Exhibit 10.3


  


December 10, 2020


Neos Therapeutics, Inc.


2940 N. Highway 360


Grand Prairie, TX 75050


Attention: John Limongelli


 


Re: Acquisition of Neos Therapeutics, Inc.


 


Ladies and Gentlemen:


 


Reference is made to the Agreement and
Plan of Merger, dated as of the date hereof (the “Merger Agreement”), by and among Aytu Biosciences, Inc.,
a Delaware corporation (“Aytu”), Argon Merger Sub, Inc., a Delaware corporation, and Neos Therapeutics, Inc.,
a Delaware corporation (the “Company”), pursuant to which Acquisition Sub, or its permitted assignees, will
be merged with and into the Company (the “Merger”). This letter agreement is being entered between Aytu and
the Company to describe their agreement relating to a potential financing prior to the completion of the Merger. Capitalized terms
used but not defined herein have the meanings ascribed to them in the Merger Agreement and, if not therein defined, as defined
in the unsecured convertible note issued pursuant to the terms of the Merger Agreement by the Company to Aytu (the “Convertible
Note”), the form of which is attached to this letter agreement (this “Agreement”) as Exhibit A.


 


1.            Commitment.
Aytu and the Company hereby commit, subject to (a) the terms and conditions set forth herein and (b) receipt of approval
from The Nasdaq Stock Market (“Nasdaq”) with respect to the Convertible Note and the transactions contemplated
thereby, that, promptly following the date hereof, they will in good faith prepare, negotiate and enter into (i) the Convertible
Note and (ii) a registration rights agreement (the “Registration Rights Agreement”) on substantially the
terms set forth in Sections 2 and 3 below (the “Commitment”).


 


2.            Registration
Rights Agreement. The Conversion Shares will be issued as a private placement of the securities. The Company shall agree to
prepare and file a resale registration statement (“Registration Statement”) registering the resale of all the
Conversion Shares, which Registration Statement shall be filed within 30 days from the termination of the Merger Agreement for
any reason. The Company shall use best efforts cause the Registration Statement to be declared effective by the Securities and
Exchange Commission within 75 days following the filing of the Registration Statement (the “Effectiveness Deadline”).
If the Registration Statement is not declared effective by the Effectiveness Deadline, the Company will pay to Aytu an additional
amount of common stock of the Company (“Common Stock”), or cash if the issuance of Common Stock is not permitted
under the rules of Nasdaq, equal to 3% of the Common Stock covered on the Registration Statement for each 30-day period that
the Registration Statement is not declared effective after the Effectiveness Deadline. In addition, if the Registration Statement
is not effective or available to use prior to such time as Aytu can sell all of the Common Stock covered by the Registration Statement
pursuant to Rule 144 without regard to volume limitations, the Company will pay to Aytu an additional amount of Common Stock,
or cash if the issuance of Common Stock is not permitted under the rules of Nasdaq, equal to 3% of the remaining unsold amount
of the Common Stock covered on the Registration Statement for each 30-day period that the Registration Statement is not available
to use.


 






     


     


    




 


3.            Other
Covenants. The Registration Rights Agreement shall include a covenant that the Company shall not issue any equity or securities
convertible into equity from the date the Convertible Note is issued (the “Note Issuance Date”) until 30 days
after the date the Registration Statement is declared effective except for (i) the issuance by the Company of shares upon
the exercise of a stock option or warrant or the conversion of a security outstanding on the Note Issuance Date (including, for
the avoidance of doubt, convertible notes issued by the Company to its senior lenders), or (ii) the issuance by the Company
of stock options, restricted stock units or shares of capital stock of the Company under any equity compensation plan of the Company.


 


4.            Enforceability.
This Agreement may only be enforced by Aytu and the Company. Notwithstanding anything to the contrary in this letter agreement,
the Company’s creditors shall have no right to enforce this letter agreement or to cause the Company to enforce this letter
agreement and none of the Company's equity holders or creditors shall have any right to enforce or cause the Company to enforce
this letter agreement.


 


5.            Termination.
This Agreement will terminate automatically at the earlier to occur of (i) the Effective Time and (ii) the first date
on which Aytu’s commitment to make advances under the Convertible Note has been terminated and all amounts outstanding under
the Convertible Note have been paid in full in cash.


 


6.            No
Modification; Entire Agreement. This Agreement may not be amended, modified or supplemented except by an agreement in writing
signed by the Company and Aytu. This Agreement, the Convertible Note and the Merger Agreement constitute the sole and entire agreement
of Aytu or any of its affiliates, on the one hand, and the Company or any of its affiliates, on the other, with respect to the
subject matter contained herein and in the Convertible Note, and supersedes all prior and contemporaneous understandings, agreements,
representations and warranties, both written and oral, with respect to such subject matter.


 


7.            Parties
in Interest; Third Party Beneficiaries. This Agreement is for the sole benefit of and shall be binding upon the Company and
Aytu and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall
confer upon any person other than the Company and Aytu any legal or equitable right, benefit or remedy of any nature whatsoever,
under or by reason of this Agreement.


 


8.            Governing
Law; Submission to Jurisdiction; Venue. This Agreement and all disputes or controversies arising out of or relating to this
Agreement or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal Laws of
the State of Delaware, without regard to the Laws of any other jurisdiction that might be applied because of the conflicts of Laws
principles of the State of Delaware.


 






     


     


    

 


Each of the parties
irrevocably agrees that any Action arising out of or relating to this Agreement brought by any party or its Affiliates against
any other party or its Affiliates 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 Action may be brought
in any federal court located in the State of Delaware or any other Delaware state court. Each of the parties hereby irrevocably
submits to the jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally,
with regard to any such Action arising out of or relating to this Agreement and the transactions contemplated hereby. Service of
process, summons, notice or other document in accordance with 9.2 of the Merger Agreement, with respect to Aytu and the Company
shall be effective service of process for any suit, action or other proceeding brought in any such court.


 


The parties irrevocably
and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in such courts and irrevocably
waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.


 


9.            Waiver
of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this letter is likely to involve
complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to
a trial by jury in respect of any legal action arising out of or relating to this letter or the transactions contemplated hereby.


 


10.            No
Assignment. The Commitment evidenced by this Agreement shall not be assignable by the Company or Aytu without the other party’s
prior written consent. No transfer of any rights or obligations hereunder by Aytu or the Company shall be permitted without the
consent of the other party. Any purported transfer or assignment of any portion of a party's rights or obligations hereunder in
contravention of this Section 11 shall be null and void ab initio.


 


11.            Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed
to be one and the same agreement. A signed copy of this letter delivered by facsimile, e-mail or other means of electronic transmission
shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.


 


[signature
page follows]


 






     


     


    







 


 


	 	Very truly yours,
	 	AYTU BIOSCIENCE, INC.
	 	 
	 	 
	 	By	/s/ Josh Disbrow
	 	Name:	Josh Disbrow
	 	Title:	Chief Executive Officer






 





	Agreed to and accepted:	 
	NEOS THERAPEUTICS, INC.	 
	 	 
	 	 
	By	/s/ Richard Eisenstadt	 
	Name:	Richard Eisenstadt	 
	Title:	Chief Financial Officer	 



 






     


     


    

 








EXHIBIT A


 


CONVERTIBLE NOTE


 


[see attached]