Exhibit 10.46


 


EMPLOYMENT
AGREEMENT


 


THIS EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of January 1,
2005 between MCF CORPORATION, a Delaware corporation (the “Company”) and Robert
E. Ford (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 President
and Chief Operating Officer of the Company for a period commencing on the date
hereof and ending two years after the date hereof.  As President and Chief Operating Officer 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:


 


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


 


(b)           Incremental
revenue in 2005 that exceeds revenue in 2004 multiplied by 0.20% (two tenths 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 0.20% (two tenths 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; and


 


(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,


 


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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 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.


 


8. 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.


 


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


 


10. Termination of
Employment.


 


(a) The Executive may terminate his employment at any time after
the 60-day notice period in Section 11 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 twelve
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, plus a lump sum payment of 50% of his full base
salary; 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.


 


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(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 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 13 or 14 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.


 


11. 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 11, 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 the Executive’s salary and benefits will
terminate at the end of the 60-day notice period and his options will be
subject to the terms and conditions of the applicable MCF Corporation Stock
Option and Incentive Plan.


 


12. 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.


 


13. 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


 


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encompassed by this Section 13 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 13 shall not
apply to any 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.


 


14. Restrictive
Covenants.


 


(a) During the employment of the Executive under this Agreement
and for a period of one year 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 15 is found by a court of
competent jurisdiction to be invalid or unenforceable, but would be valid and
enforceable if modified, this Section 15 shall apply with such
modifications necessary to make this 

Section 15 valid and enforceable. Any portion of this Section 15 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 15.


 


15. 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


 


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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.


 


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


 


17. 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.


 


18. 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:   Chairman


 


To Employee:


 


Robert E. Ford


Home Address


 


19. 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


 


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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.


 


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


 


21. 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.


 


22. 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.


 


23. 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: President and COO

  	
   

  
	
   

  	
   

  	
   

  
	 
	By:
	Robert E. Ford
	 

	 
	 
	 

	 
	Signed:
	 
	 

	 
	 
	 




 


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