Exhibit 10.8


 


Execution
Version


 


 


 


LIMITED WAIVER TO LOAN AND SECURITY AGREEMENT


 


December 10, 2020


 


Via email


 


Neos Therapeutics, Inc.

2940 N. Hwy 360, Suite 400

Grand Prairie, Texas 75050

Attention: Richard Eisenstadt

Email: reisenstadt@neostx.com


 


		RE:	Loan and Security Agreement (as amended, restated or otherwise modified, the "Loan Agreement")
dated as of October 2, 2019, by and among NEOS THERAPEUTICS, INC., a Delaware corporation ("Company"),
NEOS THERAPEUTICS BRANDS, LLC, a Delaware limited liability company ("NT Brands"), NEOS THERAPEUTICS, LP, a Texas
limited partnership ("NT LP"; together with Company and NT Brands, each a "Borrower" and collectively
the "Borrowers"), NEOS THERAPEUTICS COMMERCIAL, LLC, a Delaware limited liability company ("NT Commercial"),
and PHARMAFAB TEXAS, LLC, a Texas limited liability company ("NT PharmaFab" together with NT Commercial each a
Loan Party Obligor and collectively, the “Loan Party Obligors”), the Lenders party hereto from time to time
and ENCINA BUSINESS CREDIT, LLC, as agent for the Lenders (in such capacity, "Agent").



 


Ladies & Gentlemen:


 


Capitalized terms used
in this Limited Waiver to Loan and Security Agreement (this "Waiver") but not defined herein shall have the meanings
assigned to them in the Loan Agreement. This Waiver is a Loan Document.


 


Subject to the terms
and conditions set forth below, Agent hereby irrevocably waives all breaches, Defaults and Events of Default under Section 7.15(a) of
the Loan Agreement solely to the extent resulting from the inclusion of a "going concern" qualification in the audited
financial statements of the Borrowers and Loan Party Obligors on a consolidated basis for the fiscal year ending December 31,
2020. The waiver in the preceding sentence shall terminate and be of no further force and effect upon the termination of that certain
Commitment Letter dated as of the date hereof by and among Borrower Representative, Aytu Biosciences, Inc., Agent and sole
Lender (the "Encina Commitment Letter") in accordance with its terms.


 






    


     


    

 


The foregoing is a
limited waiver and, except as expressly set forth in this Waiver, the foregoing limited waiver shall not constitute (a) a
modification or alteration of the terms, conditions or covenants of the Loan Agreement or any other Loan Document, or (b) a
waiver, release or limitation upon the exercise by Agent or any Lender of any of its rights, legal or equitable, thereunder.


 


Each Loan Party Obligor
hereby represents, warrants and covenants to Agent that:


 


		a.	Each Loan Party Obligor is validly existing as a corporation, limited liability company or limited
partnership, as applicable, and is in good standing under the laws of the jurisdiction of its incorporation, organization or formation,
as applicable. Each Loan Party Obligor (i) has full power and authority (and all governmental licenses, authorizations, permits
(including all Health Care Permits and other Permits), consents and approvals) to (A) own its properties and conduct its business
and (B) to (x) enter into, and perform its obligations under, this Waiver and the other Loan Documents and (y) consummate
the transactions contemplated under this Waiver and the other Loan Documents, and (ii) is duly qualified as a foreign corporation,
limited liability company or limited partnership, as applicable, and licensed and in good standing, under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its business requires such qualification or license, in each
case of this clause (ii), where the failure to be so qualified, licensed or in good standing could reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Effect;



 


		b.	The execution, delivery and performance of this Waiver and the other Loan Documents, in each case,
have been duly authorized by each Loan Party Obligor, and no further consent or authorization is required by any Loan Party Obligor,
any Loan Party Obligor’s board of directors (or other equivalent governing body) or the holders of any Loan Party Obligor’s
Stock;



 


		c.	Immediately after giving effect to this Waiver, the representations and warranties of the Loan
Party Obligors contained in the Loan Documents shall, in each case, be true, correct and complete in all material respects (without
duplication of any materiality provision contained therein) on and as of the date hereof (or any earlier date with respect to which
any such representation or warranty relates); and



 


		d.	Immediately after giving effect to this Waiver (including Section 2 hereof), no Default or
Event of Default shall have occurred and be continuing.



 


This Waiver may be
executed in several counterparts, and by each party hereto on separate counterparts, each of which and any photocopies, facsimile
copies and other electronic methods of transmission thereof shall be deemed an original, but all of which together shall constitute
one and the same agreement.


 


This Waiver is made
solely for the benefit of Borrowers and Loan Party Obligors and no other Person may rely on or have shall have any right, benefit
or interest under or because of this Waiver.


