Blueprint





 







SEPARATION AGREEMENT AND GENERAL
RELEASE


 


As set
forth in this SEPARATION AGREEMENT AND GENERAL RELEASE (this
“Agreement”) and in
exchange for the consideration specified herein provided by
MobileSmith, Inc, a Delaware Corporation (the “Company”), and Bob
Dieterle (“Employee,” together the
“Parties”) agrees as
follows:


 




1.   
Company.  The term "Company" as used herein means and
encompasses any one and/or all of the following: (a) MobileSmith,
Inc. a Delaware corporation, and any subsidiary, parent company,
associated entity, affiliated entity, related entity, or division
thereof, now or previously existing or hereafter created; and (b)
any current or former owner, officer, director, board member,
trustee, agent, shareholder, representative, attorney, employee,
successor, assign, or employee benefit or welfare program or plan
(including the administrators, trustees, and fiduciaries of such
program or plan) of an entity encompassed by subparagraph
1(a).










2.    Payment.  In exchange for
Employee's execution of this Agreement, the Company will pay
Employee consideration as follows:






 


a.   
An aggregate amount of $90,000, less
applicable withholdings and deductions that are required by law,
which amount represents six months’ pay at
Employee’s most recent base
salary. Employee’s Severance will be paid in six equal
installments (each a “Severance Payment”) to be
paid pursuant to the Company’s regular month-end payroll
practices, the first of which will be paid in the next month-end
payroll after the Effective Date of this Agreement (such period
during which Severance Payments are owed, the “Severance
Period”).


 


b.   
If the Employee timely elects continued health care coverage under
COBRA, the Company will pay the full amount of the Employee’s
COBRA premiums necessary to continue the Employee’s coverage
(“COBRA
Premiums”) through the period (the “COBRA Premium Period”)
starting on the Separation Date and ending on the earliest to occur
of: (i) the end of the Severance Period (6 months), or (ii) the
date the Employee and any eligible dependents, if applicable,
become eligible for group health insurance coverage through a new
employer; or (iii) the date the Employee ceases to be eligible for
COBRA continuation coverage for any reason, including plan
termination. The Company will provide payment directly to the
insurance company (Blue Cross Blue Shield of North Carolina). In
the event the Employee becomes covered under another
employer’s group health plan or otherwise ceases to be
eligible for COBRA during the COBRA Premium Period, the Employee
must immediately notify the Company of such event. A breach of this
Agreement to make immediate notification shall result in the
Employee returning all but One Dollar of all payments made under
this paragraph. Together with the Severance Payment referenced in
subparagraph 2(a), these payments are referred to generally herein
as the “Severance.”


 


c.   
Employee acknowledges and agrees that Employee was not otherwise
entitled to this Severance, and
that these benefits are being given as consideration in exchange
for Employee executing this Agreement and the general release
contained herein. Employee further acknowledges that Employee is
not entitled to any additional payment or consideration not
specifically referenced in this Agreement. Nothing in this
Agreement shall be deemed or construed as an express or implied
policy or practice of the Company to provide these or other
benefits to any individuals other than Employee. The Company makes
no representations or warranties with respect to the tax
consequences of Employee’s Severance provided to Employee
under this Agreement. Employee agrees and understands that he is
responsible for payment, if any, of federal, state, or local taxes
on Employee’s Severance, as well as for any penalties or
assessments thereon. Employee further agrees to indemnify and hold
Company harmless from any claims, demands, deficiencies, penalties,
interest, assessments, executions, judgments, or recoveries against
Company for any amounts claimed due on account of Employee’s
failure to pay or delayed payment of federal, state, or local
taxes, or Employee’s treatment, handling, or other
disposition of Employee’s Severance, and for all damages
sustained by Company by reason of any such claims, including
attorneys’ fees and costs.


