Nutex Health Inc. 2023 Employee Stock Purchase Plan

1.Purpose and History. The purpose of the Nutex Health Inc. 2023 Employee Stock Purchase Plan (the “Plan”) is to advance the interests of Nutex Health Inc., a Delaware corporation (the “Company”), and its shareholders by providing Eligible Employees (as defined below) of the Company and its Designated Subsidiaries (as defined below) with an opportunity to acquire an ownership interest in the Company by purchasing Common Stock (as defined below) through payroll deductions. It is the intention of the Company that the Plan qualify as an “employee stock purchase plan” under Section 423 of the Internal Revenue Code of 1986, as amended (the “Code”). Accordingly, provisions of the Plan shall be construed so as to extend and limit participation in a manner consistent with the requirements of Section 423 of the Code.

2.Definitions.

(a)“Administrator” has the meaning set forth in Section 3(a).

(b)“Board” means the Board of Directors of the Company.

(c)“Code” has the meaning set forth in Section 1.  References herein to any Section of the Code ‎shall also refer to any successor provision thereof, and the regulations and other authority ‎issued thereunder by the appropriate governmental authority‎

(d)“Common Stock” means the common stock of the Company, par value $.001 per share, or the kind of shares of stock or other securities into which such common stock may be changed in accordance with Section 12(b).

(e)“Committee” means the Compensation Committee of the Board (or any successor committee).

(f)“Company” has the meaning set forth in Section 1.

(g)“Compensation” means, except as otherwise determined by the Administrator on a uniform basis for all Participants and prior to the Offering Period to which such determination applies, the regular base salary or wages paid to an Eligible Employee by reason of his or her employment with the Company or a Designated Subsidiary (determined prior to any reduction thereof by operation of a salary reduction election under a plan described in Section 401(k) of the Code or Section 125 of the Code) during an Offering Period, provided it shall not include (i) any reimbursements of expenses, (ii) any housing, relocation, automobile, travel or other similar cash allowances, (iii) salary continuation payments during a period of short-term disability or long-term disability, (iv) retention bonuses, (v) any sign-on bonus, or (vi) any non-cash compensation. For the avoidance of doubt, (x) overtime payments and shift premiums, (y) sales commission payments, and (z) vacation or other approved leave paid to a Participant by the Company or a Designated Subsidiary will be considered Compensation under the Plan.

(h)“Designated Subsidiary” means a Subsidiary that has been designated by the Administrator from time to time, in its sole discretion, as eligible to participate in the Plan.

(i)“Eligible Employee” means, with respect to any Offering Period, an individual who an employee of the Company or a Designated Subsidiary, except that an employee whose customary employment is 20 hours or less per week is not an Eligible Employee. In accordance with Treas. Reg. §1.421-1(h)(2), an employee will be considered to be employed during military or sick leave or any other bona fide leave of absence that does not exceed three months and during any period longer than three months if his or her right to reemployment is guaranteed by statute or contract.

(j)“End Date” means the last business day of each Purchase Period.

(k)“Exchange Act” means the Securities Exchange Act of 1934, as amended.

(l)“Fair Market Value” means, as of any specified date, if there is a public market for the Common Stock, the Fair Market Value per share shall be either (i) the ‎closing price of the Common Stock on such date (or, in the event that the Common Stock is not traded ‎on such date, on the immediately preceding trading date), as reported by NASDAQ, (ii) if such price is ‎not reported, the average of the bid and asked prices for the Common Stock on such date (or, in the ‎event that the Common Stock is not traded on such date, on the immediately preceding trading date), as ‎reported by NASDAQ, or (iii) in the event the Common Stock is listed on a stock exchange, the closing ‎price of the Common Stock on such exchange on such date (or, in the event that the Common Stock is ‎not traded on such date, on the immediately preceding trading date), as reported in The Wall Street ‎Journal.‎  In the event the Common Stock is not publicly traded at the time a determination of its ‎value is required to be made hereunder, the determination of its Fair Market Value shall be ‎made by the Committee in such manner as it deems appropriate, in accordance with Section ‎‎409A of the Code.‎

(m)“Offering Period” means an offering to Participants to purchase Common Stock under the Plan established pursuant to Section 4.

