**Exhibit 10.46**

** **

**EMPLOYMENTAGREEMENT**

 

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

 

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

 

NOW, THEREFORE, it is AGREED as follows:

 

**1.****Employment**.  The Executive is hereby employed as Presidentand Chief Operating Officer of the Company for a period commencing on the datehereof and ending two years after the date hereof.  As President and Chief Operating Officer ofthe Company, the Executive shall handle all day-to-day activities of theCompany as customarily performed by persons serving in such capacities.  He shall also perform such other duties asthe Board of Directors of the Company may from time to time direct.  The Executive agrees to serve the Companyfaithfully 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 theterm of his employment.  The Executivehereby confirms that he is under no contractua1 commitments inconsistent withhis obligations set forth in this Agreement. The Executive shall be entitled without prior written consent to holdpositions on the Board of Directors of entities that do not compete with theCompany.  The Executive has, as of thedate of this Agreement, disclosed to the Board of Directors of the Company thepositions the Executive currently holds on other Boards of Directors, and theCompany has consented to such positions.

 

**2. Location ofServices**.  During the term of this Agreement, theExecutive shall be principally located at the offices of the Board of Directorsof the Company located in the San Francisco, California metropolitan area.

 

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

 

**4. Bonuses**.

 

The Executive shall also be entitled to a bonus to be paid based uponthe performance of the Company and consistent with the terms of the executivemanagement bonus pool approved by the Compensation Committee of the Board ofDirectors.  Under the terms of theexecutive management bonus pool the Executive is entitled to receive a bonuscalculated by the following formula:

 

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

 

(b)           Incrementalrevenue in 2005 that exceeds revenue in 2004 multiplied by 0.20% (two tenths ofone percent), payable quarterly. This is calculated monthly on a cumulativeyear-to-date basis using total revenue in 2004 divided by twelve months. Thiscomponent can either be $0 or a positive number. If cumulative 2005 revenuedoes not exceed cumulative 2004 revenue, this executive bonus component will be$0 and not a reduction to the overall executive bonus amount;

 

(c)           Incrementalrevenue in 2005 that exceeds revenue in 2004 multiplied by 0.20% (two tenths ofone percent), payable annually, provided that the Company is profitable for thecalendar year as measured by EBITDA. This component can either be $0 or apositive number. If 2005 revenue does not exceed 2004 revenue, this executivebonus component will be $0 and not a reduction to the overall executive bonusamount; and

 

(d)           Earningsbefore interest, taxes, depreciation and amortization (EBITDA) multiplied by2.50%, 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 $0and not a reduction to the overall executive bonus amount.

 

(e)           TheCompany’s Chairman and CEO may, in his sole discretion, award additionalbonuses to the Executive based upon achievement of Company objectives.  Such an award is subject to CompensationCommittee approval.

 

**5. Participationin the Executive Benefit Plans**.  In addition to the benefits noted below, theExecutive shall be entitled to participate, on the same basis as otherexecutive 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 benefitsthat the Company has adopted or may adopt for the benefit of itsemployees.  The Executive shall beentitled to participate in any fringe benefits, which are now or may be orbecome applicable to the Company’s executive employees generally.

 

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

 

**6. Sale of theCompany**.

 

(a)           During the term ofthis Agreement or the Severance Period (as defined below), upon (i) a saleof all or substantially all of the assets of the Company, (ii) a merger ofthe Company with another entity where the Company is not the surviving entityor where the stockholders of the Company immediately prior to the merger ownless than fifty percent (50%) of the voting stock of the Company following themerger, or (iii) a change in the membership of the Board of Directors suchthat individuals who, as of the date hereof,

 

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constitute the Board of Directors (the “Incumbent Board”) cease for anyreason to constitute at least a majority of the Board of Directors; provided,however, that any individual becoming a director subsequent to the date hereofwhose election, or nomination for election by the Company’s shareholders, wasapproved by a vote of at least a majority of the directors then comprising theIncumbent Board shall be considered as though the individual were a member ofthe Incumbent Board, but excluding, for this purpose, any individual whoseinitial assumption of office occurs as a result of an actual or threatenedelection contest with respect to the election or removal of directors or otheractual or threatened solicitation of proxies or consents by or on behalf of aperson 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 beengranted pursuant to the terms set forth in his previous employment agreementshall vest immediately.

