Exhibit 10.3


 


AMENDED AND
RESTATED CONSULTING AGREEMENT


 


THIS AMENDED AND RESTATED
CONSULTING AGREEMENT (this “Agreement”), effective as of the 1st day of January 2019 (the “A&R
Effective Date”) is by and between Eric Rowinsky, M.D., having an address set forth below (hereinafter referred to as
“Consultant”) and Fortress Biotech, Inc., a Delaware corporation, having offices at 2 Gansevoort, 9th
Floor, New York, NY 10014 (“Fortress”).


 


W I T N E S S E T H:


 


WHEREAS, Fortress
and Advisor are party to that certain Consulting Agreement, dated as of September 21, 2010 (the “Original Consulting Agreement”)
and desire to amend the Original Consulting Agreement to alter the payment and other provisions thereof;


 


WHEREAS, Fortress
desires to engage Consultant to continue to provide certain advisory services on an independent contractor basis as described below,
and Consultant wishes to continue to provide such services to Fortress; and


 


WHEREAS, Fortress
and Consultant desire to establish and document the terms and conditions of such consulting relationship between them.


 


NOW, THEREFORE,
in consideration of the mutual covenants and agreements hereinafter set forth, the parties hereto agree as follows:


 


Section 1. Term
of Agreement. This Agreement shall remain in effect until terminated as provided in Section 9 below.


 


Section 2. Services.
Fortress appoints Consultant and Consultant hereby accepts appointment as an independent contractor to perform consulting and advisory
services as may be requested by Fortress and agreed to by Consultant (the “Services”).


 


Section 3. Compensation.



 


(a)   Fortress
will pay Consultant $500 per hour (the “Fee”) for any amount of time Consultant spends performing the Services
pursuant to the terms hereof; provided, however, that the Consultant shall not perform more than 500 hours in the aggregate pursuant
to this Agreement without the prior written consent of Fortress.


 


(b)   Within
thirty (30) days of performance of Services in a given month, Consultant will provide Fortress with an invoice setting forth the
actual number of hours worked, activities undertaken, and itemization of all other reimbursable costs incurred. Such invoices shall
be payable within thirty (30) days of receipt of the invoice and resolution of any issues concerning the invoice.


 


(c)   Upon
termination of this Agreement for any reason, Fortress will pay the unpaid Fees that have accrued through the effective date of
termination.


 






     


     


    

 


Section 4.
Duties of Consultant. While engaged by Fortress, the Consultant agrees to abide by the following requirements in
connection with the Services:


 


(a)   Consultant
agrees to faithfully, diligently, competently, and to the best of his ability perform the Services, provided that Consultant will
at all times retain sole and absolute discretion and judgment in the manner and means of carrying out the Services. Consultant
will generally be able to perform the Services pursuant to any schedule, provided that the Services are completed within the time
periods specified by Fortress, and Consultant will have no obligation to follow any particular sequence in performing the Services.


 


(b)   Consultant
will be responsible for his expenses incurred in connection with the performance of the services described herein, including, without
limitation, the costs and expenses of any insurance, office space, and supplies, as well as any applicable taxes, withholdings,
contributions, fees or charges levied or required by any governmental entity as a result of Consultant’s performance of the
Services, provided, however, that if Consultant is required to travel in order to perform the Services, Fortress will reimburse
Consultant for such reasonable travel expenses incurred by Consultant provided that such expenses are approved in advance by the
Chief Executive Officer of Fortress or his designee, and provided further that Consultant presents a detailed and itemized account
of such expenses along with proper documentation as Fortress may request.


 


Section 5. Confidential
Information and Inventions.


