UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): ~~January~~February 118, 2021 (February 5, 2021)

NEOS THERAPEUTICS, INC.

(Exact name of registrant as specified in its charter)

Delaware

(State or other jurisdiction of incorporation)



001-37508		27-0395455
(Commission File No.)		(IRS Employer Identification No.)

2940 N. Highway 360

Grand Prairie, TX 75050

(Address of principal executive offices and zip code)

Registrant’s telephone number, including area code: (972) 408-1300

Not applicable

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

x☒ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) ¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) ¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:



Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common stock, par value $0.001 per share	NEOS	The Nasdaq Stock Market LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company x

~~If an~~Indicate ~~emerging growth company, indicate~~ by check mark ifwhether the registrant ~~has~~is ~~elected~~an ~~not~~emerging togrowth ~~use~~company ~~the~~as ~~extended~~defined ~~transition~~in ~~period~~Rule 405 ~~for complying~~of ~~with~~the ~~any~~Securities ~~new~~Act orof ~~revised~~1933 ~~financial~~(§230.405 ~~accounting~~of ~~standards~~this ~~provided~~chapter) ~~pursuant~~or ~~to Section~~Rule ~~13(a)~~ 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 xof this chapter). Emerging growth company ☐

~~Item~~If ~~7.01.~~an ~~Regulation~~emerging FDgrowth ~~Disclosure~~company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

On January 11, 2020, Neos Therapeutics, Inc. (“Neos”) made a presentation to current and prospective investors to discuss its business, including the proposed merger transaction pursuant to the terms of the Agreement and Plan of Merger, dated as of December 10, 2020, by and among Neos, Aytu Bioscience, Inc. (“Aytu”), and Neutron Acquisition Sub, Inc. (the “Merger Agreement”). A copy of the presentation and the portion of the script related to the proposed merger transaction are attached to this Current Report on Form 8-K as Exhibits 99.1 and 99.2 respectively.

In accordance with General Instruction B.2. of Form 8-K, the information contained in Item 7.01 and the exhibits attached hereto, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.

~~Additional Information about the Proposed Merger Transaction and Where to Find It~~

~~INVESTORS~~Item ~~ARE~~1.01 ~~URGED~~Entry TOinto ~~READ~~a ~~THE~~Material ~~JOINT~~Definitive ~~PROXY STATEMENT/PROSPECTUS AND OTHER RELEVANT DOCUMENTS FILED WITH THE SEC IF AND WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER TRANSACTION~~Agreement.

~~You~~As ~~may~~previously ~~obtain~~disclosed, on December 10, 2020, Aytu BioScience, Inc. (“Aytu”), Neutron Acquisition Sub, Inc., a ~~free~~wholly ~~copy~~owned subsidiary of Aytu and Neos Therapeutics, Inc. (the ~~joint~~“Company” ~~proxy~~or ~~statement/prospectus and~~“Neos”) ~~other~~entered ~~relevant~~into ~~documents~~an ~~(if~~Agreement and ~~when~~Plan ~~they~~of ~~become~~Merger ~~available~~(the “Merger Agreement”), ~~filed~~whereby byNeutron ~~Aytu~~Acquisition orSub, Inc. will merge with and into Neos, with Neos surviving as a wholly owned subsidiary of Aytu (the ~~SEC~~“Merger”). atCompletion of the ~~SEC’s~~Merger ~~website at~~is ~~www.sec.gov.~~anticipated ~~Copies~~to occur as early as the end of the ~~documents~~first ~~filed~~quarter of 2021 and remains subject to customary closing conditions, including the adoption of the Merger Agreement by ~~Aytu~~a ~~with~~majority of the ~~SEC~~holders ~~will~~of bethe ~~available~~outstanding ~~free~~shares of ~~charge~~Neos oncommon ~~Aytu’s~~stock ~~website~~and ~~at www.aytubio.com~~the orapproval byof ~~contacting~~the issuance of Aytu’s ~~Investor~~common ~~Relations~~stock atby ~~james@haydenir.com.~~a ~~Copies~~majority of the ~~documents~~votes ~~filed~~cast by ~~Neos~~Aytu ~~with~~ stockholders on the ~~SEC~~matter, ~~will~~and becertain ~~available~~other ~~free~~conditions. The details of ~~charge~~the onMerger ~~Neos~~and the Merger Agreement were previously disclosed in, and the Merger Agreement was filed with, the Company’s ~~website~~Form at8-K ~~www.~~filed ~~investors~~on December 11, 2020.~~neostx.com~~ Capitalized orterms bynot ~~contacting~~defined ~~Neos’~~herein ~~Investor Relations~~shall athave ~~(972)~~the ~~408-1300~~meanings ascribed to them in the Merger Agreement.

