Exhibit 10.45


 


EMPLOYMENT
AGREEMENT


 


THIS EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of January 1,
2005 between MCF CORPORATION, a Delaware corporation (the “Company”), and
Gregory S. Curhan (the “Executive”).


 


WHEREAS, the parties desire to enter into this Agreement setting forth
the terms and conditions for the employment relationship of the Executive with
the Company.


 


NOW, THEREFORE, it is AGREED as follows:


 


1. Employment. The Executive is hereby employed as Executive Vice President
of the Company for a period commencing on the date hereof and ending two years
after the date hereof. As Executive Vice President of the Company, the
Executive shall handle all day-to-day activities of the Company as customarily
performed by persons serving in such capacities. He shall also perform such
other duties as the Board of Directors of the Company may from time to time
direct. The Executive agrees to serve the Company faithfully and to the best of
his ability and to devote his full time, attention and efforts to the business
and affairs of the Company during the term of his employment. The Executive
hereby confirms that he is under no contractua1 commitments inconsistent with
his obligations set forth in this Agreement. The Executive shall be entitled without
prior written consent to hold positions on the Board of Directors of entities
that do not compete with the Company. The Executive has, as of the date of this
Agreement, disclosed to the Board of Directors of the Company the positions the
Executive currently holds on other Boards of Directors, and the Company has
consented to such positions.


 


2. Location of Services. During the term of this Agreement, the Executive shall be
principally located at the offices of the Board of Directors of the Company located
in the San Francisco, California metropolitan area.


 


3. Salary. The
Company shall pay the Executive an annual Base Salary equal to $150,000, paid
semi-monthly.  The Base Salary of the
Executive shall not be decreased at any time during the term of this Agreement
from the amount then in effect unless the Executive otherwise agrees in
writing.  Participation in deferred
compensation, discretionary bonus, retirement, and other employee benefit plans
and in fringe benefits shall not reduce the Base Salary.  The Base Salary shall be payable to the
Executive not less frequently than monthly.


 


 4. Bonuses.
The Executive shall also be entitled to a bonus to be paid based upon the
performance of the Company and consistent with the terms of the executive
management bonus pool approved by the Compensation Committee of the Board of
Directors.  Under the terms of the
executive management bonus pool the Executive is entitled to receive a bonus
calculated by the following formula:


 


(a)           Gross revenue multiplied by 0.50%
(one half of one percent), payable quarterly;


 


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(b)           Incremental revenue in 2005 that
exceeds revenue in 2004 multiplied by 0.85% (eighty five one hundredth of one
percent), payable quarterly. This is calculated monthly on a cumulative
year-to-date basis using total revenue in 2004 divided by twelve months. This
component can either be $0 or a positive number. If cumulative 2005 revenue
does not exceed cumulative 2004 revenue, this executive bonus component will be
$0 and not a reduction to the overall executive bonus amount.


 


(c)           Incremental revenue in 2005 that
exceeds revenue in 2004 multiplied by 0.85% (eighty five one hundredth of one
percent), payable annually, provided that the Company is profitable for the
calendar year as measured by EBITDA. This component can either be $0 or a
positive number. If 2005 revenue does not exceed 2004 revenue, this executive
bonus component will be $0 and not a reduction to the overall executive bonus
amount.


 


(d)           Earnings before interest, taxes,
depreciation and amortization (EBITDA) multiplied by 2.50%, payable annually.
This component can either be $0 or a positive number. If 2005 EBITDA is a
negative amount, this executive bonus component will be $0 and not a reduction
to the overall executive bonus amount.


 


(e)           The Company’s Chairman and CEO may,
in his sole discretion, award additional bonuses to the Executive based upon
achievement of Company objectives.  Such
an award is subject to Compensation Committee approval.


 


5. Participation in the Executive Benefit
Plans. In addition to the
benefits noted below, the Executive shall be entitled to participate, on the
same basis as other executive employees of the Company, in any stock option,
stock purchase, pension, thrift, profit-sharing, group life insurance, medical
coverage, education, or other retirement or employee pension or welfare plan or
benefits that the Company has adopted or may adopt for the benefit of its
employees. The Executive shall be entitled to participate in any fringe
benefits, which are now or may be or become applicable to the Company’s
executive employees generally.


 


The Executive shall promptly be reimbursed for all reasonable expenses
which he may incur in connection with his services hereunder in accordance with
the Company’s normal reimbursement policies as established from time to time.


