Exhibit 6.23
BIOFIELD CORP.
1225 NORTHMEADOW PARKWAY
SUITE 120
ROSWELL, GEORGIA 30076
June 5, 1998
Mark L. Faupel, Ph.D.
Dear Dr. Faupel:
We are writing to confirm the understanding with respect to certain
arrangements between you and Biofield Corp. (the "Company"), as follows:
1. Pursuant to paragraph 13(c) of the Employment Agreement between you and
the Company dated October 1, 1992, as amended (the "Employment Agreement"), you
have certain continuing obligations to provide services to the Company with
respect to the matters described therein. Said paragraph 13(c) provides, inter
alia, that if such services are rendered subsequent to your employment by the
Company, the Company will include in amounts reimbursed to you thereunder a
reasonable payment for your time. You and the Company have agreed that payments
at the rates set forth on Schedule I hereto shall constitute reasonable payments
to you for services rendered pursuant to paragraph 13 (c) of the Employment
Agreement.
2. In addition to the services referred to in paragraph 1 above, the
Company may, from time to time, request that you render other consulting or
advisory services to the Company in connection with the Company's ongoing
business. Such services may include, without limitation, review of articles for
publication, or consultation and advice regarding clinical, regulatory or
product development matters . In the event that you agree to render any services
at the request of the Company as provided in this paragraph 2, such services
shall be provided by you to the Company at mutually convenient times, taking
into account both the needs of the Company and your other activities and
commitments. You will be compensated at the rates set forth on Schedule I hereto
for any services rendered at the request of the Company pursuant to this
paragraph 2.
3. Except as provided in paragraph 13 (c) of the Employment Agreement,
you shall not be under any obligation to render consulting or advisory services
to the Company.
4. Payments due to you as set forth in this letter shall be remitted by
the Company within 10 days of receipt of an appropriate invoice from you.
5. In providing consulting and advisory services to the Company, you may
acquire confidential information. All such confidential information shall be
subject to the terms of the Employee Non-Disclosure and Secrecy Agreement
between you and the Company dated as of October 1, 1992, which agreement is
hereby incorporated by reference into this letter.
If the foregoing accurately sets forth our understanding with respect to the
matters discussed herein, please sign a copy of this letter in the space
provided below and return it to the Company.
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BIOFIELD CORP.
By: MICHAEL R. GAVENCHAK
--------------------------------
Executive Vice President
General Counsel
ACCEPTED AND AGREED
this 9th day of June, 1998
MARK L. FAUPEL
-----------------------------------
Mark L. Faupel, Ph.D
SCHEDULE I
During calendar year 1998 you shall be compensated at the rate of $150.00
per hour. Each year thereafter, commencing January 1, 1999, the hourly rate
shall be increased by an amount equal to the percentage increase (if any) during
the immediately preceding calendar year in the Consumer Price Index for all
Consumers, as published by the United States Department of Labor, Bureau of
Labor Statistics.
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SEPARATION AGREEMENT
AGREEMENT made as of June 5,1998 by and between Mark L. Faupel
("EMPLOYEE." "YOU"or "YOUR") and Biofield Corp. ("BIOFIELD" or "WE" or "OUR").
RECITALS
WHEREAS, you and Biofield entered into an employment agreement, dated as
of October 1, 1992, as amended by Addenda dated March 12, 1993, April 22, 1993
and December 9, 1993 (the "Employment Agreement");
WHEREAS, in connection with your employment by Biofield, you and Biofield
entered into a Non-Disclosure and Secrecy Agreement, dated as of October 1, 1992
(the "Secrecy Agreement"), and a Registration Rights Agreement, dated April 22,
1993 (the "Registration Rights Agreement");
WHEREAS, your employment by Biofield has terminated;
WHEREAS, you and Biofield desire to resolve any differences between you
and Biofield regarding the termination of your employment with Biofield;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth below, and intending to be legally bound, you and Biofield agree as
follows:
1. PAYMENTS AND BENEFITS: Biofield will provide you with the
following payments and benefits:
(a) a payment in the amount of $25,000, less benefit deductions, tax
withholding and other deductions required by law, in respect of salary deemed to
have been due to you in accordance with the Employment Agreement, said amount to
be paid to you immediately upon execution of this Agreement by all parties; and
(b) an additional payment in the amount of $10,000, of which $5,000
shall constitute an advance against any royalties that may, in the future,
become due to you under Section 9 of the Employment Agreement, said amount to be
paid to you immediately upon execution of this Agreement by all parties; and
(c) vesting of all of the stock options listed on Exhibit A hereto.
You acknowledge that the payments and benefits stated above will not
become due until this Agreement has been executed and delivered by both you and
Biofield.
2. WAIVER AND RELEASE: You hereby waive, release and forever discharge
Biofield and/or related persons from any and all claims, rights and liabilities
of every kind, which you ever had or may have arising out of the Employment
Agreement (except as provided in paragraph 4 of this Agreement) or the
termination of your employment with Biofield.
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3. CONFIDENTIALITY; NONDISPARAGEMENT: The parties shall keep the terms of
this Agreement confidential. The parties shall not at anytime talk about, write
about, discuss or otherwise publicize the terms or existence of this Agreement
to anyone other than your legal, tax or other financial advisors or immediate
family members, except in response to a subpoena, court directive or otherwise
as required by law. You shall not disparage, denigrate or defame Biofield and/or
related persons, or any of their business products or services. Biofield will
not disparage, denigrate or defame you.
4. ENTIRE AGREEMENT; NOVATION: This Agreement constitutes the entire
understanding and agreement between you and Biofield, and replaces and cancels
all previous agreements and commitments, whether spoken or written, in
connection with the matters described. Any prior agreement between you and
Biofield is of no further force or effect, as this Agreement expresses the
complete agreement of the parties, except that you and Biofield shall remain
bound by (i) Sections 9, 13, 14, 15, 17 and 19 of the Employment Agreement; (ii)
the Secrecy Agreement and (iii) the Registration Rights Agreement in accordance
with the respective terms thereof.
5. EFFECT OF NON-ENFORCEMENT: If one or more terms of this Agreement shall
be ruled by a court to be void or unenforceable, the terms of this Agreement
that are not so found to be void or unenforceable shall continue in full force
and effect.
6. GOVERNING LAW: This Agreement shall be governed by and enforced in
accordance with the laws of the State of New York, without regard to its
conflicts of law principles.
7. MODIFICATION IN WRITING: This Agreement cannot be changed or modified
except by written agreement signed by both you and Biofield.
8. NO ADMISSION OF LIABILITY: This Agreement does not constitute an
admission of any unlawful discriminatory acts or liability of any kind by
Biofield and/or related persons, or anyone acting under their supervision or on
their behalf. This Agreement may not be used or introduced as evidence in any
legal proceeding, except to enforce its terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
BIOFIELD CORP.
By: /s/ MICHAEL R. GAVENCHAK
--------------------------------
Name: Michael R. Gavenchak
Title: Executive Vice President
General Counsel
/s/ MARK L. FAUPEL
--------------------------------
Mark L. Faupel
EXHIBIT A
# Options
Exercisable Exercise Price Expiration Date
----------- -------------- ---------------
62,745(1) $0.25 April 15, 2002
63,726(2) $8.16 October 1, 2002
4,902(3) $9.18 90 days from
termination
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(1) Granted pursuant to Section5 of the Employment Agreement.
(2) Granted pursuant to Section 6 of the Employment Agreement.
(3) Granted pursuant to the Biofield Corp. 1996 Stock Option Plan.
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