~~Certain~~In ~~Information~~connection ~~Regarding~~with ~~Participants~~the execution of the Merger Agreement, Neos concurrently entered into a commitment letter for an unsecured convertible note (the “Promissory Note”) for Aytu BioScience, Inc. (“Aytu”) to provide financing to Neos in an aggregate amount of up to $5,000,000, subject to receipt of approval from The Nasdaq Stock Market (“Nasdaq”) with respect to the convertible note and the transactions contemplated therein.

~~Neos~~Following ~~and~~receipt ~~Aytu~~of ~~and~~the ~~their~~aforementioned ~~respective~~approval ~~directors~~from Nasdaq, ~~executive~~on ~~officers and~~February ~~other~~8, ~~members~~2021, ofthe ~~management~~Company ~~and~~issued ~~employees~~the ~~may~~Promissory beNote ~~deemed~~ to beAytu ~~participants~~without inincurring ~~the~~any ~~solicitation~~indebtedness ofthereunder. ~~proxies~~If inindebtedness ~~respect~~is ofincurred, ~~the proposed~~interest ~~merger~~will ~~transaction.~~accrue ~~You~~on ~~can~~any ~~find~~principal ~~information~~amount ~~about~~outstanding ~~Neos’~~under ~~executive~~the ~~officers~~note ~~and~~at ~~directors~~a inrate ~~Neos’~~of ~~definitive proxy~~6.0% ~~statement~~per ~~filed~~annum, ~~with~~compounding ~~the~~monthly ~~SEC~~beginning onin ~~April~~February ~~21,~~2021. ~~2020~~If inan ~~connection~~event ~~with~~of ~~Neos’~~default ~~2020~~has ~~annual~~occurred ~~meeting~~and ofis ~~stockholders.~~continuing, ~~You~~the ~~can find~~interest ~~information~~rate ~~about~~then ~~Aytu’s~~in ~~executive~~effect ~~officers~~will ~~and~~be ~~directors~~increased inby ~~Aytu’s~~2.0% ~~definitive~~per ~~proxy~~annum, ~~statement~~and ~~filed~~all ~~with~~overdue ~~the SEC~~obligations onunder ~~March~~the 4,note ~~2020~~will inbear ~~connection~~interest ~~with~~at ~~Aytu’s~~the ~~2020~~interest ~~annual~~rate ~~meeting~~in ofeffect ~~stockholders.~~at ~~Additional~~such ~~information~~time ~~regarding~~plus the ~~interests~~ ofadditional ~~such~~2.0% ~~potential~~per ~~participants~~annum. ~~will~~Aytu’s berights ~~included~~under in the ~~joint~~note, ~~proxy~~including ~~statement/prospectus~~rights ~~and~~to ~~other~~payment, ~~relevant~~are ~~documents filed~~subordinated ~~with~~to the ~~SEC~~rights ifof ~~and~~Neos’s ~~when~~existing ~~they~~senior ~~become available~~lenders. ~~You~~The ~~may~~maturity ~~obtain~~date ~~free~~of ~~copies~~the ofnote ~~these~~is ~~documents~~the ~~from~~earlier ~~Neos~~of orthe ~~Aytu~~acceleration ~~using~~of the ~~sources~~ ~~indicated~~obligations ~~above~~evidenced thereby and November 7, 2022.

