Exhibit 10.4


 


THIS INSTRUMENT AND THE INDEBTEDNESS
EVIDENCED HEREBY, AND THE RIGHTS AND REMEDIES OF THE HOLDER OF THIS INSTRUMENT, ARE SUBORDINATED TO THE REPAYMENT AND FULL PERFORMANCE
OF THE COMPANY’S INDEBTEDNESS AND OTHER OBLIGATIONS UNDER (I) THAT CERTAIN FACILITY AGREEMENT, DATED AS OF MAY 11,
2016 (AS AMENDED, RESTATED, SUPPLEMENTED AND OTHERWISE MODIFIED FROM TIME TO TIME, THE “SENIOR FACILITY AGREEMENT”),
BY AND AMONG THE COMPANY AND THE LENDERS FROM TIME TO TIME PARTY THERETO (THE “SENIOR FACILITY LENDERS”) AND (II) THAT
CERTAIN LOAN AND SECURITY AGREEMENT, DATED AS OF OCTOBER 2, 2019 (AS AMENDED, RESTATED, SUPPLEMENTED AND OTHERWISE MODIFIED FROM
TIME TO TIME, THE “ABL AGREEMENT”), BY AND AMONG THE COMPANY, CERTAIN AFFILIATES OF THE COMPANY PARTY THERETO AND THE
LENDERS FROM TIME TO TIME PARTY THERETO (THE “ABL LENDERS”) AND ENCINA BUSINESS CREDIT, LLC, AS AGENT FOR SUCH ABL
LENDERS; AND THE HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS HEREOF AND THE PROVISIONS
OF (A) THAT CERTAIN SUBORDINATION AGREEMENT DATED AS OF THE DATE HEREOF AMONG THE COMPANY, THE HOLDER HEREOF AND THE SENIOR
FACILITY LENDERS (AS AMENDED, RESTATED, SUPPLEMENTED AND OTHERWISE MODIFIED FROM TIME TO TIME, THE “SENIOR FACILITY SUBORDINATION
AGREEMENT”) AND (B) THAT CERTAIN SUBORDINATION AGREEMENT DATED AS OF THE DATE HEREOF, AMONG THE COMPANY, THE HOLDER
HEREOF AND THE ABL LENDERS (AS AMENDED, RESTATED, SUPPLEMENTED AND OTHERWISE MODIFIED FROM TIME TO TIME, THE “ABL SUBORDINATION
AGREEMENT” AND, TOGETHER WITH THE SENIOR FACILITY SUBORDINATION AGREEMENT, THE “SUBORDINATION AGREEMENTS”).


 


UNSECURED CONVERTIBLE PROMISSORY NOTE


 


	Issue Date:	 	 	Principal: Up to U.S. 
	 	 	 	$5,000,000.00


 


FOR VALUE RECEIVED, NEOS THERAPEUTICS, INC.,
a Delaware corporation (the “Company”), hereby promises to pay to AYTU BIOSCIENCE, INC., a Delaware
corporation, or its permitted registered assigns (collectively, the “Holder”), the Principal (as defined below)
in the amount of up to Five Million U. S. dollars ($5,000,000.00) on the terms and conditions set forth in this Note (as defined
below), which has been issued by the Company pursuant to, and in accordance with, the terms of that certain Agreement and Plan
of Merger dated December [●], 2020 by and among the Company, Holder and Argon Merger Sub, Inc., a Delaware corporation,
(as amended, supplemented or otherwise modified from time to time, in accordance with its terms, the “Merger Agreement”).
The Company hereby promises to pay accrued and unpaid Interest and premium, if any, on the Principal on the dates, at the rates
and in the manner provided herein.


 






    


     


    

 


1.             Definitions.


 


(a)           Certain
Defined Terms. For purposes of this Note, the following terms shall have the following meanings:


 


(i)            “Act
of Bankruptcy” means, with respect to any Person, if (i) the Person shall (1) be or become insolvent, or (2) apply
for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or the like of
the Person or entity or of all or a substantial part of the Person’s or entity’s property, or (3) commence a voluntary
case under any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding
under the laws of any jurisdiction, or (4) file a petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding up or composition or adjustment of debts, or (5) the Person’s inability to pay the
Person’s debts as they mature, or (6) make an assignment for the benefit of the Person’s creditors; or (ii) a
proceeding or case shall be commenced, without the application or consent of the Person, and which is not dismissed within 90 days
after such commencement, in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution,
winding up or the composition or adjustment of debts of the Person or entity, (2) the appointment of a trustee, receiver,
custodian or liquidator or the like of the Person or entity, or of all or any substantial part of the Person’s property,
or (3) similar relief in respect of the Person under any law relating to bankruptcy, insolvency, reorganization, winding up
or composition or adjustment of debts.


 


(ii)           “Business
Day” means any day other than Saturday, Sunday or any other day on which commercial banks in New York, New York are
authorized or required by law to close.