 


(a)   Consultant
recognizes and acknowledges that in the course of his duties he is likely to receive confidential or proprietary information owned
by Fortress, its affiliates or third parties with whom Fortress or any such affiliates has an obligation of confidentiality. Accordingly,
during and after the term of this agreement, Consultant agrees to keep confidential and not disclose or make accessible to any
other person or use for any other purpose other than in connection with the fulfillment of his duties under this Agreement, any
Confidential Information (as defined below) owned by, or received by or on behalf of, Fortress or any of its affiliates. “Confidential
Information” shall include, but shall not be limited to, confidential or proprietary scientific or technical information,
data, formulas and related concepts, business plans (both current and under development), client lists, promotion and marketing
programs, trade secrets, or any other confidential or proprietary business information relating to development programs, costs,
revenues, marketing, investments, sales activities, promotions, credit and financial data, manufacturing processes, financing methods,
plans or the business and affairs of Fortress or of any affiliate or client of Fortress. Consultant expressly acknowledges the
proprietary status of the Confidential Information and that the Confidential Information constitutes a trade secret and/or protectable
business interest of Fortress. Consultant agrees: (i) not to use any such Confidential Information for himself or others; (ii)
not to take any Confidential Information or any Fortress material (including but not limited to writings, correspondence, notes,
drafts, records, invoices, technical and business policies, computer programs or disks) from any of Fortress’s offices; and
(iii) not to disclose or publish any Confidential Information, except as required in the performance of the Services or authorized
by Fortress.


 


(b)   Consultant
agrees to return immediately all Confidential Information in any for and all Fortress property (including but not limited, to writings,
correspondence, notes, drafts, records, invoices, technical and business policies, computer programs or disks) in his possession
to Fortress upon request and in any event immediately upon termination of this Agreement.


 






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(c)   Confidential
Information shall not include any information that:


 


(i)    can
be established, by written records, as already in Consultant’s possession or control prior to the date of disclosure by Fortress;


 


(ii)   was
or becomes generally available to the public other than as a result of a disclosure by Consultant by reason of any default with
respect to a confidentiality obligation under this Agreement or otherwise between the parties; or


 


(iii)  becomes
available to Consultant from a source other than Fortress, its agents, consultants or representatives, provided that such source
is not prohibited from disclosing such information by any confidentiality agreement or other contractual, legal or fiduciary obligation
of nondisclosure.


 


(d)   The
restrictions in Section 5(b) above will not apply to any information to the extent that Consultant is required to disclose such
information by law, provided that Consultant (i) notifies Fortress in writing of the existence and terms of such obligation, (ii)
gives Fortress a reasonable opportunity to seek a protective or similar order to prevent or limit such disclosure, and (iii) only
discloses that information actually required to be disclosed.


 


(e)   The
Consultant agrees that all inventions, discoveries, improvements and patentable or copyrightable works (“Inventions”)
initiated, conceived or made by him, either alone or in conjunction with others, made while performing the Services, shall be the
sole property of Fortress to the maximum extent permitted by applicable law and, to the extent permitted by law, shall be “works
made for hire” as that term is defined in the United States Copyright Act (17 U.S.C. Section 101). Fortress shall be the
sole owner of all patents, copyrights, trade secret rights, and other intellectual property or other rights in connection therewith.
The Consultant hereby assigns to Fortress all right, title and interest he may have or acquire in all such Inventions. The Consultant
further agrees to assist Fortress in every proper way (but at Fortress’s expense) to obtain and from time to time enforce
patents, copyrights or other rights on such Inventions in any and all countries, and to that end the Consultant will execute all
documents necessary:


 


(i)    to apply for, obtain and vest in the name of Fortress alone (unless Fortress otherwise directs) letters patent, copyrights
or other analogous protection in any country throughout the world and when so obtained or vested to renew and restore the same;
and


 


(ii)   to
defend any opposition proceedings in respect of such applications and any opposition proceedings or petitions or applications
for revocation of such letters patent, copyright or other analogous protection.


 


(f)    Consultant
agrees that any breach of this Section 5 by Consultant would cause irreparable damage to Fortress,
and that monetary damages alone would not be adequate to repair such harm. In the event of such breach or threatened breach, Fortress
shall have, in addition to any and all remedies at law and without the
posting of a bond or other security, the right to an injunction, specific performance or other equitable relief necessary to prevent
or redress the violation of Consultant’s obligations under this Section. In the event that an actual proceeding is brought
in equity to enforce this Section, Consultant shall not urge as a defense that there is an adequate remedy at law nor shall Fortress
be prevented from seeking any other remedies which may be available to
it.