NoIf ~~Offer~~drawn down on, the convertible note will be cancelled in the event the Merger is consummated. If the Merger is not consummated and the Merger Agreement is terminated, at any time beginning 30 days following such termination, Aytu will have the right to elect to convert principal and accrued interest amounts outstanding under the note at a conversion price equal to the greater of $0.50 per Neos share or ~~Solicitation~~90% of Neos’ then current share price (calculated based on a volume weighted average price per share for the thirty (30) trading days immediately preceeding). Aytu’s ability to convert the note is subject to a customary exchange cap, under which no shares may be issued by Neos to the extent such issuance (together with all previous issuances under the note) would exceed 19.9% of Neos’s outstanding common stock as of the date the note is issued. Alternatively, at Aytu’s option, it may acquire shares in excess of such exchange cap if it elects to increase the conversion price with respect to any given conversion such that Nasdaq would deem such conversion price to be at least the Minimum Price for purposes of Nasdaq listing Rule 5635(d). In addition, Aytu may not acquire common stock upon conversion of the note to the extent such acquisition would result in Aytu’s beneficial ownership of Neos’s common stock exceeding 9.985% of Neos’s total outstanding shares of common stock at such time.

~~This~~The ~~communication~~issuance ~~does~~of ~~not~~the ~~constitute~~convertible annote ~~offer~~occurred, toand ~~sell, or~~the conversion of the ~~solicitation~~shares of anNeos’s ~~offer~~common tostock ~~buy,~~thereunder ~~any~~will ~~securities~~occur, ~~nor~~as a ~~solicitation~~private placement of ~~any~~securities. ~~vote~~As ora ~~approval~~result, ~~with respect to~~ the ~~proposed~~ ~~merger~~shares ~~transaction~~issuable orupon ~~otherwise.~~conversion ~~No offering~~ of ~~securities~~the ~~shall~~note may be ~~made~~restricted ~~except~~from byresale ~~means~~unless ofsuch ashares ~~prospectus~~have ~~meeting~~been ~~the requirements~~registered offor ~~Section 10~~resale ofunder the Securities Act of 1933, as amended (the “Securities Act”) ~~and~~or ~~otherwise~~an ~~in accordance~~exemption ~~with~~exists ~~applicable~~for ~~law~~such resale.

2 Concurrently with the issuance of the Promissory Note, on February 8, 2021, Neos and Aytu entered into a registration rights agreement (the “Registration Rights Agreement”) to register the resale of the conversion shares under the notes. Under the Registration Rights Agreement, within 30 days from the termination of the Merger Agreement for any reason, Neos will use best efforts to register the conversion shares for resale and cause such registration statement to be declared effective by the Securities and Exchange Commission (the “SEC”) within 75 days following the filing of such registration statement. If the registration statement is not declared effective by such deadline or its effectiveness not maintained, Neos will pay Aytu an additional amount of its common stock (or cash if such issuance of common stock is not permitted under Nasdaq rules) equal to 3% of the common stock covered under the registration statement for each 30-day period the registration statement is not declared effective after the deadline. In addition, if the registration