 


(iii)            “Change
of Control” means (a) any “Person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act) other than the holders of the Company’s voting stock on the date the Merger Agreement is
executed and delivered by the parties thereto or their Controlled Investment Affiliates, is or shall at any time become the “beneficial
owner” (as defined in Rule 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of greater than 50%
of the voting interest in the Company’s stock, (b) a sale of substantially all of the assets of the Company and its
subsidiaries, or (c) the occurrence of a “Change of Control”, “Change in Control”, “Fundamental
Change” or concepts of similar import under the Senior Facility Agreement or the ABL Agreement; provided, however, in no
event shall a “Change of Control” include or be a reference to, or be deemed to have occurred upon, the consummation
of the transactions contemplated under the Merger Agreement on the Closing Date (as defined therein).


 


(iv)          “Controlled
Investment Affiliates” means as to any Person, any other Person that (a) directly or indirectly, is in control
of, is controlled by, or is under common control with, such Person and (b) is organized by such Person primarily for the
purpose of making equity or debt investments in one or more companies.


 






    


     


    

 


(v)          “Common
Stock” means the common stock of the Company, $0.001 par value per share.


 


(vi)         “Conversion
Amount” means the aggregate amount of Principal and Interest to be converted, which as of the Conversion Date, will
be 100% of Principal as of such date, together with all accrued and unpaid Interest thereon as of such date.


 


(vii)        “Conversion
Date” means the date of delivery via facsimile or electronic mail of a Conversion Notice.


 


(viii)       “Conversion
Price” means, as of any Conversion Date, the greater of (i) $0.50, subject to adjustment for any Stock Event that
occurs after the date hereof, and (ii) 90% of the arithmetic average of the Volume Weighted Average Prices per Share on each
of the thirty (30) Trading Days immediately preceding the Conversion Date (the “Measurement Period”); provided,
that in the event that a stock split, stock combination, reclassification, payment of stock dividend, recapitalization or other
similar transaction of such character that the Shares shall be changed into or become exchangeable for a larger or small number
of Shares (a “Stock Event”) is consummated during the Measurement Period, the Volume Weighted Average Price
for all Trading Days during the Measurement Period prior to the effectiveness of the Stock Event shall be appropriately adjusted
to reflect such Stock Event.


 


(ix)          “Conversion
Shares” means fully paid and nonassessable Shares issuable upon conversion of the Note in accordance with Section 3.


 


(x)           “Delisting
Event” means an event which shall be deemed to have occurred if the Shares cease to be listed, traded or publicly quoted
on the Principal Market on which Shares are listed as of such date, and shall continue until such Shares are relisted or requoted
on either the New York Stock Exchange, the NYSE American, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ
Capital Market or, in each case, any successor thereto (each, a “Principal Market”).


 


(xi)          “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the SEC
thereunder.


 


(xii)         “Interest”
means any interest (including any default interest) accrued on the Principal pursuant to the terms of this Note.


 


(xiii)        “Maturity
Date” shall mean the earlier of (i) acceleration of the obligations evidenced hereby and (ii) November 7,
2022.


 


(xiv)        “Market
Disruption Event” means, with respect to any Trading Day and any security, (a) a failure by the Principal Market
to open for trading during its entire regular trading session, (b) the occurrence or existence prior to 1:00 p.m., New York
City time, on such day for such securities for more than one half-hour period in the aggregate during regular trading hours of
any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant securities
exchange or otherwise) in such securities or in any options, contracts or future contracts relating to such securities, or (c) to
the extent “Volume Weighted Average Price” is determined in accordance with clause (b) of the definition thereof,
the suspension of trading for the one-half hour period ending on the scheduled close of trading on such day (by reason of movements
in price exceeding limits permitted by the stock exchange or otherwise) in such securities.


 






    


     


    

 


(xv)         “Note”
means this Unsecured Convertible Promissory Note (including all unsecured convertible promissory notes issued in exchange herefor
or, upon transfer or replacement hereof, and as any of the foregoing may be further amended, restated, supplemented or otherwise
modified from time).


 


(xvi)        “Person”
means and includes any natural person, individual, partnership, limited partnership, joint venture, corporation, trust, limited
liability company, limited company, joint stock company, unincorporated organization, government entity or any political subdivision
or agency thereof, or any other entity.


 


(xvii)       “Principal”
means the outstanding principal amount of this Note as of any date of determination.


 


(xviii)      “Principal
Market” shall have the meaning set forth in the definition of Delisting Event above.


 


(xix)         “Reg
Rights Side Letter” means the letter agreement, dated as of December 10, 2020 between Holder and the Company and
substantially in the form attached hereto as Exhibit B.


 


(xx)          “Register”
means the register for the recordation of the name and address of the Holder of this Note and the Principal (and stated Interest)
owing to such Holder from time to time.


 


(xxi)         “SEC”
means the United States Securities and Exchange Commission.


 


(xxii)        “Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated by the SEC thereunder.


 


(xxiii)       “Shares”
means shares of Common Stock.


 


(xxiv)       “Trading
Day” means any day on which the Common Stock is traded for any period on the Principal Market; provided, that Trading
Day shall not include any Trading Day on which there is a Market Disruption Event.