(n)“Option Date” means the first business day of each Purchase Period during an Offering Period.  

(o)“Option Price” means an amount equal to 85% of the Fair Market Value of one share of Common Stock on the End Date of the applicable Purchase Period.

(p)“Participant” means an Eligible Employee who elects to participate in one or more Offering Periods under the Plan pursuant to Section 5.

(q)“Participation Form” has the meaning set forth in Section 5(a).

(r)“Plan” has the meaning set forth in Section 1.

(s)“Purchase Period” means a period set by the Committee, which shall occur during an Offering Period. Unless changed by the Committee, there shall be two Purchase periods during each Offering Period and each such Purchase Period shall begin on the first day of a calendar quarter and end on the last day of such calendar quarter.  The first Purchase Period shall commence on July 1, 2023 and terminate on September 30, 2023.

(t)“Securities Act” means the Securities Act of 1933, as amended.

(u)“Subsidiary” means any corporation, other than the Company, in an unbroken chain of corporations, beginning with the Company, if, at the time an option is granted under the Plan, each of the corporations, other than the last corporation in the unbroken chain, owns stock possessing fifty (50) percent or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

(v)“Withdrawal Notice” has the meaning set forth in Section 10(a).

3.Plan Administration.

(a)Administration. The Plan shall be administered by the Committee, or, in the absence of the Committee, the Board itself (such administrator, the “Administrator”). Any power of the Committee may also be exercised by the Board. To the extent that any permitted action taken by the Board conflicts with action taken by the Committee, the Board action shall control.

(b)Powers and Duties of the Administrator. Subject to the express provisions of the Plan, the Administrator shall be authorized and empowered to do all things that it determines to be necessary or appropriate in connection with the administration of the Plan, including without limitation:

(i)to prescribe, amend and rescind rules and regulations relating to the Plan and to define terms not otherwise defined in the Plan;

(ii)to determine which persons are eligible to participate in the Plan;

(iii)to interpret and construe the Plan and any rules and regulations under the Plan, and to make exceptions to any such provisions if the Administrator, in good faith, determines that it is appropriate to do so;

(iv)to decide all questions concerning the Plan and to determine all ambiguities, inconsistencies and omissions in the terms of the Plan;

(v)to appoint such agents, counsel, accountants, consultants and other persons as may be required to assist in administering the Plan;

(vi)to allocate and delegate its responsibilities under the Plan and to designate other persons to carry out any of its responsibilities under the Plan;

(vii)where applicable, determine when an action taken under the Plan becomes administratively practicable;

(viii)to prescribe and amend such forms as may be necessary or appropriate for Eligible Employees to make elections under the Plan or to otherwise administer the Plan; and

(ix)to do such other acts as it deems necessary or appropriate to administer the Plan in accordance with its terms, or as may be provided for or required by law.

(c)Determinations by the Administrator. All decisions, determinations and interpretations by the Administrator regarding the Plan and any rules and regulations under the Plan shall be final and binding on all Participants, beneficiaries, heirs, assigns or other persons holding or claiming rights under the Plan. The Administrator shall consider such factors as it deems relevant, in its sole and absolute discretion, in making such decisions, determinations and interpretations, including the recommendations or advice of any officer or other employee of the Company and such attorneys, consultants and accountants as it may select. Members of the Board and members of the Committee acting in their capacity as Administrator under the Plan shall be fully protected in relying in good faith upon the advice of counsel.

(d)No Liability of Committee or Board Members. No member of the Committee or the Board shall be personally liable by reason of any contract or other instrument executed by such member or on his or her behalf in his or her capacity as a member of the Committee or the Board nor for any mistake of judgment made in good faith, and the Company shall indemnify and hold harmless each member of the Committee and the Board and each other employee, officer or director of the Company to whom any duty or power relating to the administration or interpretation of the Plan may be allocated or delegated, against any cost or expense (including counsel fees) or liability (including any amount paid in settlement of a claim) arising out of any act or failure to act in connection with the Plan unless arising out of such person’s own fraud or willful bad faith; provided, however, that approval of the Board shall be required for the payment of any amount in settlement of a claim against any such person. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Company’s Certificate of Incorporation or Bylaws, as a matter of law, any contract with the Company, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.