 


Each Borrower and each
other Loan Party Obligor hereby reaffirms its obligations under each Loan Document to which it is a party, as each may have been
amended on or prior to the date hereof (the "Reaffirmed Agreements"). Each Borrower and each other Loan Party
Obligor hereby further agrees that each Reaffirmed Agreement to which it is a party shall remain in full force and effect following
the execution and delivery of this Waiver and that all references in any of the Reaffirmed Agreements to which it is a party to
the "Loan Agreement" shall be deemed to refer to the Loan Agreement, as supplemented by this Waiver and as amended or
modified from time to time hereafter. Except as expressly set forth herein, each of the Reaffirmed Agreements shall remain unmodified
and in full force and effect.


 






    -2-


     


    

 


Each Borrower and each
other Loan Party Obligor on behalf of itself and its successors, assigns, heirs and other legal representatives, hereby absolutely,
unconditionally and irrevocably releases, remises and forever discharges Agent and each Lender and any and all Participants and
Affiliates, and their respective successors and assigns, and their respective directors, members, managers, officers, employees,
attorneys and agents, including without limitation each Agent-Related Person, and any other Person affiliated with or representing
Agent or any Lender (collectively, the "Released Parties") of and from any and all liability, including all actual
or potential claims, demands or causes of action of any kind, nature or description whatsoever, whether arising in law or equity
or under contract or tort or under any state or federal law or otherwise, which any Borrower or any Loan Party or any of their
successors, assigns or other legal representatives has had, now has or has made claim to have against any of the Released Parties
for or by reason of any act, omission, matter, cause or thing whatsoever, including any liability arising from acts or omissions
pertaining to the transactions contemplated by this Waiver, whether based on errors of judgment or mistake of law or fact, from
the beginning of time to and including the date hereof, whether such claims, demands and causes of action are matured or known
or unknown.


 


Each Borrower and each
other Loan Party Obligor expressly acknowledges and agrees that Section 10.3 (Indemnity) and Section 15.7 (Expenses,
Fee and Cost Reimbursement) of the Loan Agreement apply to this letter agreement and the transactions contemplated hereby.


 


THIS WAIVER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
THEREIN WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. FURTHER, THE LAW OF THE STATE OF NEW YORK SHALL APPLY TO ALL DISPUTES OR
CONTROVERSIES ARISING OUT OF OR CONNECTED TO OR WITH THIS WAIVER WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.


 


[signature pages follow]


 






    -3-


     


    

 


	 	Encina Business Credit, LLC,
	 	as Agent
	 	 
	 	By:	/s/ John D. Whetstone
	 	Name:	John D. Whetstone
	 	Title:	EVP
	 	 
	 	 
	 	Encina Business Credit SPV, LLC,
	 	as sole Lender
	 	 
	 	By:	/s/ John D. Whetstone
	 	Name:	John D. Whetstone
	 	Title:	EVP




 


Signature Page to
Limited Waiver


 






    


     


    

 


	 	AGREED TO :
	 	 
	 	 
	 	Borrowers:
	 	 
	 	NEOS THERAPEUTICS, INC.
	 	 
	 	 
	 	By:	/s/ Richard Eisenstadt
	 	Name:	Richard Eisenstadt
	 	Its:	Chief Financial Officer
	 	 
	 	NEOS THERAPEUTICS BRANDS, LLC  
	 	 
	 	 
	 	By:	/s/ Richard Eisenstadt
	 	Name:	Richard Eisenstadt
	 	Its:	Chief Financial Officer
	 	 
	 	NEOS THERAPEUTICS, LP  
	 	 
	 	 
	 	By:	/s/ Richard Eisenstadt
	 	Name:	Richard Eisenstadt
	 	Its:	Chief Financial Officer
	 	 
	 	Loan Party Obligors:
	 	 
	 	NEOS THERAPEUTICS COMMERCIAL, LLC  
	 	 
	 	 
	 	By:	/s/ Richard Eisenstadt
	 	Name:	Richard Eisenstadt
	 	Its:	Chief Financial Officer
	 	 
	 	NEOS THERAPEUTICS, LP  
	 	 
	 	 
	 	By:	/s/ Richard Eisenstadt
	 	Name:	Richard Eisenstadt
	 	Its:	Chief Financial Officer
	 	 



 


Signature Page to
Limited Waiver


 






    


     


    

 


	 	PHARMAFAB TEXAS, LLC  
	 	 
	 	 
	 	By:	/s/ Richard Eisenstadt
	 	Name:	Richard Eisenstadt
	 	Its:	Chief Financial Officer





 


Signature Page to
Limited Waiver