Exhibit 10.1


 





 



 


CLARUS THERAPEUTICS, INC.


 


to


 


U.S.
BANK NATIONAL ASSOCIATION,


 


as Trustee and as Collateral Agent


 





 



 


Supplemental Indenture No. 3

Dated as of September 28, 2021


 





 






 


Supplemental to the Indenture dated as of
March 12, 2020

Relating to the 12.5% Senior Secured Notes due 2025


 





 






 


Providing for Certain Amendments to said Indenture


 


 






 




     


     


    

 


Supplemental
Indenture No. 3


 


This SUPPLEMENTAL INDENTURE
No. 3 dated as of September 28, 2021 is between Clarus Therapeutics, Inc., a Delaware corporation with an address at 555 Skokie Boulevard,
Suite 340, Northbrook, Illinois 60062 (the “Issuer”), and U.S. Bank National Association, as trustee (the “Trustee”)
and as collateral agent (the “Collateral Agent”). This Supplemental Indenture No. 3 supplements and amends that certain Indenture
dated as of March 12, 2020 among the Issuer, the Trustee and the Collateral Agent, as amended and supplemented by Supplemental Indenture
No. 1 dated as of May 27, 2021 and Supplemental Indenture No. 2 dated as of September 9, 2021, in each case, from the Issuer to the Trustee
and the Collateral Agent (as so supplemented and amended, the “Original Indenture”). The Original Indenture and any and all
indentures and instruments supplemental thereto (including this Supplemental Indenture No. 3) are hereinafter sometimes collectively called
the “Indenture”.


 


RECITALS OF THE ISSUER


 


WHEREAS, the Original Indenture
was authorized, executed and delivered by the Issuer to provide for the issuance from time to time of the Securities (such term and all
other capitalized terms used herein without definition having the respective meanings assigned to them in the Original Indenture);


 


WHEREAS, the Issuer desires
to amend certain provisions of the Original Indenture as set forth in this Supplemental Indenture No. 3;


 


WHEREAS, there are no Guarantors
currently a party to the Original Indenture;


 


WHEREAS, Section 9.02 of the
Original Indenture permits the Issuer, the Collateral Agent, the Guarantors and the Trustee to amend or supplement the Original Indenture
with the written consent of the Holders of the requisite principal amount of the Securities then outstanding voting as a single class;


 


WHEREAS, the Issuer has obtained
the written consent of the Holders of 100% of the principal amount of the Securities currently outstanding voting as a single class to
the amendment of the provisions of the Original Indenture as set forth in this Supplemental Indenture No. 3 (as evidenced by an Officer’s
Certificate and Opinion of Counsel delivered to the Trustee);


 


WHEREAS, pursuant to that
certain direction letter dated as of September 28, 2021, among other things, Holders of 100% of the principal amount of the Securities
currently outstanding directed the Trustee pursuant to Section 6.05 of the Original Indenture to execute this Supplemental Indenture No.
3 and the Trustee accepted such direction pursuant to the terms and conditions provided therein; and


 


WHEREAS, the Issuer has satisfied
the other conditions set forth in the Original Indenture to the valid execution and delivery of this Supplemental Indenture No. 3 by the
Issuer, the Collateral Agent and the Trustee;


 


NOW, THEREFORE, THIS SUPPLEMENTAL
INDENTURE NO. 3 WITNESSETH, that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it
is mutually covenanted and agreed as follows:


 


ARTICLE
One


 


SECTION 1.01. A new
Section 4.23 is added to the Original Indenture as follows:


 


SECTION 4.23. Refinancing
Process. The Issuer shall, either directly or indirectly through an Affiliate, (i) engage a financial advisor or similar agent reasonably
satisfactory to the Holders as determined in good faith to assist the Issuer (or such Affiliate) with the refinancing, redemption or other
repayment of all of the outstanding Securities (a “Debt Refinance”), and (ii) commence an active and continuous process intended
to effectuate a Debt Refinance, in each case, beginning no later than October 15, 2021. The Issuer and/or any of its Affiliates shall
not commence or conduct any process to sell, offer for sale, market or promote any Equity Interest of the Issuer or such Affiliate without
simultaneously commencing and conducting a Debt Refinance process.


 






    1


     


    

 


SECTION 1.02. The
first sentence of Section 8.01(c) of the Original Indenture is amended and restated as follows:


 


Subject to Section 8.01(b)
and Section 8.02, the Issuer at any time may terminate (i) all its obligations under the Securities and this Indenture (with respect to
such Securities) (“legal defeasance option”) or (ii) its obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.10,
4.11, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 4.21, 4.22 and 4.23 and the operation of Section 4.08, Article 5 and Sections 6.01(c),
6.01(d), 6.01(e) (with respect to Restricted Subsidiaries of the Issuer only), 6.01(f) (with respect to Restricted Subsidiaries of the
Issuer only), 6.01(g), 6.01(h), 6.01(i), 6.01(j), 6.01(k) and 6.01(l) (“covenant defeasance option”).