 


6. 
Sale of the Company.


 


(a)           During the term of
this Agreement or the Severance Period (as defined below), upon (i) a sale
of all or substantially all of the assets of the Company, (ii) a merger of
the Company with another entity where the Company is not the surviving entity
or where the stockholders of the Company immediately prior to the merger own
less than fifty percent (50%) of the voting stock of the Company following the
merger, or (iii) a change in the membership of the Board of Directors such
that individuals who, as of the date hereof, constitute the Board of Directors
(the “Incumbent Board”) cease for any reason to constitute at least a majority
of the Board of Directors; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or


 


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nomination for
election by the Company’s shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though the individual were a member of the Incumbent Board, but
excluding, for this purpose, any individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a person other than the Company’s
Board of Directors, the Executive shall receive $500,000 from the Company and
all of the Executive’s options that have been granted pursuant to the terms set
forth in his previous employment agreement shall vest immediately.


 


(b) Notwithstanding any other provision of this Agreement or of
any other agreement, contract, or understanding heretofore or hereafter entered
into by the Executive with the Company, except an agreement, contract, or
understanding hereafter entered into that expressly modifies or excludes
application of this paragraph (an “Other Agreement”), and notwithstanding any
formal or informal employment agreement or other arrangement for the direct or
indirect provision of compensation to the Executive (including groups or
classes of participants or beneficiaries of which the Executive is a member),
whether or not such compensation is deferred, is in cash, or is in the form of
a benefit to or for the Executive (a “Benefit Arrangement”), if the Executive
is a “disqualified individual,” as defined in Section 280G(c) of the
Internal Revenue Code (the “Code”), any right to receive any payment or other
benefit under this Agreement shall not become exercisable or vested or shall be
forfeited to the extent that such right to exercise, vesting, payment, or
benefit, taking into account all other rights, payments, or benefits to or for
the Executive under this Agreement, all Other Agreements, and all Benefit
Arrangements, would cause any payment or benefit to the Executive under this
Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of
the Code as then in effect (a “Parachute Payment”). In the event that the
receipt of any such right to exercise, vesting, payment, or benefit under this
Agreement, in conjunction with all other rights, payments, or benefits to or
for the Executive under any Other Agreement or any Benefit Arrangement would
cause the Executive to be considered to have received a Parachute Payment under
this Agreement, then the Executive shall have the right, in the Executive’s
sole discretion, to designate those rights, payments, or benefits under this
Agreement, any Other Agreements, and any Benefit Arrangements that should be
reduced or eliminated so as to avoid having the payment or benefit to the
Executive under this Agreement be deemed to be a Parachute Payment.


 


7. Standards. The Executive shall perform the Executive’s duties and
responsibilities under this Agreement in accordance with such reasonable
standards as may be established from time to time by the Chairman and CEO and
Board of Directors of the Company. The reasonableness of such standards shall
be measured against standards for executive performance generally prevailing in
the Company’s industry.


 


8. Voluntary Absences: Vacations. The Executive hereby agrees to be specifically excluded from
the Company vacation policy.


 


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9. Termination of Employment.


 


(a) The Executive may terminate his employment at any time after
the 60-day notice period in Section 10 has elapsed. The Board of Directors
of the Company may terminate the Executive’s employment at any time, subject to
payment of the compensation described below.


 


(b) In the case of (i) any termination other than “termination
for cause” as defined below, or (ii) any termination by the Executive for “Good
Reason” as defined below, the Executive shall continue to receive for six
months, commencing on the date of such termination (the “Severance Period”),
his full Base Salary, any bonus that has been earned but not paid before
termination of employment, and all other benefits and compensation that the
Executive would have been entitled to under this Agreement in the absence of
termination of employment (collectively, the “Severance Amount”); provided,
further, that all of Executive’s options that have been granted pursuant to the
terms set forth in his previous employment agreement shall vest immediately
upon such termination.


 


(c) The Executive shall have no right to receive compensation or
other benefits from the Company for any period after termination for cause by
the Company or termination by the Executive other than termination with good
reason, except for any vested retirement benefits to which the Executive may be
entitled under any qualified employee pension plan maintained by the Company
and any deferred compensation to which the Executive may be entitled.