 






    


     


    

 


(xxv)        “Volume
Weighted Average Price” for any security as of any Trading Day means (a) the volume weighted average sale price
of such security on the principal U.S. national or regional securities exchange on which such security is traded as reported by
Bloomberg Financial Markets or an equivalent, reliable reporting service mutually acceptable to and hereinafter designated by Holder
and the Company (“Bloomberg”), or (b) if no volume weighted average sale price is reported for such security,
then the closing price per share of such security as reported by Bloomberg, or, if no closing price per share is reported for such
security by Bloomberg, the average of the last bid and last ask price (or if more than one in either case, the average of the average
last bid and average last ask prices) on such Trading Day as reported in the composite transactions for the principal U.S. national
or regional securities exchange on which such security is traded. If the security is not listed for trading on a U.S. national
or regional securities exchange on the relevant Trading Day, then the Volume Weighted Average Price will be the average of the
mid-point of the last bid and last ask prices of the security in the over-the-counter market on the relevant Trading Day as reported
by the OTC Markets Group, Inc. or similar organization. If the Volume Weighted Average Price cannot be calculated for such
security on such date in the manner provided above, the Volume Weighted Average Price shall be the fair market value as mutually
determined by the Company and the holders of a majority in interest of the Notes being converted (based on the Principal amount
being converted by each such holder) for which the calculation of the Volume Weighted Average Price is required in order to determine
the Conversion Price of such Notes. Volume Weighted Average Price will be determined without regard to after-hours trading or any
other trading outside of the regular trading hours.


 


2.             Multi-Advances;
Principal & Interest; Payments.


 


(a)           Advances.
From time to time upon not less than 10 days’ prior written notice (which may be by electronic mail) by the Company to Holder
and provided that the aggregate amount of all advances made hereunder does not exceed $5,000,000, the Company may request, and
Holder shall advance, such sums as requested by the Company; provided that (i) no Event of Default has occurred and is continuing,
(ii) no “Event of Default”, as defined under each of the Senior Facility Agreement and the ABL Agreement, has
occurred and is continuing (iii) the Merger Agreement has not been terminated in accordance with its terms and (iv) any
advance is in an amount of not less than $100,000 and in $100,000 increments thereof.


 


(b)           Interest &
Principal. Interest shall accrue on the Principal at the rate of 6.0% per annum, calculated on the basis of the actual number
of days elapsed in a 365 day year, and shall compound monthly and be added to the Principal on the first day of each month beginning
January 1, 2021, and the first day of each month thereafter, and shall be due and payable with the Principal. The Company
acknowledges that this addition to Principal will result in the total outstanding principal amount of indebtedness evidenced by
this Note exceeding the face amount of this Note. If an Event of Default has occurred and is continuing, the interest rate then
in effect will be increased by 2.0% per annum (the “Default Margin”) and all overdue obligations under
this Note will bear interest at the interest rate in effect at such time plus the Default Margin. Subject to the provisions of
the Subordination Agreements, on the earlier to occur of acceleration of this Note and the Maturity Date, all Principal plus all
accrued and unpaid Interest shall be due and payable.


 


(c)           Optional
Prepayments. Subject to the provisions of the Subordination Agreements, the Company may prepay at any time and from time to
time, all or any portion of the balance remaining on this Note, without premium or penalty.


 


(d)           Mandatory
Prepayments. Subject to the provisions of the Subordination Agreements, upon payment in full in cash of all
obligations under each of the Senior Facility Agreement and the ABL Agreement and termination of all commitments to lend
thereunder, the Company shall repay the entire balance remaining under this Note on the first Business Day following the date
each of the Senior Facility Agreement and the ABL Agreement has been “Paid in Full” (as such term or any similar
term is defined in the applicable Subordination Agreement).


 






    


     


    

 


3.             Conversion
Rights. The Principal and accrued and unpaid Interest may be converted, in whole but not in part, into Shares on the terms
and conditions set forth in this Section 3.


 


(a)           Conversion
at Option of the Holder. At any time beginning 30 days after termination of the Merger Agreement, subject to (i) the 9.985%
Cap (as defined below), and (ii), the Exchange Cap (as defined below), the Holder shall be entitled to convert all or any part
of the outstanding Principal and accrued Interest, as of the date of the Conversion Notice therefor delivered in accordance with
this Section 3, into Conversion Shares in accordance with this Section 3 at the Conversion Rate (as defined in
Section 3(b)). The Company shall not issue any fraction of a Share upon any conversion. If the issuance would result
in the issuance of a fraction of a Share, then the Company shall round such fraction of a Share up or down to the nearest whole
share (with 0.5 rounded up).


