EXHIBIT 10.13
MEMORANDUM OF UNDERSTANDING
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This Memorandum of Understanding ("MOU") is entered into effective as of
the 6th day of July, 1998, by and among William Porter Payne, a resident of the
State of Georgia ("Payne"), Premiere Technologies, Inc., a Georgia corporation
("Premiere"), and Endeavor Technologies, Inc., a Georgia corporation
("Endeavor").
WHEREAS, effective May 22, 1998, Premiere and Payne agreed that Payne would
be employed by Premiere's wholly-owned subsidiary, Orchestrate.com, Inc.
("Orchestrate"), and, in respect of such service, would enter into a two-year
employment agreement with Premiere providing for (i) a salary of $750,000 per
year, (ii) a minimum bonus of $250,000 per year, (iii) a car allowance of $1,000
per month and (iv) options to purchase 500,000 shares of Common Stock of
Premiere, in addition to certain other benefits and remuneration agreed upon by
the parties at such time, which agreement was reflected in and subsumed by an
Executive Employment and Incentive Option Agreement dated July 6, 1998 between
Premiere and Payne (the "Payne Employment Agreement");
WHEREAS, as Chairman of Orchestrate, one of Payne's principal duties is to
assist Endeavor in the development of its business for the purpose of increasing
revenue opportunities for Premiere and enhancing the value of Premiere's
interest in Endeavor, recognizing that (i) Premiere is a substantial shareholder
of Endeavor and (ii) Endeavor represents an important channel for the
distribution of Premiere's "Orchestrate" family of products;
WHEREAS, in entering into the Payne Employment Agreement, the parties
contemplated that Payne, acting in his capacity as Chairman of Orchestrate,
would play a significant role in the development of Endeavor's "WebMD" product,
and that Endeavor would also compensate for such assistance through the grant to
Payne of an option to purchase 200,000 shares of Common Stock of Endeavor at an
exercise price of $2.00 per share;
WHEREAS, Premiere and Endeavor have determined that Payne's services to
Endeavor are so valuable to Endeavor that it is both useful and appropriate for
Endeavor to reimburse Premiere for a portion of his services as an employee of
Premiere;
WHEREAS, Premiere and Endeavor are prepared to share Payne's services on
the basis described herein; and
WHEREAS, to avoid future disputes, ambiguities and conflicts of interest,
each of Payne, Premiere and Endeavor desire to set forth in writing the nature
of the sharing arrangement they are prepared to enter into with respect to
Payne's services.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this MOU, the parties hereto agree as follows:
1. SHARING ARRANGEMENT. Each of Payne, Premiere and Endeavor agrees that,
notwithstanding that Payne is a full-time employee of Premiere or the contrary
provisions of the Payne Employment Agreement, Payne may devote up to 60% of his
time (or roughly three days a week) directly to the business of Endeavor. As an
employee of Premiere, Payne shall have the title of Chairman of Orchestrate. In
his service to Endeavor, Payne may serve as a member of its Board of Directors
and have the title of Vice Chairman, but shall not otherwise serve as an officer
or employee of Endeavor. Without Premiere's prior written consent, in his
service to Endeavor, Payne shall not carry any title that implies that he serves
as an employee of Endeavor. The Board of Directors of Endeavor shall act
expeditiously to create a vacancy on the Board and to appoint Payne to fill that
vacancy as soon as possible. Payne's appointment to the Board of Directors of
Endeavor shall not fulfill Endeavor's obligation to appoint a Premiere
designated director to the Board of Endeavor pursuant to Section 2 of the First
Amendment to Restated Shareholders Agreement of Endeavor Technologies, Inc.
dated December 15, 1997.
2. COMPENSATION. Effective as of August 6, 1998, for the balance of the
two-year term of Payne's agreed-upon employment with Premiere, Endeavor agrees
to reimburse Premiere for one-half of (i) Payne's salary of $750,000 per year,
(ii) minimum bonus of $250,000 per year and (iii) automobile allowance of $1,000
per month provided under the Payne Employment Agreement.
Endeavor shall be obligated to indemnify Payne for his service to Endeavor
pursuant to a standard form of Indemnification Agreement between Endeavor and
its directors. Endeavor has previously agreed to provide Payne options to
purchase 200,000 shares of Common Stock of Endeavor at an exercise price of
$2.00 per share in connection with its efforts to recruit Payne to Endeavor's
Board of Directors, and it will honor this agreement.