 


(d) The term “termination for cause’ shall mean termination by the
Company because of the Executive’s (i) fraud or material misappropriation
with respect to the business or assets of the Company; (ii) persistent
refusal or failure materially to perform his duties and responsibilities to the
Company for a period of at least ten (10) days, which continues after the
Executive receives notice of such refusal or failure; (iii) conduct that
constitutes disloyalty to the Company and which materially harms the Company or
conduct that constitutes breach of fiduciary duty involving personal profit; (iv) conviction,
or the entry of a plea of guilty or nolo contendere by the Executive, of a
felony or crime, or willful violation of any law, rule, or regulation,
involving moral turpitude; (v) the use of drugs or alcohol which
interferes materially with the Executive’s performance of his duties; or (vi) material
breach of any provision of this Agreement.


 


(e) The term resignation for “Good Reason” shall mean that
Executive’s resignation occurs within three months of one of the following
events: (i) an involuntary reduction of Executive’s job duties or
responsibilities; (ii) the Chairman and CEO or Board decides that
Executive report to someone other than the Chairman and CEO; or (iii) any
involuntary reduction of Executive’s Base Compensation.


 


(f) The Executive’s employment pursuant to this Agreement shall
terminate automatically prior to the expiration of the term of this Agreement
in the event of the Executive’s death or disability. In the event the Executive’s
employment terminates prior to the expiration


 


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of the term of this Agreement due to his death or disability, the
Executive shall not be entitled to any further compensation under the
provisions of this Agreement, except for his base salary earned through the
date of termination, and the portion of any bonus which previously had been approved
by the Company but was unpaid as of the Executive’s death or disability. The
Executive (or, in the event of death, the Executive’s estate) shall be entitled
to such unpaid portion of any approved bonus only if the Executive (or the
authorized representative of the Executive’s estate) signs a comprehensive
general release of claims in a form acceptable to Company. Payments of such
approved but unpaid bonus shall not commence until after the Executive (or the
authorized representative of his estate) signs such a release, and after any
revocation period referenced in such release has expired. If the Executive (or
the authorized representative of his Estate) does not sign such a general
release of claims, the Executive (or his estate) shall not be entitled to
receive any compensation under the provisions of this Agreement except for the
Executive’s base salary earned through the date of death or disability. In the
case of disability, if the Executive violates any of the provisions of Sections
12 of this Agreement, the Company’s obligations to pay the unpaid portion of
any approved Bonus to the Executive shall cease on the date of such violation.


 


10.
Termination by the Executive. The Executive may terminate his employment
at any time during the term of this Agreement by giving sixty (60) days’ prior
written notice thereof to the Board of Directors of the Company. In the event
of termination by the Executive under this Section 10, the Company may at
its option elect to have the Executive cease to provide services immediately,
provided that during such 60-day notice period the Executive shall be entitled
to continue to receive his base salary.


 


11. Return of Proprietary Property.
The Executive agrees that all property in the Executive’s possession that he
obtains or is assigned in the course of his employment with the Company,
including, without limitation, all documents, reports, manuals, memoranda,
customer lists, credit cards, keys, access cards, and all other property
relating in any way to the business of the Company, is the exclusive property
of the Company, even if the Executive authored, created, or assisted in
authoring or creating such property. The Executive shall return to the Company
all such property immediately upon termination of employment or at such earlier
time as the Company may request.


 


12. Confidential Information. Except as permitted or directed by the Board of Directors of
the Company, during the time the Executive is employed by the Company or at any
time thereafter, the Executive shall not divulge, furnish, or make accessible
to anyone or use in any way (other than in the ordinary course of the business
of the Company) any confidential or secret information or knowledge of the
Company, whether developed by himself or by others. Such confidential and/or
secret information encompassed by this Section 12 includes, but is not
limited to, the Company’s customer and supplier lists, business plans, and
financial, marketing, and personnel information. The Executive agrees to
refrain from any acts or omissions that would reduce the value of any
confidential or secret knowledge or information to the Company, both during his
employment hereunder and at any time after the termination of his employment.
The Executive’s obligations of confidentiality under this Section 12 shall
not apply to any


 


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knowledge or information that is now published publicly or that
subsequently becomes generally publicly known, other than as a direct or
indirect result of a breach of this Agreement by the Executive.


 


13. Restrictive Covenants.


 


(a) During the employment of the Executive under this Agreement
and for a period of six (6) months after termination of such employment,
the Executive shall not at any time (i) compete on his own behalf, or on
behalf of any other person or entity, with the Company or any of its affiliates
within all territories in which the Company does business with respect to the
business of the Company or any of its affiliates as such business shall be conducted
on the date hereof or during the employment of the Executive under this
Agreement; (ii) solicit or induce, on his own behalf or on behalf of any
other person or entity, any employee of the Company or any of its affiliates to
leave the employ of the Company or any of its affiliates; or (iii) solicit
or induce, on his own behalf or on behalf of any other person or entity, any
customer of the Company or any of its affiliates to reduce its business with
the Company or any of its affiliates.