 






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(g)   The
provisions of this Section 5 shall survive any termination of this Agreement.


 


(h)   Consultant
is hereby notified that pursuant to the Defend Trade Secrets Act of 2016, an individual will not be held criminally or civilly
liable under any federal or state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a
federal, state or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of
reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or
other proceeding, if such filing is made under seal.  An individual who files a lawsuit for retaliation by an employer for
reporting a suspected violation of law may disclose the trade secret to his or her attorney and use the trade secret information
in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the
trade secret, except pursuant to court order.


 


Section 6. Insider
Trading. Consultant recognizes that in the course of his duties hereunder, Consultant may receive from Fortress or others
information that may be considered "material, nonpublic information" concerning a public company that is subject to the
reporting requirements of the Securities and Exchange Act of 1934, as amended. Consultant agrees NOT to:


 


(a)   buy
or sell any security, option, bond or warrant of Fortress or any of its affiliated companies while in possession of relevant material,
nonpublic information received from Fortress or others in connection herewith;


 


(b)   provide
Fortress with information with respect to any public company that may be considered material, nonpublic information; or


 


(c)   provide
any person with material, nonpublic information, received from Fortress, including any relative, associate, or other individual
who intends to, or may, (i) trade securities with respect to Fortress or any of its affiliated companies which is the subject of
such information, or (ii) otherwise directly or indirectly benefit from such information.


 


Section 7. Representations
and Warranties of Consultant.


 


(a)   Neither
the execution or delivery of this Agreement nor the performance by Consultant of his duties and other obligations hereunder violate
or will violate any statute, law, determination or award, or conflict with or constitute a default or breach of any covenant or
obligation under (whether immediately, upon the giving of notice or lapse of time or both) any prior employment agreement, contract,
or other instrument to which Consultant is a party or by which he is bound.


 


(b)   Consultant
has the full right, power and legal capacity to enter and deliver this Agreement and to perform his duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding obligation of Consultant enforceable against him in accordance
with its terms. No approvals or consents of any persons or entities are required for Consultant to execute and deliver this Agreement
or perform his duties and other obligations hereunder.


 






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Section 8. Consultant
not an Employee. Fortress and Consultant hereby acknowledge and agree that Consultant shall perform the services hereunder
as an independent contractor and not as an employee or agent of Fortress or any Fortress affiliate. Consultant is not to represent
that he is an employee of Fortress or any Fortress affiliate under any circumstance. In addition, nothing in this Agreement shall
be construed as establishing any joint venture, partnership or other business relationship between the parties hereto or representing
any commitment by either party to enter into any other agreement by implication or otherwise except as specifically stated herein.
Consultant shall have no authority, express or implied, to bind Fortress or any Fortress affiliate to any agreement, contract,
or other commitment. Consultant will not be an employee of Fortress for any purpose, including for purposes of the Fair Labor Standards
Act’s minimum wage and overtime provisions, nor any other provision of federal, state, or local law applicable to employees.
Further, Consultant understands and agrees that he will not be entitled to any employment benefits that may be made available by
Fortress to its employees, including but not limited to vacation pay, sick leave, retirement benefits, social security, workers’
compensation, health or disability benefits, and unemployment insurance benefits. Consultant will be solely responsible for all
taxes, withholding and other similar statutory obligations. Consultant further understands and agrees that this Agreement is entered
into by Fortress on a non-exclusive basis and that Fortress and its affiliates remain free to deal with others and retain other
consultants, agents, employees, brokers, finders, etc. in the same or similar capacity as Consultant has been retained at any time
at their own option.


 


Section 9. Termination.


 


(a)   This
Agreement may be terminated by Consultant or Fortress upon three (3) days’ prior written notice. Immediately upon receipt
of such notice from Fortress, Consultant shall institute such termination procedures as may be specified in the notice and shall
use his best efforts to minimize the cost to Fortress resulting from such termination. In the event of such termination, Fortress
shall pay to Consultant reasonable charges for the work performed and expenses incurred up to the notice of termination.


 


(b)   Upon
termination, Consultant will provide Fortress with a report detailing the work product and results of the work performed under
the Agreement.