 


3.    General Release and Covenant
Not to Sue.


 

a. Employee
releases Company from any and all claims, demands, actions, or
causes of action, known or unknown, arising or occurring at any
time up to and through the Effective Date of this Agreement
(hereinafter, the
“Claims
Released”),
including but not limited to any claims which arise out of or are
related in any way to his employment with, or separation of
employment from, Company, and any claims for attorneys’ fees. The
Claims Released include, but are not limited to, any claims which
arise under federal, state, or local law, statute, regulation,
constitution, or common law for discrimination, including but not
limited to any claims for breach of employment contract, harassment
(sexual or otherwise), wrongful discharge, constructive discharge,
retaliation, fraud, misrepresentation, defamation, violation of
public policy, intentional infliction of emotional distress,
invasion of privacy, interference with contract rights or
opportunities, negligent and/or wanton supervision, and any other
claims of breach of contract or tort, including but not limited to
any claim pursuant to Title VII of the Civil Rights Act of 1964,
the Americans with Disabilities Act, the Equal Pay Act, the Lilly
Ledbetter Fair Pay Act, the Occupational Safety and Health Act, the
Employee Retirement Income Security Act, the North Carolina
Retaliatory Employment Discrimination Act, the North Carolina Equal
Employment Practices Act, and the North Carolina Persons with
Disabilities Protection Act.


 

b. Employee
agrees he will not, and will not allow
anyone acting in his name and/or on his behalf to, file, or join in any lawsuit against
Company on the basis of the
Claims Released, and further agrees
any such lawsuit would be null, void, and appropriate for immediate
withdrawal and/or dismissal. Employee waives any right to,
and agrees not to accept, any resulting award should such lawsuit
be filed by anyone else in his name and/or on his
behalf.


 

c. Employee agrees
that he will not knowingly encourage, counsel, or assist any
attorneys or their clients in the presentation, prosecution, or
defense of any disputes, differences, grievances, claims, charges,
or complaints between any third party and Company and/or involving
Company (hereinafter, “Third-Party Complaints”),
unless under a subpoena or other court order to do so. Employee
agrees both to immediately notify Company upon receipt of any such
subpoena or court order, and to furnish to Company, within three
(3) business days of its receipt, a copy of such subpoena or
other court order. If approached by anyone for counsel or
assistance in the presentation, prosecution, or defense of any
Third-Party Complaints, Employee shall state no more than that he
cannot provide counsel or assistance. Employee agrees that the
restrictions imposed in this paragraph 3(c) shall include, but not
be limited to, serving as an expert witness in any legal proceeding
for a party adverse to Company, and to encouraging, counseling, or
assisting, in any manner, any stockholder, group of stockholders,
or advisors thereto, in an effort to influence any decisions,
actions, or policies of Company.


 

d. Notwithstanding
anything suggested anywhere in this Agreement to the contrary,
nothing in this Agreement shall be construed to: (i) interfere with
the Employee’s rights under Section 7 of the National Labor
Relations Act; (ii) limit
Employee's ability to file a charge or complaint with the Equal
Employment Opportunity Commission, the National Labor Relations
Board, the Occupational Safety and Health Administration, the
Department of Labor, the Securities and Exchange Commission or any
other federal, state or local governmental agency or commission
(“Government
Agencies”).
Employee further understands that this Agreement does not limit
Employee’s ability to communicate with any Government
Agencies or otherwise participate in any investigation or
proceeding that may be conducted by any Government Agency,
including providing documents or other information, without notice
to the Company. This Agreement does not limit Employee's right to
receive an award for information provided to any Government
Agencies; (iii) as further confirmed in Section 7 below, to waive or
compromise any claims under the Fair Labor Standards Act
(“FLSA”); (iv) waive any
claims arising after the date of execution of this Agreement,
including but not limited to claims for breach of this Agreement;
or (v) to release any claims that may not be released as a matter
of law, such as claims for unemployment or workers’
compensation. Employee agrees to waive his right to recover
monetary damages or individual relief in any charge, complaint, or
lawsuit filed by him or by anyone else in his name and/or on his
behalf in relation to any rights he retains at the Equal Employment
Opportunity Commission, the National Labor Relations Board, or the
Department of Labor.