 

(b) Notwithstanding any other provision of this Agreement or ofany other agreement, contract, or understanding heretofore or hereafter enteredinto by the Executive with the Company, except an agreement, contract, orunderstanding hereafter entered into that expressly modifies or excludesapplication of this paragraph (an “Other Agreement”), and notwithstanding anyformal or informal employment agreement or other arrangement for the direct orindirect provision of compensation to the Executive (including groups orclasses 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 ofa benefit to or for the Executive (a “Benefit Arrangement”), if the Executiveis a “disqualified individual,” as defined in Section 280G(c) of the InternalRevenue Code (the “Code”), any right to receive any payment or other benefitunder this Agreement shall not become exercisable or vested or shall beforfeited to the extent that such right to exercise, vesting, payment, orbenefit, taking into account all other rights, payments, or benefits to or forthe Executive under this Agreement, all Other Agreements, and all BenefitArrangements, would cause any payment or benefit to the Executive under thisAgreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) ofthe Code as then in effect (a “Parachute Payment”). In the event that thereceipt of any such right to exercise, vesting, payment, or benefit under thisAgreement, in conjunction with all other rights, payments, or benefits to orfor the Executive under any Other Agreement or any Benefit Arrangement wouldcause the Executive to be considered to have received a Parachute Payment underthis Agreement, then the Executive shall have the right, in the Executive’ssole discretion, to designate those rights, payments, or benefits under thisAgreement, any Other Agreements, and any Benefit Arrangements that should bereduced or eliminated so as to avoid having the payment or benefit to theExecutive under this Agreement be deemed to be a Parachute Payment.

 

**8. Standards**.  The Executive shallperform the Executive’s duties and responsibilities under this Agreement inaccordance with such reasonable standards as may be established from time totime by the Chairman and CEO and Board of Directors of the Company.  The reasonableness of such standards shall bemeasured against standards for executive performance generally prevailing inthe Company’s industry.

 

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**9. VoluntaryAbsences: Vacations**.  The Executive hereby agrees to bespecifically excluded from the Company vacation policy.

 

**10. Termination ofEmployment**.

 

(a) The Executive may terminate his employment at any time afterthe 60-day notice period in Section 11 has elapsed.  The Board of Directors of the Company mayterminate the Executive’s employment at any time, subject to payment of thecompensation described below.

 

(b) In the case of (i) any termination other than “terminationfor cause” as defined below, or (ii) any termination by the Executive for “GoodReason” as defined below, the Executive shall continue to receive for twelvemonths, commencing on the date of such termination (the “Severance Period”),his full Base Salary, any bonus that has been earned but not paid beforetermination of employment, plus a lump sum payment of 50% of his full basesalary; and all other benefits and compensation that the Executive would havebeen entitled to under this Agreement in the absence of termination ofemployment (collectively, the “Severance Amount”); provided, further, that allof Executive’s options that have been granted pursuant to the terms set forthin his previous employment agreement shall vest immediately upon suchtermination.

 

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

 

(d) The term “termination for cause’ shall mean termination by theCompany because of the Executive’s (i) fraud or material misappropriationwith respect to the business or assets of the Company; (ii) persistentrefusal or failure materially to perform his duties and responsibilities to theCompany for a period of at least ten (10) days, which continues after theExecutive receives notice of such refusal or failure; (iii) conduct thatconstitutes disloyalty to the Company and which materially harms the Company orconduct 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 afelony or crime, or willful violation of any law, rule, or regulation,involving moral turpitude; (v) the use of drugs or alcohol whichinterferes materially with the Executive’s performance of his duties; or (vi) materialbreach of any provision of this Agreement.

 

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

 

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(f) The Executive’s employment pursuant to this Agreement shallterminate automatically prior to the expiration of the term of this Agreementin the event of the Executive’s death or disability.  In the event the Executive’s employment terminatesprior to the expiration of the term of this Agreement due to his death ordisability, the Executive shall not be entitled to any further compensationunder the provisions of this Agreement, except for his base salary earnedthrough the date of termination, and the portion of any bonus which previouslyhad been approved by the Company but was unpaid as of the Executive’s death ordisability. 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 theExecutive (or the authorized representative of the Executive’s estate) signs acomprehensive general release of claims in a form acceptable to Company.  Payments of such approved but unpaid bonusshall not commence until after the Executive (or the authorized representativeof his estate) signs such a release, and after any revocation period referencedin such release has expired. If the Executive (or the authorized representativeof 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 theprovisions of this Agreement except for the Executive’s base salary earnedthrough the date of death or disability. In the case of disability, if the Executive violates any of theprovisions of Sections 13 or 14 of this Agreement, the Company’s obligations topay the unpaid portion of any approved Bonus to the Executive shall cease onthe date of such violation.

 

**11. Termination by the Executive**.  The Executive may terminate his employment atany time during the term of this Agreement by giving sixty (60) days’ priorwritten notice thereof to the Board of Directors of the Company. In the eventof termination by the Executive under this Section 11, the Company may atits option elect to have the Executive cease to provide services immediately,provided that during such 60-day notice period the Executive shall be entitledto continue to receive his base salary the Executive’s salary and benefits willterminate at the end of the 60-day notice period and his options will besubject to the terms and conditions of the applicable MCF Corporation StockOption and Incentive Plan.