 


SECTION 1.03. A new
last sentence is added to Paragraph 1(b) of each of the Securities (and the form of Security attached as Exhibit A to the Original Indenture)
as follows:


 


Notwithstanding
the foregoing or anything to the contrary in this Security or the Indenture, the interest payment amount that was due and payable on the
Securities on September 1, 2021 (exclusive of the interest payable in respect of $10,000,000 aggregate principal amount of the Securities
that were exchanged and cancelled pursuant to Section 4 of the Transaction Support Agreement) shall be due and payable in cash on March
1, 2022 together with interest accrued on such amount in cash from and including September 1, 2021 until payment thereof at a rate per
annum equal to 18.5% (collectively, the “September 1, 2021 Interest Payment Amount”) (and, for the avoidance of doubt, in
addition to the interest payment amount due and payable on the Securities on March 1, 2022). For all purposes under the Indenture, until
paid, the September 1, 2021 Interest Payment Amount shall be treated as “accrued and unpaid interest” or “accrued but
unpaid interest” in respect of the Securities, including for purposes of Article 3, Section 4.08 and Section 6.02 of the Indenture
and Paragraph 5 of each of the Securities.


 


SECTION 1.04. The
first sentence of paragraph 4 of each of the Securities (and the form of Security attached as Exhibit A to the Original Indenture) is
hereby deleted in its entirety and replaced with the following:


 


The Issuer issued
the Securities under the Indenture dated as of March 12, 2020 (as amended from time to time, including by Supplemental Indenture No. 1
thereto dated as of May 27, 2021, by Supplemental Indenture No. 2 thereto dated as of September 9, 2021 and by Supplemental Indenture
No. 3 thereto dated as of September 28, 2021, the “Indenture”) among the Issuer, the guarantors that may be party thereto
from time to time, the Trustee and the Collateral Agent.


 


SECTION 1.05. 


 


(i) Without
prejudice to the terms of this Supplemental Indenture No. 3, the Issuer confirms that the security created by or pursuant to the Security
Documents remains in full force and effect and continues to secure the Obligations.


 






    2


     


    

 


(ii) Without
prejudice to the terms of the Security Documents, the Issuer confirms that the security created by or pursuant to the Security Documents
extends to secure the Obligations as amended or supplemented by the terms of this Supplemental Indenture No. 3.


 


ARTICLE
Two


 


SECTION 2.01. This
Supplemental Indenture No. 3 is a supplement to the Original Indenture. As supplemented by this Supplemental Indenture No. 3, the Original
Indenture is in all respects ratified, approved and confirmed, and the Original Indenture and this Supplemental Indenture No. 3 shall
together constitute the Indenture. This Supplemental Indenture No. 3 shall in no way be construed or interpreted as an extinctive novation
of any of the obligations or agreements of the Issuer set forth in the Original Indenture.


 


SECTION 2.02. Sections
12.01, 12.07, 12.09, 12.10, 12.11, 12.12, 12.13 and 12.15 of the Original Indenture shall be applicable to this Supplemental Indenture
No. 3, as though fully set forth herein. The words “execution”, “signed” and “signature” and words
of like import in this Supplemental Indenture No. 3 or in any other certificate, agreement or document related to this Supplemental Indenture
No. 3 shall include images of manually executed signatures transmitted by facsimile or other electronic format (including “pdf”,
“tif” or “jpg”) and other electronic signatures (including DocuSign and AdobeSign, or such other digital signature
provider as specified in writing to Trustee by the Issuer). The use of electronic signatures and electronic records (including any contract
or other record created, generated, sent, communicated, received or stored by electronic means) shall be of the same legal effect, validity
and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable
Law, including the Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act
and any other applicable Law, including any state Law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
The Issuer agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications
to each other, including without limitation the risk of the Trustee acting on unauthorized instructions (other than any instructions actually
known by the Trustee to be unauthorized or otherwise invalid), and the risk of interception and misuse by third parties; provided that
neither the Issuer assumes any such risks if the Issuer incurs any loss, liability or expense as a result of the Trustee’s, the
Collateral Agent’s and/or any related Person’s own willful misconduct or gross negligence (as determined by a final, non-appealable
order of a court of competent jurisdiction).


 


SECTION 2.03. The
recitals contained in this Supplemental Indenture No. 3 shall be taken as the statements of the Issuer. The Trustee and the Collateral
Agent assume no responsibility for the correctness of such recitals and make no representations as to the validity or sufficiency of this
Supplemental Indenture No. 3.


 


{SIGNATURE PAGES FOLLOW}


 




    3


     


    

 


IN WITNESS WHEREOF, the parties
hereto have caused this Supplemental Indenture No. 3 to be duly executed as of the date first written above.


 


	 	CLARUS THERAPEUTICS, INC.
	 	 	 
	 	By:	/s/ Robert E. Dudley
	 	 	Name: Robert E. Dudley
	 	 	Title: President and Chief Executive Officer



 


{Signature Page to Supplemental Indenture No. 3}


 




     


     


    

  


	 	U.S. BANK NATIONAL ASSOCIATION,
	 	as Trustee
	 	 	 
	 	By:	/s/ Diana Jacobs
	 	 	Name: Diana Jacobs
	 	 	Title: Vice President
	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,
	 	as Collateral Agent
	 	 	 
	 	By:	/s/ Diana Jacobs
	 	 	Name: Diana Jacobs
	 	 	Title: Vice President


 


{Signature Page to Supplemental Indenture No. 3}