 


(b)           Conversion
Rate. The number of Conversion Shares issuable upon a conversion of any portion of this Note pursuant to Section 3
shall be determined according to the following formula (the “Conversion Rate”):


 


               Conversion Amount            


Conversion
Price


 


(c)           Mechanics
of Conversion. The conversion of Principal and Interest (“Conversion”) shall be conducted in the following
manner:


 


(i)            Holder’s
Delivery Requirements. To convert a Conversion Amount into Conversion Shares pursuant to Section 3(a) above
on any date, the Holder shall transmit by facsimile or electronic mail (or otherwise deliver), for receipt on or prior to 5:00
p.m. New York City time on such date, a copy of a conversion notice in the form attached hereto as Exhibit A (the
 “Conversion Notice”) to the Company (Attention: Richard Eisenstadt, Fax: (972) 408-1143, Email:
reisenstadt@neostx.com).


 


(ii)           Company’s
Response. Subject to Section 3(g)(ii), upon receipt or deemed receipt by the Company of a copy of a Conversion
Notice, the Company (I) shall promptly send, via electronic mail a confirmation of receipt of such Conversion Notice to the
Holder and the Company’s designated transfer agent (the “Transfer Agent”), which confirmation shall constitute
an instruction to the Transfer Agent to process such Conversion Notice in accordance with the terms herein, and (II) on or
before the second (2nd) Business Day following the date of receipt or deemed receipt by the Company of such Conversion Notice
(or, if earlier, the end of the then standard settlement period for U.S. broker-dealer securities transactions) (the “Share
Delivery Date”), (A) provided the Holder (or its designee) is eligible to receive such Conversion Shares through
The Depository Trust Company (“DTC”) (which shall include any time at which the Unrestricted Conditions (as
defined below) are satisfied), credit such aggregate number of Conversion Shares to which the Holder shall be entitled to the
Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian (“DWAC”)
system, or (B) if the foregoing shall not apply, issue and deliver to the address as specified in the Conversion Notice,
a stock certificate, registered in the name of the Holder or its designee, in each case, for the number of Conversion Shares to
which the Holder shall be entitled. The Conversion Shares will be free-trading, and freely transferable, and will not contain
a legend (or stop transfer instructions) restricting the resale or transferability of the Conversion Shares if any of the Unrestricted
Conditions (as defined below) is met.


 






    


     


    

 


(iii)          Dispute
Resolution. In the case of a dispute as to the determination of the Conversion Price or the arithmetic calculation of the
Conversion Rate, the Company shall instruct the Transfer Agent to issue to the Holder the number of Conversion Shares that is
not disputed and shall transmit an explanation of the disputed determinations or arithmetic calculations to the Holder via electronic
mail within two (2) Business Days of receipt or deemed receipt of the Holder’s Conversion Notice or other date of determination.
If the Holder and the Company are unable to agree upon the determination of the Conversion Price or arithmetic calculation of
the Conversion Rate within one (1) Business Day of such disputed determination or arithmetic calculation being transmitted
to the Holder, then the Company shall promptly (and in any event within two (2) Business Days) submit via electronic mail
(A) the disputed determination of the Conversion Price to an independent, reputable investment banking firm agreed to by
the Company and the Holder, or (B) the disputed arithmetic calculation of the Conversion Rate to the Company’s independent
registered public accounting firm, as the case may be. The Company shall direct the investment bank or the accounting firm, as
the case may be, to perform the determination or calculation and notify the Company and the Holder of the results no later than
two (2) Business Days from the time it receives the disputed determination or calculation. Such investment bank’s or
accounting firm’s determination or calculation, as the case may be, shall be binding upon all parties absent manifest error.
The fees and expenses of such investment bank or accountant shall be paid by the Company. Notwithstanding the existence of a dispute
contemplated by this paragraph, if requested by the Holder, the Company shall issue to the Holder the Conversion Shares not in
dispute in accordance with the terms hereof.


 


(iv)          Record
Holder. The Person or Persons entitled to receive the Conversion Shares issuable upon a Conversion shall be treated for all
purposes as the legal and record holder or holders of such Shares upon delivery by the Holder of the Conversion Notice, or in
the case of Conversion Shares the issuance of which is subject to a bona fide dispute that is subject to and being resolved
pursuant to, and in compliance with the time periods and other provisions of, the dispute resolution provisions of Section 3(c)(iii),
the first Business Day after the resolution of such bona fide dispute.


 






    


     


    

 


(v)           Company’s
Failure to Timely Convert.


 


