Exhibit 10.1


 


[FORM OF] 


FORTRESS BIOTECH, INC.


2013 STOCK INCENTIVE PLAN


 


RESTRICTED STOCK UNIT AWARD AGREEMENT


 


This Restricted Stock Unit
Award Agreement (this “Agreement”) is made and entered into between Fortress Biotech, Inc. (the “Company”)
and David Jin (“Grantee”), effective as of [•] (such date the “Date of Grant”).
This Agreement sets forth the terms and conditions associated with the Company’s award to Grantee of Restricted Stock Units payable
as described below in shares of Common Stock from the Company pursuant to the Company’s 2013 Stock Incentive Plan (the “Plan”)
for the number of Units set forth below (collectively, the “Award”). Capitalized terms used herein which are
not otherwise defined herein will have the meanings ascribed to them under the Plan.


 


NOW, THEREFORE, in consideration
of the foregoing and Grantee’s continued provision of valuable services as an employee and/or consultant of the Company and/or its
Affiliate, it is agreed by and between the parties as follows:


 


1.            Grant of Units. Effective as of the Date of Grant, the Company hereby grants the Grantee [•] Restricted Stock Units (the
“Units”). The Units are subject to the vesting, payment, and other provisions of this Agreement and the Plan.
Each Unit is subject to settlement into one (1) Share that will be delivered to the Grantee if such Unit becomes vested subject to the
terms of this Agreement, including the settlement provisions in Section 4 below. The Company will account for the Units in a bookkeeping
account on the Grantee’s behalf until they become payable or are forfeited.


 


2.            Vesting. The Units are unvested when granted and will vest pro rata on a monthly basis beginning on [•] and ending on
[•], subject to Grantee’s Continuous Service through the applicable vesting dates, provided that vesting may accelerate or
cease as provided for in this Agreement or in the Plan. Notwithstanding the foregoing, in the event of a Corporate Transaction the Units
shall become 100% vested effective immediately prior to the consummation of the Corporate Transaction.


 


3.            Effect of Termination of Continuous Service. In the event of the termination of Grantee’s Continuous Service, all Units
that are not vested will be forfeited.


 


4.            Delivery
of Shares to Settle Vested Units. Units vested as provided in Section 2 will be settled by delivering to Grantee a number of
Shares equal to the number of vested Units on the [•] business day of [•] following termination of Grantee’s
Continuous Service. On such date, the Company will, at its election, either: (a) issue a certificate representing the Shares payable
pursuant to this Agreement; or (b) not issue any certificate representing the Shares payable pursuant to this Agreement and
instead document the Grantee’s interest in the Shares by registering such Shares with the Company’s transfer agent (or
another custodian selected by the Company) in book-entry form in the Grantee’s name. Notwithstanding the foregoing, in the
event of a Corporate Transaction prior to settlement, settlement of any vested Units will be accelerated and made in cash within
five (5) business days after the Corporate Transaction date, in an amount equal to the result of multiplying the vested Units by the
fair market value of one share of common stock on the Corporate Transaction date, as determined by the Administrator. In addition,
notwithstanding the foregoing, in the event of the death of Grantee prior to settlement, settlement of any vested Units will be
accelerated and made in cash within thirty (30) business days after Grantee’s date of death, in an amount equal to the result
of multiplying the vested Units by the fair market value of one share of common stock on Grantee’s date of death, as
determined by the Administrator.


 






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5.            Capitalization Changes. The number of Units convertible to Shares subject to this Award may be adjusted from time to time by
the Administrator to account for changes in capitalization as described in Section 12 of the Plan.


 


6.            Rights as a Stockholder. The Units represent a right to payment from the Company if the conditions of the Agreement are met
and do not give the Grantee ownership of any Common Stock prior to delivery as provided in Section 4. Grantee shall not have any rights
and/or privileges of a stockholder of the Company with respect to the Units prior to such delivery. If Grantee becomes vested in Units
as provided in Section 2, any Shares to which Grantee becomes entitled shall be delivered to Grantee as provided in Section 4, and Grantee
shall have full ownership of the Shares upon such delivery.


