable.

Section 18.      Headings and Captions .

The headings and captions in this Agreement are for convenience and reference purposes only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement.

Section 19.      Governing Law; Jurisdiction .

(a)     This Agreement shall be governed by, and construed, interpreted and enforced in accordance with, the laws of the State of New York, USA without giving effect to the principles of conflicts of law thereof (other than Section 5-1401 of the General Obligations Law of the State of New York). Each Party unconditionally and irrevocably consents to the exclusive jurisdiction of the courts of the State of New York, USA located in the County of New York and the Federal district court for the Southern District of New York located in the County of New York with respect to any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each Party hereby further irrevocably waives any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens , which it may now or hereafter have to the bringing of any action or proceeding in such jurisdiction in respect of any Transaction Document.

(b)      Each Party hereby irrevocably consents to the service of process out of any of the courts referred to in subsection (a) above of this Section 19 in any such suit, action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to it at its address set forth in this Agreement. Each Party hereby irrevocably waives any objection to such service of process and further irrevocably waives and agrees not to plead or claim in any suit, action or proceeding commenced hereunder or under any other Transaction Document that service of process was in any way invalid or ineffective. Nothing herein shall affect the right of a Party to serve process on the other Party in any other manner permitted by law.

Section 20.      Waiver of Jury Trial .

Each Party hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any action, proceeding, claim or counterclaim arising out of or relating to this agreement or the transactions contemplated under this agreement (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY HERETO WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 20 .

Section 21.      Counterparts; Effectiveness .

This Agreement may be executed in two or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. This Agreement shall become effective when each Party shall have received a counterpart hereof signed by the other Party. Any counterpart may be executed by .pdf signature and such .pdf signature shall be deemed an original.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date first above written.

[Signature Page to Protective Rights Agreement]

SCHEDULE 5(b)
TO
PROTECTIVE RIGHTS AGREEMENT

Filing Offices

UCC:  

Secretary of State of the State of Delaware

Fulton County, Georgia

Recorder of Deeds of the District of Columbia

PPSR:  

The Personal Property Securities Register (" PPSR "), maintained by:

Australian Financial Security Authority

GPO Box 1550

Adelaide SA 5001

Australia

SCHEDULE 5(d)
TO
PROTECTIVE RIGHTS AGREEMENT
Office Locations, Type and Jurisdiction of Organization

Sole Place of Business and Chief Executive Office of Grantor :

Aviragen Therapeutics, Inc.

2500 Northwinds Parkway

Suite 100

Alpharetta, GA 30009

Addresses of the Properties at which Grantor Maintains Records Relating to the Collateral :

Aviragen Therapeutics, Inc.

2500 Northwinds Parkway

Suite 100

Alpharetta, GA 30009

Jurisdiction of Organization :

Delaware

Type of Organization :

Corporation

Sole Place of Business and Chief Executive Office of Grantor :

Unit 10

585 Blackburn Road

Notting Hill, VIC 3168

Australia

Addresses of the Properties at which Grantor Maintains Records Relating to the Collateral :

2500 Northwinds Parkway

Suite 100

Alpharetta, GA 30009

Jurisdiction of Organization :

Victoria, Australia

Type of Organization :

A registered Australian proprietary company limited by shares.

Sole Place of Business and Chief Executive Office of Grantor :

Unit 10

585 Blackburn Road

Notting Hill, VIC 3168

Australia

Addresses of the Properties at which Grantor Maintains Records Relating to the Collateral :

2500 Northwinds Parkway

Suite 100

Alpharetta, GA 30009

Jurisdiction of Organization :

Victoria, Australia

Type of Organization :

A registered Australian proprietary company limited by shares.

SCHEDULE 5(e)
TO
PROTECTIVE RIGHTS AGREEMENT

Name Changes

EXHIBIT I TO
PROTECTIVE RIGHTS AGREEMENT

SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each of Aviragen Therapeutics, Inc. ( formerly known as B iota P harmaceuticals , I nc .) (“ Aviragen ”), Biota Holdings Pty Ltd ( formerly known as Biota Holdings Limited ) (“ BHPL ”), Biota Scientific Management Pty. Ltd. (“ BSM ” and, together with Aviragen and BHPL, “ Grantors ”), hereby appoints and constitutes HEALTHCARE ROYALTY PARTNERS III, L.P. (“ HC Royalty ”) and each of its successors and assignees, its true and lawful attorney, with full power of substitution and with full power and authority to perform the following acts on behalf of Grantor upon any default under the Transaction Documents that is continuing (a) to ask for, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Collateral, (b) to receive, endorse and collect any drafts or other instruments, documents and chattel paper constituting Collateral in connection with clause (a) above, (c) to file any claims or take any action or institute any proceedings that HC Royalty may in its good faith sole discretion deem necessary or desirable for the collection of any of the Collateral, (d) to pay or discharge taxes or liens levied or placed upon or threatened against the Collateral, the legality or validity thereof and the amounts necessary to discharge the same to be determined by HC Royalty in its reasonable commercial judgment, any such payments made by HC Royalty to become obligations of Grantors to HC Royalty, due and payable immediately without demand, and (e) to sign and endorse any invoices, drafts against debtors, verifications, notices and other documents relating to the Collateral .

This Power of Attorney is made pursuant to a Protective Rights Agreement, dated as of April 22, 2016 between Grantors and HC Royalty (the “ Protective Rights Agreement ”) and is subject to the terms and provisions thereof. Terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Protective Rights Agreement. This Power of Attorney, being coupled with an interest, is irrevocable until the termination of the Protective Rights Agreement in accordance with Section 14 thereof.

Date: __________

[Signature Page to Special Power of Attorney]