(A)          Cash
Damages. If by the Share Delivery Date, the Company shall fail to issue the Conversion Shares and deliver a certificate to
the Holder for, or credit the Holder’s or its designee’s balance account with DTC with, the number of Conversion Shares,
as applicable, (free of any restrictive legend, provided any of the Unrestricted Conditions is satisfied) (a “Delivery
Failure”), then, in addition to all other available remedies that the Holder may pursue hereunder and under the Merger
Agreement, the Company shall pay additional damages to the Holder for each day after the Share Delivery Date such conversion is
not timely effected in an amount equal to two percent (2%) of the product of (I) the number of Conversion Shares not issued
to the Holder or its designee on or prior to the Share Delivery Date and to which the Holder is entitled and (II) the Volume
Weighted Average Price of the Common Stock on the Share Delivery Date (such product is referred to herein as the “Share
Product Amount”). Alternatively in lieu of the foregoing damages, subject to Section 3(c)(iii), at the written
election of the Holder made in the Holder’s sole discretion, if, on or after the applicable Conversion Date, the Holder
purchases (in an open market transaction or otherwise) Shares to deliver in satisfaction of a sale by such Holder of Conversion
Shares that such Holder anticipated receiving from the Company (such purchased Shares, “Buy-In Shares”), the
Company shall be obligated to promptly pay to such Holder (in addition to all other available remedies that the Holder may otherwise
have), 110% of the amount by which (A) such Holder’s total purchase price (including brokerage commissions, if any)
for such Buy-In Shares exceeds (B) the net proceeds received by such Holder from the sale of the number of Conversion Shares
such Holder was entitled to receive but had not received on the Share Delivery Date. If the Company fails to pay the additional
damages set forth in this Section 3(c)(v)(A) within five (5) Business Days of the date incurred, then the
Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments,
to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of Shares equal to
the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price
specified by the Holder in the Conversion Notice. Amounts payable pursuant to this Section 3(c)(v) shall be paid
on or before the fifth (5th) Business Day of each month following a month in which such payment accrued.


 


(B)           Void
Conversion Notice. If for any reason the Holder has not received all of the Conversion Shares prior to the tenth (10th) Business
Day after the Share Delivery Date with respect to a Conversion (a “Conversion Failure”), then the Holder, upon
written notice to the Company (a “Void Conversion Notice”), may void its Conversion with respect to, and retain
or have returned, as the case may be, any portion of Principal that has not been converted pursuant to the Holder’s Conversion
Notice; provided, that the voiding of the Holder’s Conversion Notice shall not affect the Company’s obligations
to make any payments that have accrued prior to the date of such notice pursuant to Section 3(c)(v)(A) or otherwise.


 


(vi)          Book-Entry.
Notwithstanding anything to the contrary set forth herein, upon Conversion or repayment of this Note in accordance with the terms
hereof, the Holder shall not be required to physically surrender this Note to the Company.


 


(d)           Taxes.
The Company shall pay any and all taxes (excluding income taxes, franchise taxes or other taxes levied on gross earnings, profits
or the like of the Holder) that may be payable with respect to the issuance and delivery of Conversion Shares upon the conversion
of this Note, unless the tax is due because the Holder requests any Conversion Shares to be issued in a name other than the Holder’s
name, in which case the Holder will pay that tax.


 






    


     


    

 


(e)           Legends.


 


(i)             Restrictive
Legend. The Holder understands that until such time as the Conversion Shares have been registered under the Securities Act
as contemplated by the Reg Rights Side Letter or otherwise may be sold pursuant to Rule 144 under the Securities Act or an
exemption from registration under the Securities Act without any restriction as to the number of securities as of a particular
date that can then be immediately sold, the Conversion Shares, as applicable, may bear a restrictive legend in substantially the
following form (and a stop-transfer order consistent therewith may be placed against transfer of the certificates for such securities):


 


THESE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW. THE SECURITIES
MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, INCLUDING PURSUANT TO RULE 144 UNDER THE SECURITIES
ACT OR PURSUANT TO A PRIVATE SALE EFFECTED UNDER SECTION 4(a)(7) OF THE SECURITIES ACT OR APPLICABLE FORMAL OR INFORMAL
SEC INTERPRETATION OR GUIDANCE, SUCH AS A SO-CALLED “4[(a)](1) AND A HALF SALE.” NOTWITHSTANDING THE FOREGOING,
THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED
BY THE SECURITIES.


 


(ii)            Removal
of Restrictive Legends. The certificates evidencing the Conversion Shares shall not contain or be subject to (and the Holder
shall be entitled to the removal of) any legend or stop transfer instructions restricting the transfer thereof (including the
legend set forth above in subsection 3(e)(i)): (A) while a registration statement covering the resale of such security by
the Holder is effective under the Securities Act, (B) following any sale of such Conversion Shares pursuant to Rule 144,
(C) if such Conversion Shares are eligible for sale under Rule 144(b)(1) without limitations, including with respect
to those described in Rule 144(c)(1), (D) if the Holder certifies at any time that the Holder is not an “affiliate”
of the Company (as such term is used under Rule 144 pursuant to the Securities Act), and the Holder’s holding period
for purposes of Rule 144 and subsection (d)(3)(iii) thereof with respect to the Conversion Shares is at least six (6) months
(it being acknowledged and agreed by the Company that the Holder’s holding period for the Conversion Shares shall be deemed
to have commenced on the date hereof), or (E) if such legend is not required under applicable requirements of the Securities
Act (including judicial interpretations and pronouncements issued by the staff of the SEC) (the “Unrestricted Conditions”).
Promptly following such time as any of the Unrestricted Conditions has been satisfied, the Company shall cause its counsel to
issue a legal opinion or other instruction to the Transfer Agent (if required by the Transfer Agent) to effect the issuance of
the Conversion Shares without a restrictive legend or, in the case of Conversion Shares that have previously been issued, the
removal of the legend thereunder. If any of the Unrestricted Conditions is met at the time of issuance of the Conversion Shares,
then the Conversion Shares shall be issued free of all legends. The Company agrees that following such time as any of the Unrestricted
Conditions is met or such legend is otherwise no longer required under this Section 3(e), it will, no later than two
(2) Trading Days (or if earlier, the number of Trading Days comprising the then standard settlement period for U.S. broker-dealer
securities transactions) following the delivery (the “Unlegended Shares Delivery Deadline”) by the Holder to
the Company or the Transfer Agent of any certificate representing Conversion Shares, as applicable, issued with a restrictive
legend (such fourth Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Holder
a certificate (or electronic transfer) representing such Shares that is free from all restrictive and other legends. The Company
shall assume (and the Holder shall be deemed to represent) that the Holder is not an affiliate of the Company, unless the Holder
has otherwise advised the Company in writing.