 


7.            Non-Transferability of the Award. The Units and the right to payment under this Agreement are not transferable, may not be
sold, exchanged, transferred, pledged, hypothecated, encumbered or otherwise disposed of except as provided in the Plan. Any purported
transfer of the Units or the right to payment under this Agreement is null and void and will not be given effect.


 


8.            Award Not An Employment Agreement. The Award is not an employment or service contract, and nothing this Agreement confers or
will be construed as conferring upon the Grantee any right to continue in the employment or service of the Company, or as interfering
with or restricting in any way the right of either party to terminate such employment or service at any time.


 


9.            Tax Consequences. Grantee acknowledges that he/she understands the federal, state, and local tax consequences of the Award
and the issuance, vesting, forfeiture, and delivery provisions hereof relating to the Units. Grantee will rely solely on the advice of
his/her own tax advisors and not on any statements or representations of the Company or any of its agents. Grantee understands that Grantee
(and not the Company) shall be responsible for his/her own tax liability that may arise as a result of the Award or the transactions contemplated
by this Agreement.


 


10.          Withholding
Obligations. Grantee understands that, at the time that Grantee becomes vested and/or receives payment for any Units (including
through the delivery of Shares), the Company may be required to withhold federal, state and local income and employment taxes. At
the time of vesting, or at or before the time Grantee receives a distribution of the Shares underlying the Units or other
consideration, or at any time thereafter as requested by the Company, Grantee hereby authorizes the Company to satisfy any required
withholding to satisfy federal, state, local, payroll, and foreign tax withholding obligations of the Company or any Affiliate that
arise in connection with the Units (the “Withholding Taxes”). Notwithstanding any other provision of this
Section, the Company may, in its sole discretion, satisfy all or any portion of the Withholding Taxes obligation relating to the
Units by any of the following means or by a combination of such means: (a) withholding from any compensation otherwise payable to
the Grantee by the Company; (b) causing the Grantee to tender a cash payment; or (c) withholding Shares from the Shares issued or
otherwise issuable to Grantee in connection with the Units with a Fair Market Value (measured as of the date the Withholding Taxes
are to be determined) equal to the amount of such Withholding Taxes; provided, however, that the number of such Shares so
withheld shall not exceed the amount necessary to satisfy the Company’s required tax withholding obligations using the minimum
statutory withholding rates for federal, state, local and foreign tax purposes, including payroll taxes, that are applicable to
supplemental taxable income (or such lesser amount as may be necessary to avoid classification of the Units as a liability for
financial accounting purposes). Grantee understands that all matters with respect to the total amount of taxes to be withheld in
respect of such compensation income will be determined by the Administrator in its reasonable discretion. Grantee further
understands that, although the Company may pay withheld amounts to the applicable taxing authorities, the Grantee is responsible for
payment of all taxes due as a result of compensation arising under the Agreement.


 






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11.          Data Privacy. Grantee acknowledges that the Company
holds certain personal information about Grantee, including, but not limited to: name, home address and telephone number, date of birth,
social security number or other identification number, compensation, nationality, job title, details of the Award, and any other entitlement
to shares of stock awarded, cancelled, exercised, vested or unvested. Grantee consents to the collection, use and transfer, in electronic
or other form, of such personal data for the purpose of implementing, administering, and managing this Award.


 


12.          Notices. Any notice or request required or permitted hereunder shall be given in writing to each of the other parties hereto
and shall be deemed effectively given on the earlier of (a) the date of personal delivery, or (b) three days after the date of deposit
in the United States Mail by registered or certified mail, postage prepaid, return receipt requested, addressed in the case of the Company
to the Company’s Chief Executive Officer at the Company’s primary business address and in the case of the Grantee to the most
recent address shown in the Company’s records.


 


13.          Incorporation
of the Plan; Entire Agreement; Modification. The Award is subject to all the provisions of the Plan, the provisions of which are
hereby made a part of this Agreement, and is further subject to all interpretations, amendments, rules and regulations which may
from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of this
Agreement and those of the Plan, the provisions of the Plan shall control. This Agreement (including the Plan) sets forth all of the
promises, agreements, conditions and understandings between the parties hereto with respect to the Award, and there are no promises,
agreements, conditions, understandings, warranties or representations, oral or written, express or implied, between them with
respect to the Award other than as set forth therein or herein. This Agreement supersedes and replaces any and all prior agreements
between the parties hereto with respect to Restricted Stock Units granted under this Award. Except as provided by the Plan, no
modification, amendment or waiver of any of the provisions of this Agreement will be effective unless approved in writing by both
parties.


