Employment Agreement, dated as of August 28, 2023, between the Company and Joshua DeTillio

Exhibit 10.1

EMPLOYMENT AGREEMENT

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THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of the 28th day of August, 2023, by and between Nutex Health, Inc., a Delaware corporation (the “Company”), and Joshua DeTillio, (the “Employee”), each individually a “Party” and collectively the “Parties”. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

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any Renewal Term are referred to herein collectively as the “Term”.

may be taken at such times and intervals as shall be agreed to by Company and the Employee in their reasonable discretion after ninety (90) days of employment.  The Employee may at his/her option elect to carry over a maximum of five (5) days at the end of the year into the next year.  Otherwise, any accrued and unused PTO shall be paid in cash at the end of a fiscal year.

Employee’s employment for Cause, which notice specifies in reasonable detail the circumstances claimed to give rise to the Company’s right to terminate the Employee’s employment for Cause and the Employee shall not have cured such circumstances to the extent such circumstances are reasonably susceptible to cure as determined by the Board in good faith within thirty (30) days following the Company’s delivery of such notice.  For avoidance of doubt, “Cause” shall not include (w) below par or below average operational performance, in and of itself; (x) expense reimbursement disputes in which the Employee acts in reasonably good faith; (y) occasional, customary and de minimis use of the Company’s property for personal purposes; and (z) acting in good faith upon advice of Company’s legal counsel.

unpaid Base Salary or Annual Bonus for services rendered through the Date of Termination, unpaid expense reimbursements, and accrued but unused paid time off (the “Accrued Benefits”) within thirty (30) days.  The unpaid Annual Bonus pursuant to this Paragraph 5(a) will be any bonus earned from the prior calendar year, but not yet paid, plus a pro rata amount of the Annual Bonus in Paragraph 3(b) for the year in which Employee is terminated.  With respect to vested compensation or benefits the Employee may have under any employee benefit or compensation plan, program or arrangement of the Company, payment will be made to the Employee under the terms of the applicable plan, program, or arrangement.

6. Confidential Information, Non-solicitation, and Cooperation.

directly, or indirectly through one or more intermediaries, is controlled by or is under common control with such Person, or (iii) any other Person of which such Person owns, directly or indirectly, fifty percent (50%) or more of the common stock or equivalent equity interests. As used herein, the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or otherwise.

(b)Confidential Information. As used in this Agreement, “Confidential Information” means information belonging to the Company or its Affiliates which is of value to the Company or any of its Affiliates in the course of conducting its business (whether having existed, now existing, or to be developed or created during Employee’s employment by Company) and the disclosure of which could result in a competitive or other disadvantage to the Company or its Affiliates. Confidential Information includes, without limitation, contract terms and rates; negotiating and contracting strategies; financial information, reports, and forecasts; inventions, improvements and other intellectual property; product plans or proposed product plans; trade secrets; designs, processes or formulae; software; market or sales information, plans or strategies; employee, customer, patient, provider and supplier information; information from patient medical records; financial data; insurance reimbursement methodologies, strategies and practices; product and service pricing methodologies, strategies and practices; contracts with physicians, providers, provider networks, payors, physician databases and contracts with hospitals; regulatory and clinical manuals; and business plans, prospects and opportunities (such as possible acquisitions or dispositions of businesses or facilities) that have been discussed or considered by the Company or its Affiliates, including, without limitation, the management of the Company or its Affiliates. Confidential Information includes information developed by the Employee in the course of the Employee’s employment by the Company, as well as other information to which the Employee may have access in connection with the Employee’s employment. Confidential Information also includes the confidential information of others with which the Company or its Affiliates has a business relationship. Notwithstanding the foregoing, Confidential Information does not include information in the public domain, unless due to breach of the Employee’s duties under Section 6(b), unless otherwise due to Employee’s breach of the obligations in this Agreement, or unless due to violation of another Person’s obligations to the Company or its Affiliates that Employee should have taken reasonable measures to prevent but that Employee did not take.

(c)Confidentiality. The Employee understands and agrees that the Employee’s employment creates a relationship of confidence and trust between the Company and the Employee with respect to all Confidential Information. At all times, both during the Employee’s employment with the Company and after the Employee’s termination from employment for any reason, the Employee shall keep in confidence and trust all such Confidential Information, and shall not use, disclose, or transfer any such Confidential Information without the written consent of the Company, except as may be necessary within the scope of Employee’s duties with Company and in the ordinary course of performing the Employee’s duties to the Company or as otherwise provided in Section 6(d) below.  Employee understands and agrees not to sell, license, or otherwise exploit any products or services which embody or otherwise exploit in whole or in part any

Confidential Information or materials. Employee acknowledges and agrees that the sale, misappropriation, or unauthorized use or disclosure in writing, orally or by electronic means, at any time of Confidential Information obtained by Employee during or in connection with the course of Employee’s employment constitutes unfair competition. Employee agrees and promises not to engage in unfair competition with Company or its Affiliates, either during employment, or at any time thereafter.