 


(iii)          Sale
of Unlegended Shares. Holder agrees that the removal of the restrictive legend from any certificates representing securities
as set forth in Section 3(e)(i) above is predicated upon the Company’s reliance that the Holder will sell
any Conversion Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus
delivery requirements, or an exemption therefrom, and that if such securities are sold pursuant to a Registration Statement, they
will be sold in compliance with the plan of distribution set forth therein.


 


(f)            Reservation
of Shares. The Company shall at all times reserve and keep available out of its authorized but unissued Shares solely for the
purpose of effecting Conversions of this Note, such number of Shares as shall from time to time be sufficient to effect the conversion
of the Note (without giving effect to the 9.985% Cap); and if at any time the number of authorized but unissued Shares shall not
be sufficient to effect the conversion of the entire Principal amount convertible under this Note, the Company will use its best
efforts to take such corporate action as may, in the opinion of counsel, be necessary to increase its authorized but unissued Shares
to such number of Shares as shall be sufficient for such purpose. The Company covenants and agrees that, upon any Conversion of
this Note, all Shares issuable upon such Conversion shall be duly and validly issued, fully paid and nonassessable and not subject
to preemptive rights, rights of first refusal or similar rights of any Person.


 


(g)           Limitations
on Conversion.


 


(i)             Beneficial
Ownership Limitation. Notwithstanding anything herein to the contrary, the Company shall not be required to issue to the Holder,
and the Holder may not acquire, a number of Shares upon Conversion or otherwise issue any Shares pursuant hereto to the extent
that, upon such Conversion, the number of Shares then beneficially owned by the Holder and any other Persons or entities whose
beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the
Exchange Act (including Shares held by any “group” of which the Holder is a member, but excluding Shares beneficially
owned by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise
or purchase similar to the limitation set forth herein) would exceed 9.985% of the total number of Shares then issued and outstanding
(the “9.985% Cap”); provided, however, that the 9.985% Cap shall only apply to the extent that the Common Stock
is deemed to constitute an “equity security” pursuant to Rule 13d-1(i) promulgated under the Exchange Act.
For purposes hereof (including the representation contemplated by the second paragraph of this Section 3(g)(i)), “group”
has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the SEC, and the percentage
held by the Holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act.
For purposes hereof (including the representation contemplated by the second paragraph of this Section 3(g)(i)), in
determining the number of outstanding Shares, the Holder may rely on the number of outstanding Shares as stated in the Company’s
most recent quarterly or annual report filed with the SEC, or any current report filed by the Corporation with the SEC subsequent
thereto. Upon the written request of the Holder, the Company shall, within two (2) Trading Days, confirm orally and in writing
to the Holder the number of Shares then outstanding, and the Holder shall be entitled to rely upon such confirmation for purposes
hereof (including the representation contemplated by the second paragraph of this Section 3(g)(i)).


 


Delivery of a Conversion Notice by the
Holder shall constitute a representation by the Holder that the issuance of Common Stock in accordance with such Conversion Notice
will not cause the Holder (together with any other Person whose beneficial ownership of Common Stock would be aggregated with such
Holder’s for purposes of Section 13(d) of the Exchange Act and the applicable regulations of the SEC) to beneficially
own a number of Shares in excess of the 9.985% Cap, as determined in accordance with, and subject to the terms, conditions, qualifications
and assumptions set forth in, the immediately preceding paragraph.


 


(ii)            Principal
Market Regulation. The Company shall not be required to issue any Shares upon a Conversion if the issuance of such Shares
together with any previous issuances of Shares pursuant to this Note by the Holder hereof would exceed [__________]1
Shares, subject to appropriate adjustment for any Stock Event that occurs after the date hereof (the “Exchange
Cap”). Upon any conversion of this Note, the Company shall issue the maximum amount of the number of Shares set forth
in the applicable Conversion Notice that may be issued without exceeding the Exchange Cap. For the avoidance of doubt, to the
extent the conversion of any Principal and Interest of this Note pursuant to any Conversion Notice in respect of a Conversion
would have resulted in an issuance of Shares in excess of the Exchange Cap, such Principal and Interest shall not be converted
(the Company having no obligation to net cash settle such conversion), and such Principal shall remain outstanding and shall be
repaid in cash in accordance with the terms of this Note. Alternatively, at the option of the Holder, the Conversion Price will
be increased to [__________] for the portion of the Conversion that would result in an issuance of Shares in excess of the Exchange
Cap 2 .