 


4.    Company
Property.


 

a. Employee has
assigned by virtue of his employment with the Company and does
hereby assign all writings, works of authorship, technology,
inventions, know-how, discoveries, ideas, processes, formulas,
strategies, and other work product of any nature whatsoever, that
were created, prepared, produced, authored, edited, amended,
conceived, or reduced to practice by the Employee individually or
jointly with others during the period of Employee’s
employment by the Company and relating in any way to the business
of the Company, research or development of the Company, and all
printed, physical, and electronic copies, all improvements, rights,
and claims related to the foregoing, and other tangible embodiments
thereof as well as any and all Proprietary Rights therein including
all pending and future applications and registrations therefor, and
continuations, divisions, continuations-in-part, reissues,
extensions, and renewals, both domestic and foreign, solely and
exclusively to the Company.
 Employee acknowledges that all original works of
authorship which were made by Employee (solely or jointly with
others) within the scope of Employee’s employment by the
Company and which are protectable by copyright are “works
made for hire,” pursuant to United States Copyright Act (17
U.S.C., Section 101). The term “Proprietary
Rights” shall mean all trade secret,
patent, copyright, trademark, mask work, and other intellectual
property rights throughout the world, including the right to sue
for past and future infringements. Employee shall, at
Company’s request and expense, assist Company in the
preparation and prosecution of any related patent and copyright
application and shall execute all documents deemed necessary by the
Company for the filing thereof and/or the vesting in the Company of
all title thereto.


 

b. Employee
certifies as a condition of the
Company’s obligation to
pay any Severance Payment hereunder, Employee has first returned to Company all
Company-owned documents (including
copies) and property in his possession or control.
“Company-owned documents” include, but are not limited to, any
writings, contracts, records, files, tape recordings,
correspondence, photographs, communications, summaries, data,
notes, memoranda, diskettes, or any other sources containing
information which relates to or references Company
and which was provided by
Company or obtained by the
Employee as a result of
Employee’s employment
with Company. Employee
further certifies he has not made
copies of Company-owned documents for any purpose other than performing his job
duties while employed at Company. Employee also certifies that he has returned all
Company owned property, including but
not limited to his, computer, keys and has provided all passwords
and usernames, as requested in his termination
meeting.


 

5.    Representation of No Wrongful
Conduct. Employee
represents and warrants that he has not engaged in any activity
which would constitute wrongful conduct, including, but not limited
to, fraud, material misrepresentation, violation of any federal,
state, or local law, or any conduct contrary to Company’s
existing policies.


 

6.    Cooperation. Prior to and after the
Effective Date, Employee agrees he will reasonably and lawfully
assist Company in the protection of Company’s interests. By
way of example only, Employee agrees he will cooperate with
Company: (a) concerning requests for information about the
business of Company and/or his involvement and participation
therein; (b) in connection with any investigation or review by
Company and/or any federal, state, or local regulatory,
quasi-regulatory, or self-governing authority (including, without
limitation, the Securities and Exchange Commission) as any such
investigation or review relates to events or occurrences that
transpired while Employee was employed by Company; (c) in the
defense and/or investigation of any Third-Party Complaints, whether
actual or threatened; and (d) with respect to transition and
succession matters. Employee’s cooperation shall include, but
not be limited to meeting and speaking with officers, employees, or
attorneys of Company at reasonable times and locations, executing
accurate and truthful documents, participating as a witness in any
litigation, arbitration, hearing, or other proceeding, and taking
such other actions as may reasonably be requested by Company to
effectuate the foregoing. Upon receipt by Company of suitable
documentation, Company will reimburse Employee for all reasonable
and necessary travel and other expenses which Employee may incur at
the specific request of Company and as approved by Company in
advance.


