SEPARATION AGREEMENT AND RELEASE

 

3.       If  Swisher's  Vice  President of  Human  Resources receives  any  requests for references regarding Cooper over the next two (2) years, she will respond by indicating that Cooper left to pursue other interests, and confmn only dates of employment, positions held and last rate of pay.

     4.         Swisher agrees for a period of three (3) years from execution of this Agreement it will not, and shall cause its officers and directors to not, make any disparaging statement to any third party regarding Cooper. A "disparaging statement" is defined for purposes of this Agreement as any communication, written or oral, including any posting to a website or Internet blog, which would reasonably cause an objective recipient to call into question the integrity, ethics, morals, professionalism, business acumen, business reputation, goodwill, or good character of the party being discussed; provided, however, that (i) nothing herein is intended to impede any member of the Swisher's  Board from faithfully performing his or her duties and obligations as a member of such board and any truthful statement in his or her capacity as such board member shall not be deemed to be a "disparaging statement" and (ii) nothing herein is intended to impede open communication between members of the Swisher's Board or between members of the Swisher's Board and senior executive officers of Swisher or its affiliates. Notwithstanding the foregoing provisions of this section to the contrary, nothing in this paragraph shall prevent any person from (i) responding publicly to incorrect, disparaging or derogatory public statements to the extent reasonably necessary to correct or refute such public statement or (ii) making any truthful statement to the extent necessary with respect to any litigation, arbitration, proceeding or investigation involving any agreement between or among the parties or required by law or by any court, arbitrator or administrative or legislative body (including any committee thereof) with apparent or actual jurisdiction to order such person to disclose or make accessible such information.

     1.        Cooper, for  himself, his  heirs,  executors, and  assigns,  releases, and  forever discharges Swisher International Inc., Swisher Hygiene Inc., Swisher Hygiene USA, Inc., HB Services, LLC, and all of their subsidiaries and related corporations, including but not limited to their officers, directors, employees, shareholders, advisors, agents and assigns, from any and all claims, of whatever nature, legal, equitable, or administrative,  including, but not limited to, claims arising out of his employment with, or separation from the company, arising before the date of execution. This Agreement specifically includes, but is not limited to, any and all claims arising under the Age Discrimination  in Employment  Act, as well as any other claims under federal, state, or local statutes, the common law, public policy, ordinances or equity, to include any claims under the North Carolina Wage and Hour Act.   Cooper agrees that this release includes any claim he may have, including claims of which he may not presently be aware. Cooper further agrees that his/her violation of the terms of this section shall entitle the parties released to recover from Cooper attorney fees and costs reasonably incurred in having to respond and defend against such claims and/or charges.   Notwithstanding anything in this Agreement to the contrary, Cooper does not release, discharge or waive any rights to (i) his vested equity compensation or any of his other equity interest in Swisher and its affiliates, with the exception that he waives rights to unvested stock options and unvested restricted stock units, (ii) benefit or ERISA claims under any employee benefit plans in which Cooper was a participant by virtue of his prior employment with Swisher arising before the Effective Date, (iii) rights as a shareholder of Swisher Hygiene Inc., and (iv) rights to be indemnified and/or advanced expenses under any applicable corporate document of Swisher or its affiliates, any applicable agreement or pursuant to applicable law or to be covered under any applicable directors' and officers' liability insurance policies.

 

     2.         Cooper waives any right to recover in any proceeding that results from a charge or action filed on his behalf by a state or federal administrative  agency.   Cooper represents  and warrants that no such claims or charges have been filed and/or initiated to date.