 


4.             Voting
Rights. Except as required by law, the Holder shall have no voting rights with respect to any of the Conversion Shares until
the Conversion Date relating to the conversion of this Note upon which such Conversion Shares are issuable (or in the case of Conversion
Shares the issuance of which is subject to a bona fide dispute that is subject to and being resolved pursuant to, and in
compliance with the time periods and other provisions of, the dispute resolution provisions of Section 3(c)(iii), the
first Business Day after the resolution of such bona fide dispute).


 


5.             Events
of Default. Subject to the provisions set forth in the Subordination Agreements, the Principal of this Note, together with
all Interest accrued and unpaid thereon, shall at the option of the Holder become immediately due and payable if any one or more
of the following events (an “Event of Default”) shall have occurred and be continuing: (i) the Company’s
failure to pay any amount due on this Note when due; or (ii) any Act of Bankruptcy shall occur with respect to the Company.


 





 






1 This will be 19.9% of the Company’s
outstanding common stock.


2 This will be the closing price required
by Nasdaq for this portion to not be considered sold at a discount. To discuss if this will work for Nasdaq.


 






    


     


    

 


6.             Acceleration;
Due on Sale. Subject to the provisions of the Subordination Agreements in the event of: (i) a Change of Control or (ii) an
Event of Default, Holder may, by written notice to the Company, declare all amounts owing under this Note to be due and payable
forthwith, whereupon the same shall immediately become due and payable.


 


7.             Amendment;
Waiver. The terms and provisions of this Note shall not be amended or waived except in a writing signed by the Company and
the Holder.


 


8.             Remedies,
Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Note shall be cumulative
and in addition to all other remedies available under this Note, the Merger Agreement, at law or in equity (including a decree
of specific performance and/or other injunctive relief). No remedy contained herein shall be deemed a waiver of compliance with
the provisions giving rise to such remedy, and nothing herein shall limit the Holder’s right to pursue actual damages for
any failure by the Company to comply with the terms of this Note. The Company covenants to the Holder that there shall be no characterization
concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments,
conversion and the like (and the computation thereof) shall be the amounts to be received by the Holder thereof and shall not,
except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company
acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at
law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach,
the Holder shall be entitled, in addition to all other available remedies (at law or in equity), to an injunction restraining any
breach, without the necessity of showing economic loss and without any bond or other security being required.


 


9.             Specific
Shall Not Limit General; Construction. No specific provision contained in this Note shall limit or modify any more general
provision contained herein. This Note shall be deemed to be jointly drafted by the Company and Holder and shall not be construed
against any Person as the drafter hereof.


 


10.           Failure
or Indulgence Not Waiver. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege.


 


11.           Notices.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be provided in accordance with
the notice provisions in the Merger Agreement.


 






    


     


    

 


12.           Restrictions
on Transfer.


 


(a)            Registration
or Exemption Required. This Note has been issued in a transaction exempt from the registration requirements of the Securities
Act. None of the Note or the Conversion Shares may be transferred, sold, assigned, hypothecated or otherwise disposed of except
pursuant to an effective registration statement or an exemption to the registration requirements of the Securities Act and applicable
state securities laws including, without limitation, pursuant to Section 4(a)(7) of the Securities Act, Rule 144
under the Securities Act or a so-called “4[(a)](1) and a half” transaction.


 


(b)           Assignment.
The Holder may not sell, transfer, assign, pledge, hypothecate or otherwise dispose of this Note, in whole or in part without the
express prior written consent of the Company and any such purported sale, transfer, assignment, pledge, hypothecation or other
disposition shall be void ab initio; provided, however, following the termination of the Merger Agreement, the Company shall
not unreasonably withhold, condition or delay such consent. No assignment of this Note shall be effective unless effected by the
Company (including by making appropriate notation of such transfer on the Register). This Note and the rights evidenced hereby
shall inure to the benefit of and be binding upon the successors and expressly permitted assigns of the Holder.


 


(c)            Registered
Note. This Note may be transferred only upon notation of such transfer on the Register, which the Company shall promptly endeavor
to do upon any transfer otherwise permitted hereunder, and no assignment thereof shall be effective until recorded therein.


 


13.           Payment
of Collection, Enforcement and Other Costs. If (a) this Note is placed in the hands of an attorney for collection or enforcement
or is collected or enforced through any legal proceeding; or (b) an attorney is retained to represent the Holder in any bankruptcy,
reorganization, receivership of the Company or other proceedings affecting Company creditors’ rights and involving a claim
under this Note, then the Company shall pay the costs incurred by the Holder for such collection, enforcement or action, including
reasonable attorneys’ fees and disbursements.