Except as set forth in this Section 2, Endeavor shall have no further
compensation obligations to Payne or Premiere relating to Payne's employment,
but shall reimburse Payne in accordance with its corporate policies for expenses
incurred by Payne in discharging the business of Endeavor.
3. OFFICE AND STAFF RESOURCES. As Payne's employer, Premiere shall
provide Payne (i) an office at Premiere's headquarters in Atlanta, Georgia and
(ii) a secretary. All of the expenses associated with such arrangements shall
be borne by Premiere.
4. RESPONSIBILITIES. Premiere and Endeavor agree that the principal
services offered by Payne to them involve the establishment and/or continuation
of sales and marketing efforts and the creation of strategic relationships
principally with large corporations. In order to reduce the potential that
Payne's sales and marketing efforts on
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behalf of one company may conflict with his efforts on behalf of the other
company, each of Payne, Premiere and Endeavor agrees that:
(a) On behalf of Endeavor, Payne's responsibilities will be directed
toward the establishment of Endeavor as a leading provider of
healthcare-related Internet services, including healthcare
content and turnkey solutions, delivered (at least in part)
through Premiere's Orchestrate(R) service and network. In this
capacity, Payne will seek to create strategic relationships
and/or sales relationships with healthcare organizations,
providers and insurers and the providers of healthcare
information and other healthcare-related "content" delivered via
the Internet. Payne and Endeavor agree with Premiere that
business opportunities and potential strategic relationships that
involve the marketing, sale or provision of communications
services or solutions via the Internet, private data networks or
the public switched telephone network, including without
limitation long distance calling cards, voice messaging services,
enhanced document distribution services, conferencing services,
unified messaging services, or other services commonly understood
by Premiere and Endeavor as elements of Premiere's Orchestrate(R)
service (whether involving the provision of communications
services through the Internet, private data networks or via the
public switched telephone network) (collectively, "Enhanced
Communications Services") shall be directed to Premiere; and
(b) On behalf of Premiere, Payne's marketing and sales efforts will
be directed to the continuation of Premiere as a leading provider
of Enhanced Communications Services, including without
limitation, the establishment of Orchestrate(R) as the leading
Web-enabled enhanced communications solution. In this capacity,
Payne will provide marketing and sales services, as directed by
the Chairman or President of Premiere, on behalf of Premiere and
each of its subsidiaries, and will seek to create strategic
relationships and/or sales relationships with entities or
organizations who may themselves, or whose customers may, seek
Enhanced Communications Services, including without limitation,
Orchestrate(R) services. Payne and Premiere agree with Endeavor
that business opportunities and potential strategic relationships
that involve the marketing, sale or provision of healthcare-
related Internet services such as content and turnkey solutions
shall be directed to Endeavor.
Any facts raising conflicts or potential conflicts in terms of Payne's
allegiances shall be reported to the Chief Executive Officers of the Company and
Endeavor for an appropriate, mutually acceptable resolution. Such conflicts or
potential conflicts shall
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include, without limitation, any such conflicts or potential conflicts arising
from the expansion of either party's business beyond the scope of such business
as presently conducted.
5. EXCULPATORY PROVISION. Premiere shall not be liable for, and Payne and
Endeavor hereby agree to hold Premiere harmless against, any loss, cost,
liability or expense (including attorneys' fees and costs and expenses of
investigation) directly or indirectly occurring or arising from actions taken by
Payne (or omissions or failures to act on his part) occurring in the course of
Payne's service to Endeavor or any subsidiary or affiliate thereof.
Endeavor shall not be liable for, and Payne and Premiere hereby agree to
hold Endeavor harmless against, any loss, cost, liability or expense (including
attorneys' fees and costs and expenses of investigation) directly or indirectly
occurring or arising from actions taken by Payne (or omissions or failures to
act on his part) occurring in the course of Payne's employment to Premiere or
any subsidiary or affiliate thereof.
6. BINDING INTENT; GOVERNING LAW. This MOU shall constitute a binding and
enforceable agreement among the parties hereto with respect to the subject
matter hereof. This MOU shall be governed by and construed in accordance with
the laws of the State of Georgia, and may be executed in counterparts, all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this MOU effective as of the
6th day of July, 1998.
WILLIAM PORTER PAYNE
/s/ William Porter Payne
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ENDEAVOR TECHNOLOGIES, INC.
By: /s/ W. Michael Heekin
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Its: COO
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PREMIERE TECHNOLOGIES, INC.
By: /s/ Boland Jones
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Its: CEO
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