~~Cautionary Statement Regarding Forward-Looking Statements~~2

~~This~~statement ~~communication~~is ~~and other related materials contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and other federal securities laws, including, but~~ not ~~limited~~effective ~~to,~~or ~~statements~~available concerning: the expected timetable for completing the proposed merger transaction, the results, effects, benefits and synergies of the proposed merger transaction, future, opportunities for the combined company, future financial performance and condition, the executive and board structure of Aytu; the ability of Neos to ~~successfully~~use ~~commercialize~~prior ~~Adzenys XR-ODT®, Cotempla XR-ODT®, Adzenys ER® (the “Approved ADHD Products”) and its generic Tussionex®; its ability~~ to ~~successfully~~such ~~advance~~time ~~its~~that ~~pipeline~~Aytu ofcan ~~product~~sell ~~candidates,~~all ~~including licensed product candidates; its ability to maintain and protect its intellectual property; the outcome or success~~ of ~~its clinical trials;~~ the ~~rate~~common ~~and~~stock ~~degree~~covered ~~of market acceptance of its products; and its ability to develop sales and marketing capabilities. In some cases, you can identify forward-looking statements~~ by terms such as “may,” ”will,” “should,” “expect,” “plan,” “aim,” “anticipate,” “could,” “intend,” “target,” “project,” “contemplate,” “believe,” “estimate,” “predict,” “potential” or “continue” or the ~~negative~~ ofregistration ~~these~~statement ~~terms~~under orRule ~~other~~144 ~~similar expressions. The forward-looking statements of this communication are only predictions and are subject to a number of risks, uncertainties and assumptions, including,~~ without ~~limitation,~~regard ~~(i) the outcome of any legal proceedings that may be instituted against the companies related~~ to ~~the~~volume ~~proposed merger transaction; (ii) unanticipated difficulties or expenditures relating to the proposed merger transaction~~limitations, ~~the~~Neos ~~response~~will ofpay ~~business~~Aytu ~~partners~~an ~~and~~additional ~~competitors~~amount ~~to the announcement~~ of ~~the~~common ~~proposed~~stock ~~merger transaction, and/or potential difficulties in employee retention as a result of the announcement and pendency of the proposed merger transaction;~~ (iii) risks associated with the companies’ ability to obtain the stockholder approvals required to consummate the proposed merger transaction and the timing of the closing of the proposed merger transaction, including the risks that a condition to closing would not be satisfied within the expected timeframe or atcash ~~all~~if orsuch ~~that~~issuance ~~the~~common ~~closing of~~stock ~~the~~is ~~proposed merger transaction will~~ not ~~occur;~~permitted ~~(iv)~~under ~~the~~Nasdaq ~~impact of COVID-19 on prescriptions for the Neos’ products and on its business, revenues, results of operations and financial condition; (v~~rules) ~~Neos’~~equal ~~commercialization strategy for the Approved ADHD Products and other products that may be approved; (vi) the timing of any such approval; (vii) Neos’ ability~~ to ~~market and~~3% ~~sell the Approved ADHD Products and any other products that may be approved; (viii) Neos’ ability to successfully compete in the market for medications indicated for ADHD; (ix) the manufacture~~ of the ~~Approved~~remaining ~~ADHD~~unsold ~~Products~~amount ~~or Neos’ other product candidates; (x) the therapeutic potential~~ of ~~the~~common ~~Approved~~stock ~~ADHD~~covered ~~Products or Neos’ other product candidates; (xi) our ability to initiate and complete trials for NT0502; and (xii) other risks set forth~~ under the ~~caption~~registration ~~“Risk~~statement ~~Factors”~~for ineach ~~Neos’ most recent Annual Report on Form 10~~30-K,day asperiod ~~updated~~that bythe ~~Neos’~~registration ~~most~~statement ~~recent Quarterly Report on Form 10-Q, and its other SEC filings. Moreover, Neos operates in a very competitive and rapidly changing environment. New risks emerge from time to time. It~~ is not ~~possible~~available ~~for Neos management~~ to predict all risks, nor can Neos assess the impact of all factors on its business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements it may makeuse. InThe ~~light~~Registration ofRights ~~these~~Agreement ~~risks,~~also ~~uncertainties~~includes ~~and~~a ~~assumptions,~~covenant ~~the~~prohibiting ~~forward-looking~~Neos ~~events and circumstances discussed in this communication may not occur and actual results could differ materially and adversely~~ from ~~those anticipated~~issuing orequity implied in the forward-looking statements. You should not rely upon forward-looking statements as predictions of future events. Although Neos believes that the expectations reflected in the forward-looking statements are reasonable, it cannot guarantee that the future results, levels of activity, performance or ~~events~~convertible ~~and~~securities ~~circumstances~~from ~~reflected in~~ the ~~forward-looking statements~~date ~~will be achieved or occur. Moreover, except as required by law, neither Neos nor any other person assumes responsibility for~~ the ~~accuracy~~convertible ~~and~~note ~~completeness~~is ofissued ~~the~~until ~~forward-looking~~30 ~~statements.~~days ~~Forward-looking~~after ~~statements in this communication represent Neos’ views only as of~~ the date ofthe ~~this~~registration ~~communication. Neos undertakes no obligation to update or review any forward-looking~~ statement, ~~whether~~is asdeclared ~~a result of new information~~effective, ~~future~~subject ~~developments~~to orcertain ~~otherwise, except as required by law~~exceptions.