 


7.    Wages Paid in
Full. Employee
acknowledges that his last day of work with Company is May 29, 2018
(the “Separation
Date”). The
Company will continue to
provide Employee with wages
through May 29, 2018,
regardless of whether Employee executes this Agreement. All final wages earned, including any earned
bonuses and accrued but unused PTO, if any, will be paid as of
May 29, 2018. These amounts
will be paid on the Company’s next regularly scheduled payroll
date. The Company will provide Employee with all necessary
information needed for separating and/or continuing any benefits.
With these payments, Employee warrants that he does not claim and
has no claim he is owed any further wages for his service to
Company, including but not limited to overtime or commission, and
has no contention Company has denied his any rights under the FLSA
or the North Carolina Wage and Hour Act (NCWHA), Employee is not
waiving or compromising any claims under the FLSA but rather,
represents and warrants he has no FLSA or NCWHA claims against
Company. Employee further represents and warrants he has no
prospective claims against Company under the Family and Medical
Leave Act (“FMLA”) and thus, is not
waiving or compromising any prospective FMLA claims against
Company.


 


8.    Confidentiality;
Non-Interference.
Employee agrees not to disclose, reveal, or divulge to any third
person, firm, corporation, or entity information specific to Company’s business, confidential or otherwise, or allow any action
to be taken on his behalf to obtain such a disclosure that he
obtained during his employment, and will not provide information or
issue statements regarding Company. Employee further agrees not to contact or allow someone on
his behalf to contact Company in an attempt to obtain or share information
concerning Company’s business dealings.  These confidentiality and non-interference
covenants are subject to exception, to allow disclosure to the
extent required to enforce this Agreement, as required by law, or as to certain
individuals employed by Employee for legitimate business reasons
who may have a need to know (e.g., accountants, tax advisors,
financial advisors, or attorneys) to
whom the details may be disclosed on the condition that an
instruction will be made prior to disclosure, and an
agreement obtained, that the
information may not be disclosed outside the terms of this
provision. Employee agrees if
he is compelled by law to disclose any terms of this
Agreement, Employee
will immediately notify the CFO at
gleb.mikhailov@mobilesmith.com, phone number 919-237-4186, or via
writing at 5400 Trinity Rd., Suite 208, Raleigh NC, 27607.
In the event of a breach by Employee of these Confidentiality and
Restrictive Covenants, in addition to the Remedies set forth in
Section 11 below,
any and all portions of the Severance must be returned to the
Company.



 


9.   
Confidentiality of Company Information.


 




   
        a.    
Employee understands and acknowledges that during the course of
Employee’s employment by the Company, he has gained access to
and learned about confidential, secret, and proprietary documents,
materials, data, and other information, in tangible and intangible
form, of and relating to the Company and its businesses, employees,
and existing and prospective customers, suppliers, investors, and
other associated third parties (the “Confidential
Information”). The Employee further understands and
acknowledges that the Confidential Information and the
Company’s ability to reserve the Confidential Information for
the exclusive knowledge and use of the Company is of great
competitive importance and commercial value to the Company, and
that improper use or disclosure of the Confidential Information by
the Employee will cause irreparable harm to the Company, for which
remedies at law will not be adequate and may also cause the Company
to incur financial costs, loss of business advantage, and liability
under confidentiality agreements with third parties. For purposes
of this Agreement, “Confidential Information” includes,
but is not limited to, all information regarding the Company and
its business not generally known to the public, in spoken, printed,
electronic or any other form or medium, including such information
relating directly or indirectly to: business processes, practices,
policies, plans, operations, services, strategies, transactions,
potential transactions, negotiations, and pending negotiations;
trade secrets; sources of material; supplier or vendor
information/lists; financial information; pricing information;
design information; revenue; costs; product plans, designs or
specifications; customer information or lists of the Company or its
businesses or of any other person or entity that has entrusted
information to the Company in confidence. The Employee understands
that the above list is not exhaustive, and that Confidential
Information also includes other information that is or was marked
or otherwise identified as confidential or proprietary, or that
would otherwise appear to a reasonable person to be confidential or
proprietary in the context and circumstances in which the
information is or was known or used. The Employee understands and
agrees that any Confidential Information which was developed by him
in the course of his employment by the Company shall be subject to
the terms and conditions of this Agreement as if the Company
furnished the same Confidential Information to the Employee in the
first instance.




