Exhibit 10.1


 





EARLY payment
AGREEMENT and escrow instruction


 


This EARLY PAYMENT AGREEMENT AND ESCROW
INSTRUCTION (this “Agreement”) dated as of May 29, 2020 is by and among Armistice Capital Master Fund, Ltd.
(“Armistice”), Aytu BioScience, Inc. (“Aytu”) and James Flynn, Peter Steelman and Deerfield
CSF, LLC (collectively, the “Deerfield Parties”).


 


WHEREAS, the Deerfield Parties, Armistice,
Aytu, Aytu Therapeutics LLC, Avadel U.S. Holdings, Inc. and its subsidiaries and affiliates (collectively, “Avadel”)
and Cerecor Inc. (“Cerecor”), are parties to that certain Consent and Limited Waiver Agreement dated as of November
1, 2019 (the “Waiver”);


 


WHEREAS, Armistice previously deposited
$15,000,000 (the “Escrow Funds”) in an escrow account (the “Escrow Account”) governed by
that certain Escrow Agreement dated as of November 1, 2019 (the “Escrow Agreement"), by and among Armistice,
the Deerfield Parties and JPMorgan Chase Bank, N.A (the “Escrow Agent”), for the purpose of securing a portion of Armistice’s obligations under the Armistice
Guarantee, to guarantee the balloon payment of $15,000,000 due to the Deerfield Parties by Aytu on the last business day of January
2021 or earlier in accordance with Section 1.6(g) of the Deerfield Agreement (the “Balloon Payment Obligation”);
and


 


WHEREAS, Aytu desires to transfer the sum
of $15,000,000 to the Deerfield Parties in early satisfaction of the Balloon Payment Obligation.


 


In consideration of the foregoing premises
and the respective representations, warranties, covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:


 


1. Capitalized terms used herein (including
in the preamble and recitals above) but not otherwise defined herein have the meanings ascribed to them in the Waiver.


 


2. In full satisfaction of the Balloon
Payment Obligation, Aytu has paid to the Deerfield Parties, by wire transfers in immediately available funds, an aggregate amount
equal to $15,000,000, pursuant to the wire instructions set forth below:


 


$14,720,600.96


Deerfield CSF, LLC


Name of Bank: 


ABA Number: 


Beneficiary: 


Account Number:


 


$256,220.38


James Flynn


Bank: 


ABA Number: 


Beneficiary: 


Account Number: 


 






    


     


    

 


$23,178.66


Peter W. Steelman TTEE and Sara H. Steelman TTEE


Bank of America


ABA 


Account 





Reference: 


 


3. The Deerfield Parties, jointly and
severally, hereby acknowledge receipt and payment in full of the Balloon Payment Obligation. All parties to this Agreement acknowledge
and agree that the remaining fixed payments set forth on Schedule I of the Waiver other than the Balloon Payment Obligation remain
due and payable pursuant to the terms of the Waiver, and that nothing in his Agreement alters, amends, or waives any provisions
or obligations in the Waiver or the Deerfield Agreement other than as expressly set forth herein.


 


4. Upon receipt of the payments set
forth in Section 2 of this Agreement, the Deerfield Parties and Armistice shall deliver to the Escrow Agent the Joint Written Instruction
described in the Escrow Agreement and attached hereto as Exhibit A.


 


5. As between Armistice and Aytu as
additional consideration for the early payment of the Balloon Payment Obligation and the resulting release of the Escrow Funds,
Armistice hereby agrees (i) to pay to Aytu, in immediately available funds, an amount equal to $200,000 and (ii) to reimburse Aytu
for all reasonable out–of-pocket legal expenses and fees incurred in connection with this Agreement and the transactions
contemplated hereby. The amount referenced in (i) above will be paid via wire transfer on the date hereof to the below wire instructions.
The reimbursement described in (ii) shall be made at the same time and in the same manner as the amount in (i) to the extent calculable
at such time, with the remainder to be made within 30 days of a request describing the remaining amount to be reimbursed.