 


(c)   Termination
of this Agreement shall not relieve either party of any obligation to the other in respect of any other provisions of this Agreement
which by their nature are intended to survive termination.


 


(d)   Any
Confidential Disclosure Agreements (“CDAs”) signed between Fortress and Consultant shall remain in effect beyond
the termination of this Agreement.


 






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Section 10. Miscellaneous.


 


(a)   Severability
of Provisions. If any provision of this Agreement shall be declared by a court of competent jurisdiction to be invalid, illegal
or incapable of being enforced in whole or in part, the remaining conditions and provisions or portions thereof shall nevertheless
remain in full force and effect and enforceable to the extent they are valid, legal and enforceable, and no provision shall be
deemed dependent upon any other covenant or provision unless so expressed herein.


 


(b)   Entire
Agreement; Modification; Amendment and Restatement. This Agreement is the entire agreement of the parties relating to the subject
matter hereof and the parties hereto have made no agreements, representations or warranties relating to the subject matter of this
Agreement that are not set forth herein. No amendment or modification of this Agreement shall be valid unless made in writing and
signed by each of the parties hereto. This Agreement amends, restates, supersedes and replaces the Original Consulting Agreement
in its entirety; as of the A&R Effective Date, the Original Consulting Agreement, including for the avoidance of doubt and
without limitation any termination fees or guarantees that appeared therein, shall have no further force or effect. The Parties
acknowledge that all payments owing and payable under the Original Consulting Agreement have, as of the date of full execution
hereof, been paid and satisfied in full.


 


(c)   Binding
Effect. The rights, benefits, duties and obligations under this Agreement shall inure to, and be binding upon, Fortress, its
successors and assigns, and upon Consultant and his legal representatives. This Agreement constitutes a personal service agreement,
and the performance of Consultant’s obligations hereunder may not be transferred or assigned by Consultant without the prior
written consent of Fortress, and any such purported transfer or assignment shall be null and void ab initio.


 


(d)   Third
Party Beneficiaries. This Agreement is for the benefit of the parties hereto and their successors and permitted assigns and
is not intended to confer upon any other person or entity any rights or remedies hereunder.


 


(e)   Non-Waiver.
The failure of either party to insist upon the strict performance of any of the terms, conditions and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance therewith, and said terms, conditions and provisions
shall remain in full force and effect. No waiver of any term or condition of this Agreement on the part of either party shall be
effective for any purpose whatsoever unless such waiver is in writing and signed by such party.


 


(f)    Governing
Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York
without regard to such State’s principles of conflict of laws. The parties hereby submit to the exclusive jurisdiction of
the state and federal courts sitting within the City, County and State of New York for any disputes arising out of this Agreement.


 


(g)   Headings. The headings of the Sections are inserted for convenience of reference only and shall not affect any interpretation
of this Agreement.


 


(h)   Gender
and Number. As used in this Agreement, the masculine, feminine or neuter gender, and the singular or plural, shall be deemed
to include the others whenever and wherever the context so requires. Additionally, unless the context requires otherwise, “or”
is not exclusive.


 






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		(i)	Notices. Any notice given pursuant to this Agreement
will be written and sent to:





 


	Fortress:	 	Consultant :
	 	 	 
	Fortress Biotech, Inc.	 	Eric Rowinsky, M.D.
	Attn: Legal	 	215 E 73rd Street
	2 Gansevoort, 9th Floor	 	New York, NY 10021
	New York, NY 10014	 	 


 


 


Fortress Invoices
to be sent to:


 


Fortress Biotech, Inc.


Attn: Accounts Payable


95 Sawyer Road, Suite 110


Waltham, MA 02453


Email:
ap@fortressbiotech.com


 


 


[Signature page
follows]





 






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IN WITNESS WHEREOF,
the parties hereto have executed this Agreement by proper person thereunto duly authorized as of the date first above written.


 


	 	FORTRESS BIOTECH, INC.
	 	 	 
	 	By:  	                             
	 	Name:  Lindsay A. Rosenwald, M.D.
	 	Title:  President & CEO
	 	 
	 	 
	 	
        Eric
Rowinsky, M.D.

	 	 
	 	 


 






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