 

b. Confidential
Information shall not include information that is generally
available to and known by the public, provided that such disclosure
to the public is through no direct or indirect fault of the
Employee or person(s) acting on the Employee’s behalf. Under
the Defend Trade Secrets Act of 2016, Employee will not be held
criminally or civilly liable under any federal or state trade
secret law for the disclosure of a trade secret that is made in
confidence to a federal, state, or local government official or to
an attorney solely for the purpose of reporting or investigating a
suspected violation of law. Employee will not be held criminally or
civilly liable under any federal or state trade secret law for the
disclosure of a trade secret that is made in a complaint or other
document filed in a lawsuit or other proceeding, if such filing is
made under seal. Further, if Employee files a lawsuit for
retaliation for reporting a suspected violation of law, then
Employee may disclose the trade secret to Employee’s attorney
and use the trade secret information in a court proceeding, if
Employee files any document containing the trade secret under seal
and does not disclose the trade secret, except pursuant to court
order.


 

c. The Employee agrees
and covenants: (i) to treat all Confidential Information as
strictly confidential; (ii) not to directly or indirectly disclose,
publish, communicate, or make available Confidential Information,
or allow it to be disclosed, published, communicated, or made
available, in whole or part, to any entity or person whatsoever not
having a need to know and authority to know and use the
Confidential Information in connection with the business of the
Company and, in any event, not to anyone outside of the direct
employ of the Company except as was required in the performance of
the Employee’s employment duties to the Company, as allowed
or required by this Agreement, and only with the prior consent of
an authorized officer acting on behalf of the Company in each
instance; and (iii) not to access or use any Confidential
Information, and not to use, disclose, or copy any documents,
records, files, media, or other resources containing any
Confidential Information, or remove any such documents, records,
files, media, or other resources from the premises or control of
the Company, except as was required in the performance of the
Employee’s authorized employment, as described, allowed, or
required by this Agreement, or with the prior consent of an
authorized officer acting on behalf of the Company. Nothing herein
shall be construed to prevent disclosure of Confidential
Information as may be required or permitted by applicable law or
regulation, or pursuant to the valid order of a court of competent
jurisdiction or an authorized Government Agency, provided that such
disclosure does not exceed the extent of disclosure required by
such law, regulation, or order. The Employee shall provide written
notice of any such order to an authorized officer of the Company
within three (3) days of receiving such order, but in any event
sufficiently in advance of making any disclosure to permit the
Company to contest the order or seek confidentiality protections,
as determined in the Company’s sole discretion.


 

d. The Employee
understands and acknowledges that his obligations under this
Agreement with regard to any particular Confidential Information
shall commence immediately and shall continue until such time as
such Confidential Information has become public knowledge other
than as a result of the Employee’s breach of this Agreement.
The terms of this Agreement do not change or otherwise modify the
duty of loyalty and any other duties of confidentiality Employee
owed to the Company during his employment.


 


10.    Restrictive Covenants. Employee agrees
and covenants that he will not, without the prior written consent
of the Company, engage in the following activities on
Employee’s own behalf, or on behalf of any other business or
entity, whether as an owner, consultant, or otherwise:


 

a. For a period of one
(1) year following the Effective Date, Employee will not directly
or indirectly Solicit, hire, recruit, attempt to hire or recruit,
or induce the termination of employment of any employee of the
Company with whom Employee worked in the twelve (12) months
immediately preceding the Separation Date. As used in this sub-paragraph, “Solicit” shall mean to recruit, cause, induce,
encourage, influence, interfere with, entice, call on, or otherwise
attempt to take business or
employees away from the Company.


 

b. For
a period of one (1) year following the Effective Date, and
applicable anywhere in the United States, Employee will not own,
manage, operate, control, participate in the ownership, operation,
or control of, or perform services (as an employee, consultant or
otherwise) comparable to the duties the Employee performed for the
Company during the twelve (12) months immediately preceding the
Separation Date, for any company competitive with the Business. The
parties agree, however, that the Employee’s ownership of any
stock or securities (not to exceed two (2) percent of any class of
stock or securities) of a corporation, which is a competitor of the
Company, will not be a violation of the foregoing restrictions.
As used in this subparagraph,
“Business” shall mean any business related to
creating, designing, customizing, coding, selling, servicing or
distributing mobile branded hospital applications for the
healthcare industry or conducting research or development with
regard thereto. For purpose of clarity, “Business”
shall not include individual hospitals or other medical
providers.