 


(b) The Executive shall not at any time during or subsequent to
his employment by the Company, on his own behalf or on behalf of any other
person or entity, disclose any proprietary information of the Company or any of
its affiliates to any other person or entity other than on behalf of the
Company or in conducting its business, and the Executive shall not use any such
proprietary information for his own personal advantage or make such proprietary
information available to others for use, unless such information shall have
come into the public domain other than through unauthorized disclosure.


 


(c) The ownership by the Executive of not more than 5% of a
corporation, partnership or other enterprise shall not constitute a violation
hereof.


 


(d) If any portion of this Section 13 is found by a court of
competent jurisdiction to be invalid or unenforceable, but would be valid and
enforceable if modified, this Section 13 shall apply with such
modifications necessary to make this 

Section 13 valid and enforceable.  Any
portion of this Section 13 not required to be so modified shall remain in
full force and effect and not be affected thereby. The Executive agrees that
the Company shall have the right of specific performance in the event of a
breach by the Executive of this Section 13.


 


14. Assignment. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company. The Executive may not assign this
Agreement or any rights hereunder. Any purported or attempted assignment or
transfer by the Executive of this Agreement or any of the Executive’s duties,
responsibilities, or obligations hereunder shall be void.


 


15. Company Remedies. The Executive acknowledges that the remedy at law for any breach
of any of the provisions of Sections 12 or 13 will be inadequate, and that the


 


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Company shall be entitled, in addition to any remedy at law or in
equity, to preliminary and permanent injunctive relief and specific
performance.


 


16. Other Contracts. The Executive shall not, during the term of this Agreement,
have any other paid employment other than with a subsidiary of the Company,
except with the prior approval of the Board of Directors.


 


17. Notices.
All notices, requests, demands, consents, or other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given if delivered by overnight courier or express mail service or by
postage prepaid registered or certified mail, return receipt requested (the
return receipt constituting prima facie evidence the giving of such notice
request, demand or other communication), by personal delivery, or by fax with
confirmation of receipt and a copy mailed with postage prepaid, to the
following address or such other address of which a party may subsequently give
notice to the other party in accord with the provisions of this Section. Notice
is effective immediately if by personal delivery or by fax with confirmation
received and a copy mailed the same day. Notice sent by overnight courier or by
registered or certified mail is effective the earlier of actual receipt or the
fifth date after the date mailed as evidenced by the sender’s certified or
registered receipt. 


 


	
  To the Company:

  	
   

  	
  MCF
  Corporation

  
	
   

  	
   

  	
  600
  California Street, 9th Floor

  
	
   

  	
   

  	
  San
  Francisco, CA 94108

  
	
   

  	
   

  	
  Attn:   General Counsel

  
	
   

  	
   

  	
   

  
	
  To Employee:

  	
   

  	
  Gregory S.
  Curhan

  
	
   

  	
   

  	
  Home Address

  



 


18. Attorneys Fees. Should any party hereto retain counsel for the purpose of
enforcing, or preventing the breach of, any provision hereof including, but not
limited to, the institution of any action or proceeding, whether by
arbitration, judicial or quasi-judicial action, or otherwise, to enforce any
provision hereof, or for damages for any alleged breach of any provision
hereof, or for a declaration of such party’s rights or obligations hereunder,
then whether the matter is settled by negotiation, or by arbitration or
judicial determination, the prevailing party shall be entitled to be reimbursed
by the losing party for all costs and expenses incurred thereby, including, but
not limited to, reasonable attorney’s fees for the services rendered to such
prevailing party.


 


19. Amendments or Additions. No amendments or additions to this Agreement shall be
binding unless in writing and signed by all parties hereto.


 


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20. Section Headings. The section headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.


 


21. Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.


 


22. Governing Law. This Agreement shall be governed by the laws of the State of
Delaware (other than the choice of law rules thereof).


 


MCF CORPORATION 


 


	 
	By:
	D. Jonathan Merriman

Chairman & CEO
	 

	 
	 
	 

	 
	Signed:
	 
	 

	 
	 
	 

	 
	 
	 

	
  Title: Executive Vice President

  	
   

  
	
   

  	
   

  	
   

  
	 
	By:
	Gregory S. Curhan
	 

	 
	 
	 

	 
	Signed:
	 
	 

	 
	 
	 




 


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