(d) Business Associate Agreement.  Pursuant to this Employment Agreement, Employee and the Company agree to enter into the attached Exhibit C, “Business Associate Addendum,” related to the functions and activities Employer performs on behalf of the Company.

(e)Non-Compete.  Due to the Company’s legitimate business interest in protecting its confidential information and the good and valuable consideration offered to the Employee, Employee covenants and agrees that at all times during employment with the company and for the period expiring two (2) years after the date of termination, Employee shall not enter into or attempt to enter into employment or other financial arrangement under the same capacity as with the Employer with any company, venture or other direct competitor of the Company business model.

Company’s and its Affiliate’s business, and consistent with the Employee’s duties with the Company. The Employee further agrees that copies of Confidential Information shall be treated with the same degree of confidentiality as the original information and shall be subject to all restrictions herein.

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costs if it prevails in any action to enforce Section 6 of this Agreement. It is the express intention of the parties that the obligations of Section 6 of this Agreement shall survive the termination of the Employee’s employment. The Employee agrees that each obligation specified in Section 6 of this Agreement is a separate and independent covenant that shall survive any termination of this Agreement and that the unenforceability of any of them shall not preclude the enforcement of any other covenants in Section 6 of this Agreement. No change in the Employee’s duties or compensation shall be construed to affect, alter or otherwise release the Employee from the covenants herein.  

receive such disclosures in confidence and consistent with the objectives of avoiding any conflict of obligations and rights or the appearance of any conflict of interest.

(a)Limitation on Payments.  Notwithstanding anything to the contrary in Section 3 and Section 5 of this Agreement, if any payment or distribution that the Employee would receive pursuant to this Agreement or otherwise (“Payment”) would (a) constitute a “parachute

payment” within the meaning of Section 280G of the Code), and (b) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Payment are paid to the Employee, which of the following alternative forms of payment would maximize the Employee’s after-tax proceeds: (i) payment in full of the entire amount of the Payment (a “Full Payment”), or (ii) payment of only a part of the Payment so that the Employee receives that largest Payment possible without being subject to the Excise Tax (a “Reduced Payment”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the Employee’s receipt, on an after-tax basis, of the greater amount of the Payment, notwithstanding that all or some portion the Payment may be subject to the Excise Tax.  

(b)The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the date the first Payment is due shall make all determinations required to be made under this Section 19.  If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the transaction, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder.  The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder.

(c)The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Employee at such time as requested by the Company or the Employee.  If the independent registered public accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Payment, it shall furnish the Company and the Employee with an opinion reasonably acceptable to the Employee that no Excise Tax will be imposed with respect to such Payment.  Any good faith determinations of the accounting firm made hereunder shall be final, binding, and conclusive upon the Parties.

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[Signature Page Follows]

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IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the Company by its duly authorized officer, and by the Employee, as of the date first above written.

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EXHIBIT A

Release of Claims

I, Joshua DeTillio, in consideration of and subject to the performance by NUTEX HEALTH, INC., a Delaware corporation (the “Company”) of its obligations under the Employment Agreement, dated as of ___________ _, 20__ (as amended from time to time, the “Agreement”), do hereby release and forever discharge as of the date of my execution of this release (this “Release”) the Company, its affiliated and related entities, its and their respective predecessors, successors and assigns, its and their respective employee benefit plans and fiduciaries of such plans, and the current and former officers, directors, shareholders, employees, attorneys, accountants and agents of each of the foregoing in their official and personal capacities (collectively, the “Released Parties”) to the extent provided below.

I knowingly and voluntarily (on behalf of myself, my spouse, my heirs, executors, administrators, agents and assigns, past and present) fully and forever release and discharge the Company and the other Released Parties from any and all claims, suits, controversies, actions, causes of action, cross claims, counterclaims, demands, debts, liens, contracts, covenants, suits, rights, obligations, expenses, judgments, compensatory damages, liquid damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, orders and liabilities of whatever kind of nature, in law and in equity, in contract of in tort, both past and present (through the date this General Release becomes effective and enforceable) and whether known or unknown, vested or contingent, suspected, or claimed, against the Company or any of the Released Parties which I, my spouse, or any of my heirs, executors, administrators or assigns, may have, which arise out of or relate to my employment with, or my separation or termination from, the Company up to the date of my execution of this Release (including, but not limited to, any allegation, claim of violation arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Workers Benefit Protection Act), the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act of 1974; the Fair Labor Standards Act; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other local state or federal law, regulation or ordinance; or under any public policy, contract of tort, or under common law; or arising under any policies, practices or procedures of the Company; or any claim for wrongful discharge, breach of the Agreement, infliction of emotional distress or defamation; or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters) (collectively, the “Claims”).

Employee agrees that this Agreement is intended to include all claims, if any, that Employee may have against the Company, and that this Agreement extinguishes those claims.

enforced in such jurisdiction as if such invalid, illegal or unenforceable provisions had never been contained herein.