 

11.    Remedies. All terms, provisions, and conditions of
this Agreement were materially
bargained for by Company. Employee agrees Company would not have an adequate remedy at law and would
be irreparably harmed if the Employee were to breach any provision of this
Agreement, particularly the
Confidentiality of Company Information and Restrictive
Covenants. The Employee acknowledges and agrees that the
services he rendered were of a special and unique character; that
he held a position uniquely essential to the management,
organization or service of the Company; that he obtained knowledge
and skill relevant to the Company’s industry, methods of
doing business and marketing strategies by virtue of his
employment; and that the terms and conditions of this Agreement are
reasonable under these circumstances and that the terms of this
Agreement do not subject him to undue hardship. Employee
agrees that, in the event of a breach
by the Employee, Company will be entitled to equitable relief,
temporary or permanent injunctive relief, in addition to all other
damages and remedies available at law or in equity without
the necessity of showing any actual damages or that monetary
damages would not afford an adequate remedy, and without the
necessity of posting any bond or other security. The aforementioned
equitable relief shall be in addition to, not in lieu of, legal
remedies, monetary damages, or other available forms of relief.
The Employee and the Company
also agree that in any action or proceeding related to or arising
from this Agreement brought by either party against the other
party, the prevailing party shall be entitled to reasonable
attorneys’ fees and costs incurred in bringing or defending
said action or proceeding upon entry of a definitive judgment by a
court of competent jurisdiction.


 


12.    Forum and Construction. This Agreement
shall be construed pursuant to the laws of the State of North
Carolina, without giving effect to any choice or conflict of law
provision or rule (whether of the State of North Carolina or any
other jurisdiction). The venue for any action to enforce the terms
of this Agreement shall be in a state or federal court in Wake
County, North Carolina. This statement shall be read as a mandatory
venue selection clause. The language
of this Agreement shall be
construed as a whole, according to its fair meaning. Titles
and headings to paragraphs in this Agreement are for the purpose of
convenience of reference only and shall in no way limit, define, or
otherwise affect the provisions hereof.  Any modification of this Agreement
shall be ineffective unless in writing
signed by the party against whom it is enforced. This
Agreement shall be binding upon
the Employee’s successors
and assigns, as well as Company’s successors and assigns. No waiver of any
breach of any term of this Agreement shall be a waiver of any other breach of
this Agreement.


 

13.    Severability.
Should any portion of
Section
3 hereof
be determined unenforceable for any
reason, Employee shall return
to Company, within thirty (30)
days of such finding, any Severance provided to
Employee, and all remaining
obligations imposed by this Agreement shall terminate immediately. Except as immediately
stated otherwise, the provisions of this Agreement
are severable and divisible, and the
invalidity of any provision shall not affect or limit the
enforceability of the remaining provisions.


 


14.    No
Admission. Nothing
in this Agreement constitutes an acknowledgment or admission of
liability or wrongdoing by Company. Company specifically denies
having engaged in any unlawful or wrongful act or omission but
enters into this Agreement to provide the Employee with
transitional assistance in the form of the Severance Payment
provided by this Agreement, and to otherwise confirm the amicable
termination of the employment
relationship on mutually acceptable terms. This Agreement
shall not be construed to render the Employee a “prevailing
party” under any law, order, or regulation allowing
attorneys’ fees or costs to a party who
“prevails” in any manner or sense.