 


“Aytu BioScience, Inc.:

Bank Name: 

Bank Address: 

ABA Number: 

Credit A/C Name: 

Credit A/C #: ”


 






    2


     


    

 


6. Each party to this Agreement agrees
to execute and deliver, or cause to be executed and delivered, and to make or cause to be done or made, upon the reasonable written
request of any other party to this Agreement, any and all instruments, acts or things, as may be reasonably requested by any other
party for the purpose of, or in connection with early payment of the Balloon Payment Obligation and the release of the Escrow Funds.


 


7. This Agreement will be governed
by, and construed in accordance with, the laws of the State of New York.


 


8. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed will be deemed
to be an original but all of which taken together will constitute one and the same agreement. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy or by electronic delivery in Adobe Portable Document Format or other electronic
format based on common standards will be effective as delivery of a manually executed counterpart of this Agreement.


 


(Signature Page Follows)


 




    3


     


    

 


The parties hereto have caused this Assignment
and Assumption Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.


 


ARMISTICE:


 


Armistice Capital Master Fund, Ltd.


  


	By:	/s/ Steven Boyd	 
	Name:	Steven Boyd	 
	Title:	Director	 


 


AYTU:


 


Aytu BioScience, Inc.


 





	By:	/s/ Josh Disbrow	 
	Name:	Josh Disbrow	 
	Title:	Chief Executive Officer	 








 





[Signature Page to Early Payment Agreement and
Escrow Instruction]




 




    


     


    

 





	DEERFIELD PARTIES:	Deerfield CSF, LLC
	 	 	 
	 	 	 
	 	By:	/s/ David J. Clark
	 	Name: 	David J. Clark
	 	Title:	Manager
	 	 	 
	 	/s/ Peter Steelman
	 	Peter Steelman
	 	 	 
	 	/s/ James Flynn
	 	James Flynn







  





[Signature Page to Early Payment Agreement and
Escrow Instruction]




 




     


     


    

 


Exhibit A


 


Escrow Release Notice – Joint Instructions


 


See attached.


 






     


     


    

 





Escrow Release Notice – Joint Instructions



 


JPMorgan Chase Bank, N.A., Escrow Services


Escrow Services


4 New York Plaza, Floor 11


New York, NY 10004


Attention: Renfred Pico / Donna Fitzsimmons


Fax No.: 212-552-2812


Email Address: ec.escrow@jpmorgan.com


 


Date: May 29, 2020


 


Re: Armistice Capital Master Fund LTD (“Armistice”),
James Flynn, Peter Steelman and Deerfield CSF, LLC (collectively, “Deerfield”) – Escrow Agreement dated November
1, 2019


Escrow Account no.


 


Dear Sir/Madam:


 


We refer to an escrow agreement dated November 1, 2019, among Armistice,
Deerfield and JPMorgan Chase Bank, N.A., as Escrow Agent (the “Escrow
Agreement”).


 


Capitalized terms in this letter that are not otherwise defined
shall have the same meaning given to them in the Escrow Agreement.


 


Pursuant to Section 3 of the Escrow Agreement, the Parties instruct
Escrow Agent to release the Fund, or the portion specified below, to the specified Party as instructed below.


 


Amount: $15,000,000


(In writing): Fifteen Million and no/100 Dollars


Beneficiary: Armistice Capital Master Fund LTD


City: New York, NY


Country: USA


 


US Instructions:


ABA: 


Swift Address: 


Beneficiary: A/C No: 


A/C Name: 


Swift Address: 


 




     


     


    

  


	Armistice Capital Master Fund, Ltd.	 
	 	 	 
	By:	/s/ Steven Boyd	 
	Name: 	Steven Boyd	 
	Title:	Director	 
	 	 	 
	Deerfield CSF, LLC	 
	 	 
	By:	/s/ David J. Clark	 
	Name: 	David J. Clark	 
	Title:	 	 
	 	 	 
	/s/ Peter Steelman	 
	Peter Steelman	 
	 	 	 
	/s/ James Flynn	 
	James Flynn