In addition, in the event that Neos draws down on the convertible note, the Exchange Ratio will be adjusted downward by an amount equal to 0.00011 for every $100,000 of bridge financing funded by Aytu under the convertible note.

The foregoing description of the Promissory Note and the Registration Rights Agreement is not complete and is qualified in its entirety by reference to the Promissory Note, which is filed as Exhibit 10.1 hereto, and the Registration Rights Agreement, which is filed as Exhibit 10.2 hereto, both of which are incorporated by reference into this Item 1.01.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The disclosure regarding the Promissory Note contained in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 2.03.

Item 3.01 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

As previously disclosed, on June 2, 2020, Neos received a letter (the “Letter”) from the Listing Qualifications Department (the “Staff”) of Nasdaq indicating that the closing bid price of the Company’s common stock had, for 30 consecutive business days preceding the date of the Letter, been below the $1.00 per share minimum required for continued listing on The Nasdaq Global Market under Nasdaq Listing Rule 5450(a)(1) (the “Minimum Bid Price Rule”). In accordance with Nasdaq Listing Rule 5810(c)(3)(A), the Company was provided until December 28, 2020 to regain compliance, reflecting a 180-day compliance period and any temporary relief periods afforded by Nasdaq pursuant to its April 16, 2020 announcement.

On December 29, 2020, Neos received a notice (the “Notice”) from the Listing Qualifications Department of Nasdaq stating that the Company had failed to regain compliance with the minimum $1.00 closing bid price required by the Minimum Bid Price Rule prior to December 28, 2020 as required by Nasdaq’s Letter. Upon receipt of the Notice, the Company promptly requested a hearing before a Hearings Panel to appeal the determination, which stayed the suspension of Neos’ securities and the filing of the Form 25-NSE pending a decision by the Hearings Panel.

On February 4, 2021, Neos conducted its hearing before the Nasdaq Hearings Panel. On February 5, 2021, the Hearings Panel granted Neos’ request to continue its listing on Nasdaq during the pendency of the Merger or until June 28, 2021. To remain listed on Nasdaq beyond such date, Neos must demonstrate compliance with the Minimum Bid Price Rule on or before such date.

Item 3.02 Unregistered Sales of Equity Securities.

The disclosure regarding the Promissory Note contained in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 3.02.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits

Exhibit

Number	Description

99.1	Investor Presentation dated January 11, 2021
Exhibit
99.2	Investor Presentation Script
Number		Description
104	Cover page Interactive Data File (embedded within the Inline XBRL document)

10.1		Unsecured Convertible Promissory Note, by and between Neos and Aytu.
10.2		Registration Rights Agreement, by and between Neos and Aytu.
10.3		Subordination Agreement, by and among Neos, Aytu, Deerfield Private Design Fund III, L.P. and Deerfield Partners, L.P.
10.4		Subordination Agreement, by and among Neos, Aytu, Neos Therapeutics Brands, LLC, Neos Therapeutics, LP, Neos Therapeutics Commercial, LLC, Pharmafab Texas, LLC and Encina Business Credit, LLC.
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	NEOS THERAPEUTICS, INC.

Date: January 11, 2021	By:	/s/ Richard I. Eisenstadt

		Richard I. Eisenstadt
	NEOS THERAPEUTICS, INC.
		Chief Financial Officer


Date: February 8, 2021	By:	/s/ Richard I. Eisenstadt
		Richard I. Eisenstadt
		Chief Financial Officer

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