 


15.    Tax Liability; Section 409(a) of the
IRC. All payments made pursuant to this Agreement will be
reported to the IRS. The Company expresses no opinion concerning
the allocation or taxability of these payments. Employee
acknowledges that, to the extent that Employee may incur any
additional tax liability as a result of the payments made to him
under this Agreement, such liability is his sole responsibility.
Employee is hereby advised to seek
professional tax advice. This Agreement is intended to comply
with Section 409A of the Internal Revenue Code of 1986, as
amended (Section 409A) or an exemption thereunder and shall be
construed and administered in accordance with Section 409A.
Notwithstanding any other provision of this Agreement, payments
provided under this Agreement may only be made upon an event and in
a manner that complies with Section 409A or an applicable
exemption. Any payments under this Agreement that may be excluded
from Section 409A either as separation pay due to an
involuntary separation from service or as a short-term deferral,
and shall be excluded from Section 409A to the maximum extent
possible. Any payments to be made under this Agreement upon a
termination of employment shall only be made upon a
“separation from service” under Section 409A.
Notwithstanding the foregoing, the Company makes no representations
that the payments and benefits provided under this Agreement comply
with Section 409A and in no event, will the Company be liable
for all or any portion of any taxes, penalties, interest, or other
expenses that may be incurred by Employee. To the extent necessary,
each Severance Payment should be considered an
“installment” pursuant to Section 409(a) of the
IRC.


 


16.     Effective Date. Employee
certifies that he has been given the opportunity to review and
consider the terms of this Agreement through 5:00 p.m. EST on June
1, 2018, although Employee may accept the terms of this Agreement
at any time prior to June 1, 2018. Employee certifies that this
Agreement is entered into knowingly and voluntarily and that the
Severance is made without any pre-existing obligation by the
Company, and that he understands that the terms of this Agreement
will become legally binding, effective and irrevocable the date
this Agreement is signed. Employee may accept this Agreement by
returning a signed original, either in person, by e-mail or by
facsimile to the Company’s CFO at gleb.mikhailov@mobilesmith.com, phone number
919-237-4186, or via writing at 5400 Trinity Rd., Suite 208,
Raleigh NC, 27607. Employee received this Agreement on May
29, 2018.


 


17.     Mutual
Non-Disparagement. Each Party agrees and covenants that it
shall not at any time make, publish or communicate to any other
person or entity or in any public forum, any defamatory or
disparaging remarks, comments, or statements concerning either
Party or concerning either Party’s current or future
businesses, Companies, affiliations, name or likeness, Company
operations, services, employees, agents, owners, directors or
officers. This Section will survive the termination of this
Agreement for any reason and should not be read to prevent Employee
from exercising any rights she may have under the National Labor
Relations Act, or any other State, Federal or Local
law.


 


18.    Acknowledgments. Employee
understands, in addition to the acknowledgments in Section 16 above, that he will
bear his own costs, attorneys’ fees, and other fees incurred
in connection with the preparation of this Agreement, as will
Company bear its own costs, attorneys’ fees, and other fees
related to same; and understands this Agreement releases and waives
known and unknown claims and has other important legal
consequences. Employee further acknowledges no other promises,
agreements, or representations, or explanations of any kind have
been made to him by Company to cause him to agree to or sign this
Agreement. Employee acknowledges that this Agreement and/or the end
of Employee’s employment may affect and/or trigger
Employee’s rights to exercise any and/or all of his stock
options pursuant to his options contract dated March 10, 2010 to
acquire 75,000 shares of the Company stock and options contract
dated November 21, 2016 to acquire 175,000 shares of the Company
stock, which are separate and apart from this Agreement.
acknowledges and that Employee has read, knows, and understands the
entire contents of this Agreement, including its final and binding
effects. This Agreement contains the entire agreement between the
Employee and Company relating to their employment relationship and
the matters contemplated by this Agreement and fully supersedes any
prior agreements or understandings between the Employee and
Company, Employee acknowledges that he is signing this Agreement
knowingly and voluntarily of his own free will.


 


 



Employee’s
Signature:


 


	






	
 


	
 

	
 

	
 

	
 


	
June 1,
2018


	



	
/s/  Bob
Dieterle


	
 


	
 

	
 

	
Bob
Dieterle


	
 







 


	
 

	
 

	
 

	
 


	
June 1,
2018

	
By:  

	
/s/ 
Randy Tomlin


	
 


	
 

	
 

	
Randy
Tomlin


	
 


	
 

	
 

	
Board Chairman and
CEO, MobileSmith Inc.