 






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14.          Choice of Law. The interpretation, performance and enforcement of this Agreement shall be governed by the law of the state
of New York without regard to the conflicts of laws rules of any jurisdiction.


 


15.          Miscellaneous. 


 


(a)           The headings of the Sections in this Agreement are inserted for convenience only and shall not be deemed to constitute a part
of this Agreement or to affect the meaning of this Agreement.


 


(b)           If all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid,
such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid.
Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a
manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful
and valid.


 


(c)           This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators,
successors and assigns. The rights and obligations of the Company under this Agreement shall be transferable by the Company to any one
or more persons or entities, and all covenants and agreements hereunder shall inure to the benefit of, and be enforceable by, the Company’s
successors and assigns.


 


(d)           The waiver by either party of compliance with any provision of this Agreement by the other party will not operate or be construed
as a waiver of any other provision of this Agreement, or of any subsequent breach by such party of a provision of this Agreement.


 


(e)           Grantee agrees upon request to execute any further documents or instruments necessary or desirable in the sole determination
of the Company to carry out the purposes or intent of the Award.


 


(f)            Grantee acknowledges and agrees that he/she (i) has reviewed this Agreement and the Plan in their entirety; (ii) fully understands
the provisions of each such document; and (iii) has had an opportunity to obtain the advice of counsel prior to executing and accepting
the Award. Grantee further acknowledges receipt or the right to receive a document providing the information required by Rule 428(b)(1)
promulgated under the Securities Act.


 


(g)           This Agreement shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies
or national securities exchanges as may be required.


 


(h)           All obligations of the Company under the Plan and this Agreement shall be binding on any successor to the Company, whether
the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially
all of the business and/or assets of the Company.


 






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(i)            This
Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute
one and the same agreement. Facsimile or PDF reproductions of original signatures will be deemed binding for the purpose of the execution
of this Agreement.


 


16.          Application of Section 409A of the Code.


 


(a)           The parties intend that the delivery of Shares or other consideration in respect of the Units provided under this Agreement
satisfies, to the greatest extent possible, the exemption from or is compliant with the application of Section 409A of the Code and the
regulations and other guidance thereunder and any state law of similar effect (collectively, “Section 409A”)
provided under Treasury Regulations Section 1.409A-1(b)(4) (or any other applicable exemption), and this Agreement will be construed to
the greatest extent possible as consistent with those provisions. To the extent not so exempt, the delivery of Shares or other consideration
in respect of the Units provided under this Agreement will be conducted, and this Agreement will be construed, in a manner that complies
with Section 409A and is consistent with the requirements for avoiding taxes or penalties under Section 409A.


 


(b)           The parties further intend that each installment of any payments provided for in this Agreement is a separate “payment”
for purposes of Section 409A.


 


(c)           To the extent any payment hereunder due upon the occurrence of a Corporate Transaction is deferred compensation that is subject
to Section 409A, and is not otherwise exempt from complying with the provisions of Section 409A, then a Corporate Transaction shall only
be deemed to occur if the Corporate Transaction also qualifies as a “change in control event” with respect to the Company
within the meaning of Treasury Regulation Section 1.409A-3(i)(5).


 


(d)           The Company makes no representations to Grantee regarding the compliance of this Agreement or the Units with Section 409A,
and Grantee is solely responsible for the payment of any taxes or penalties arising under Section 409A(a)(1), or any state law of similar
effect, with respect to the grant or vesting of the Units or the delivery of the Shares subject to this Award.


 


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IN
WITNESS WHEREOF, the Company has caused this Agreement to be signed by its duly authorized officer, and Grantee has hereunto set his/her
hand and seal.


 


	GRANTEE:	 	COMPANY:
	 	 	 
	 	 	FORTRESS BIOTECH, INC.
	 	 	 
	 	 	By:	 
	David Jin	 	Name:	Lindsay A. Rosenwald, M.D.     
	 	 	Title: Chief Executive Officer


 








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