BY SIGNING THIS RELEASE, I REPRESENT AND AGREE THAT:

DATED AS OF ________, 20__

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EXHIBIT B

Employment Agreement Addendum

It is the philosophy of Nutex Health, Inc. that an experienced operational leader as Chief Operating Officer (“COO”) is critical to the Company’s ability to continue to deliver on its proposition while simultaneously achieving maximum growth potential.  Reporting directly to the Chief Executive Officer (“CEO”) and President, he is charged with strengthening the overarching operational structure and enhancing the cross-functional, end-to-end processes to ensure a highly efficient, effective, and scalable operating infrastructure to support the company’s continuous growth and mounting complexity.  The COO will partner with the CEO, the President, the Board of Directors, other Company Officers, physician partners, the care delivery teams, and the rest of the executive team to successfully grow and manage the explosive growth of business.  The COO will ensure strong controls, sound implementation of operational priorities and greater discipline while at the same time, supporting an effective culture rooted in accountability and patient care.

KEY RESPONSIBILITIES:

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strategic plan for operating in a dynamic growth environment including long- and short-term operating objectives and clear accountability metrics.

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EXHIBIT C

Business Associate Agreement

THIS HIPAA BUSINESS ASSOCIATE ADDENDUM (the “Addendum”) is entered into as of the ____  day of ____________ 2023, by and between­ Nutex Health, Inc., a Delaware company (the “Covered Entity”), and Joshua DeTillio (the “Business Associate”), and adds the same to the Employment Agreement between the Business Associate and Covered Entity dated _______________, 2023 (the “Agreement”), and shall become effective  on the Commencement Date, as defined in the Agreement.

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Pursuant to the Agreement, Business Associate may perform functions or activities on behalf of Covered Entity involving the use and/or disclosure of protected health information received from, or created or received by, Business Associate on behalf of Covered Entity (“PHI”) and/or in the furtherance of his /her responsibilities under the Agreement. Therefore, Business Associate and Covered Entity will comply with the terms of this Addendum for the duration of the Agreement and for such other continuing periods as provided in this Addendum.

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1. Definitions

“HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164 of the Health Insurance Portability and Accountability Act of 1996 and any amendments or implementing regulations (“HIPAA”), or the Health Information for Economic and Clinical Health Act (Title XIII of the American Recovery and Reinvestment Act of 2009) and any amendments or implementing regulations (“HITECH”). Unless otherwise provided, all capitalized terms in this Addendum will have the same meaning as provided under HIPAA Rules.

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2. Obligations and Activities of Business Associate

Business Associate agrees to:

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(a) Comply with, at all times, applicable HIPAA Rules;

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(b) Not use or disclose PHI other than as permitted or required by the Addendum or as required by law;

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(c) Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI, to prevent use or disclosure of PHI other than as provided for by the Addendum;

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(d) Mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate in violation of this Addendum;

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(e) Report to Covered Entity any use or disclosure of PHI not provided for by the Addendum of which it becomes aware, including breaches of unsecured PHI as required at 45 CFR 164.410, and any security incident of which it becomes aware;

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(f) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of the Business Associate

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agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;

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(g) Make available PHI in a designated record set to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524;

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(h) Make any amendment(s) to PHI in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526;

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(i) Maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528;

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(j) To the extent the Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and

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(k) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

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3. Permitted Uses and Disclosures by Business Associate

(a) Business Associate may only use or disclose PHI as necessary to perform the services set forth in the Agreement.

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(b) Business Associate may use or disclose PHI as required by law.

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(c) Business Associate agrees to make uses and disclosures and requests for PHI consistent with Covered Entity’s minimum necessary policies and procedures.

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(d) Business Associate may not use or disclose PHI in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity except for the specific uses and disclosures set forth below.

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(e) Business Associate may use PHI for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.

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(f) Business Associate may disclose PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of the Business Associate, provided the disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

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(g) Business Associate may provide data aggregation services relating to the health care operations of the Covered Entity.

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4. Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions

(a) Covered Entity shall notify Business Associate of any limitation(s) in the notice of privacy practices of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.

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(b) Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.

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(c) Covered Entity shall notify Business Associate of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI.

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5. Termination

(a) Termination for Cause.  Covered Entity shall provide Business Associate with written notice of Business Associate’s breach of any term or condition of this Addendum, and afford Business Associate the opportunity to cure the breach to the satisfaction of Covered Entity within forty-five (45) days of such notice.  If Business Associate fails to cure the breach, as determined by Covered Entity, the Agreement will terminate as provided in Covered Entity’s notice.

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(b) Obligations of Business Associate Upon Termination.  Upon termination of this Addendum for any reason, Business Associate shall destroy all PHI received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, that the Business Associate still maintains in any form.  Business Associate shall retain no copies of the PHI.

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(c) Survival.  The obligations of Business Associate under this Section shall survive the termination of this Addendum.

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[Signatures to follow]

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IN WITNESS WHEREOF, the parties have caused this Business Associate Addendum to be executed by their duly authorized representatives, on the date and year first above written.

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