 


14.           Cancellation.
After all Principal, Interest and other amounts at any time owed under, or on account of, this Note have been paid in full
or converted into Shares in accordance with the terms hereof, this Note shall automatically be deemed cancelled, shall be surrendered
to the Company for cancellation and shall not be reissued. Notwithstanding anything in this Note to the contrary, this Note shall
automatically, and without any action on the part of either the Company or the Holder, be deemed to be paid in full and cancelled
effective as of the Effective Time (as defined in the Merger Agreement).


 


15.           Waiver
of Notice. To the extent permitted by law, the Company hereby waives demand, notice, presentment, protest and all other demands
and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Merger Agreement.


 






    


     


    

 


16.           Governing
Law. This Note shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed in such State. All legal proceedings concerning the interpretation and enforcement of this
Note shall be brought and determined in the Court of Chancery of the State of Delaware; provided, that if jurisdiction is
not then available in the Court of Chancery of the State of Delaware, then any such proceeding may be brought in any federal court
located in the State of Delaware or any other Delaware state court. The Company hereby and each Holder (by its acceptance of this
Note) irrevocably submits to the exclusive jurisdiction of such courts for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action
or other proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action
or other proceeding is improper or is an inconvenient venue for such proceeding. The Company hereby and each Holder (by its acceptance
of this Note) irrevocably waives personal service of process and consents to process being served in any such suit, action or other
proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such
Person at the address in effect for notices to it under the Merger Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to
serve process in any other manner permitted by law. EACH OF THE COMPANY AND THE HOLDER (BY ACCEPTANCE HEREOF) IRREVOCABLY WAIVES
THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT TO ENFORCE ANY PROVISION OF THIS NOTE OR ANY OTHER TRANSACTION
DOCUMENT. THIS WAIVER APPLIES TO ANY ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE. EACH OF THE COMPANY
AND THE HOLDER (BY ITS ACCEPTANCE HEREOF (A) CERTIFIES THAT NO OTHER PARTY AND NO AGENT, REPRESENTATIVE OR OTHER PERSON AFFILIATED
WITH OR RELATED TO ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16.


 


17.           Interpretative
Matters. Unless the context otherwise requires, (a) all references to Sections or Exhibits are to Sections or Exhibits
contained in or attached to this Note, (b) each accounting term not otherwise defined in this Note has the meaning assigned
to it in accordance with generally accepted accounting principles, (c) words in the singular or plural include the singular
and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and
neuter and (d) the use of the word “including” in this Note shall be by way of example rather than limitation.
If a stock split, stock dividend, stock combination or other similar event occurs during any period over which an average price
is being determined, then an appropriate adjustment will be made to such average to reflect such event.


 


18.           Execution.
A facsimile, telecopy, PDF or other reproduction of this Note may be delivered by the Company, and an executed copy of this Note
may be delivered by the Company by facsimile, e-mail or other similar electronic transmission device pursuant to which the signature
of or on behalf of the Company can be seen, and such execution and delivery shall be considered valid, binding and effective for
all purposes. The Company hereby agrees that it shall not raise the execution of facsimile, PDF or other reproduction of this Note,
or the fact that any signature was transmitted by facsimile, e-mail or other similar electronic transmission device, as a defense
to the Company’s execution of this Note. Notwithstanding the foregoing, the Company shall be required to deliver an originally
executed Note to the Holder.


 


[Signature page follows]


 






    


     


    

 


IN WITNESS WHEREOF,
the Company has caused this Note to be duly executed as of the date first set forth above.


 


	 	COMPANY:
	 	 
	 	NEOS THERAPEUTICS, INC.
	 	 
	 	By:	                                           
	 	Name:	 
	 	Title:	 







 






    


     


    

 


	Accepted and agreed:	 
	 	 
	Holder:	 
	 	 
	Aytu Bioscience, Inc.	 
	 	 
	By: 	                           	 
	Name: 	 	 
	Title:	 	 




 






    


     


    

 





Exhibit A


 


CONVERSION NOTICE


 


Notice Date: ________


 


Reference is made to
the Unsecured Subordinated Convertible Promissory Note, dated December [__], 2020 (the “Note”) of NEOS
THERAPEUTICS, INC., a Delaware corporation (the “Company”), in the original principal amount of up to $5,000,000.00;
capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Note. In accordance with and pursuant
to the Note, the undersigned hereby elects to convert the Conversion Amount indicated below, which is 100% of the Principal as
of the Notice Date set forth above, into shares of common stock, par value $0.001 per share (the “Common Stock”),
of the Company, as of the date specified below.


 


Date of Conversion:                         


 


Amount of Principal
to be converted:                                                                                   


 


Please confirm the following information:


 


Conversion Price:                                           


 


Number of shares of
Common Stock to be issued:                                                             


 


Please issue the Common Stock into which
the Note is being converted in the following name and, if physical certificates are applicable, to the following address:


 


Issue to:                                                                                                                                      


 


	DTC Participant Number and Name:	 




 


	Account Number:	 




 









    


     


    

 


Exhibit B


 


Reg Rights Side Letter


 


[see attached]