 

**12. Return of Proprietary Property**.  The Executive agrees that all property in theExecutive’s possession that he obtains or is assigned in the course of hisemployment 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, isthe 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 allsuch property immediately upon termination of employment or at such earliertime as the Company may request.

 

**13. ConfidentialInformation**.  Except as permitted or directed by the Boardof Directors of the Company, during the time the Executive is employed by theCompany or at any time thereafter, the Executive shall not divulge, furnish, ormake accessible to anyone or use in any way (other than in the ordinary courseof the business of the Company) any confidential or secret information orknowledge of the Company, whether developed by himself or by others. Suchconfidential 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 wouldreduce the value of any confidential or secret knowledge or information to theCompany, both during his employment hereunder and at any time after thetermination of his employment.  TheExecutive’s obligations of confidentiality under this Section 13 shall notapply to any knowledge or information that is now published publicly or thatsubsequently becomes generally publicly known, other than as a direct orindirect result of a breach of this Agreement by the Executive.

 

**14. RestrictiveCovenants**.

 

(a) During the employment of the Executive under this Agreementand for a period of one year after termination of such employment, theExecutive shall not at any time (i) compete on his own behalf, or onbehalf of any other person or entity, with the Company or any of its affiliateswithin all territories in which the Company does business with respect to thebusiness of the Company or any of its affiliates as such business shall beconducted on the date hereof or during the employment of the Executive underthis Agreement; (ii) solicit or induce, on his own behalf or on behalf ofany other person or entity, any employee of the Company or any of its affiliatesto leave the employ of the Company or any of its affiliates; or (iii) solicitor induce, on his own behalf or on behalf of any other person or entity, anycustomer of the Company or any of its affiliates to reduce its business withthe Company or any of its affiliates.

 

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

 

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

 

(d) If any portion of this Section 15 is found by a court ofcompetent jurisdiction to be invalid or unenforceable, but would be valid andenforceable if modified, this Section 15 shall apply with suchmodifications necessary to make this Section 15 valid and enforceable. Any portion of this Section 15 notrequired to be so modified shall remain in full force and effect and not beaffected thereby. The Executive agrees that the Company shall have the right ofspecific performance in the event of a breach by the Executive of this Section 15.

 

**15. Assignment**.  The rights andobligations of the Company under this Agreement shall inure to the benefit ofand shall be binding upon the successors and assigns of the Company.  The Executive may not assign this Agreementor any rights hereunder.  Any

 

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purported or attempted assignment or transfer by the Executive of thisAgreement or any of the Executive’s duties, responsibilities or obligationshereunder shall be void.

 

**16. CompanyRemedies**.  The Executive acknowledges that the remedy atlaw for any breach of any of the provisions of Sections 12 or 13 will beinadequate, and that the Company shall be entitled, in addition to any remedyat law or in equity, to preliminary and permanent injunctive relief andspecific performance.

 

**17. OtherContracts**.  The Executive shall not, during the term ofthis Agreement, have any other paid employment other than with a subsidiary ofthe Company, except with the prior approval of the Board of Directors.

 

**18. Notices**.  All notices, requests, demands, consents, orother communications required or permitted under this Agreement shall be inwriting and shall be deemed to have been duly given if delivered by overnightcourier or express mail service or by postage prepaid registered or certifiedmail, return receipt requested (the return receipt constituting prima facieevidence the giving of such notice request, demand or other communication), bypersonal delivery, or by fax with confirmation of receipt and a copy mailedwith postage prepaid, to the following address or such other address of which aparty may subsequently give notice to the other party in accord with theprovisions of this Section. Notice is effective immediately if by personaldelivery or by fax with confirmation received and a copy mailed the sameday.  Notice sent by overnight courier orby registered or certified mail is effective the earlier of actual receipt orthe fifth date after the date mailed as evidenced by the sender’s certified orregistered receipt.

 

To theCompany:

 

MCFCorporation

600 CaliforniaStreet, 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 ofenforcing, or preventing the breach of, any provision hereof including, but notlimited to, the institution of any action or proceeding, whether byarbitration, judicial or quasi-judicial action, or otherwise, to enforce anyprovision hereof, or for damages for any alleged breach of any provisionhereof, or for a declaration of such party’s rights or obligations hereunder,then whether the matter is settled by negotiation, or by arbitration orjudicial

 

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determination, the prevailing party shall be entitled to be reimbursedby the losing party for all costs and expenses incurred thereby, including, butnot limited to, reasonable attorney’s fees for the services rendered to suchprevailing party.

 

**20. Amendments orAdditions**.  No amendments or additions to this Agreementshall be binding unless in writing and signed by all parties hereto.

 

**21. Section Headings**.  The section headingsused in this Agreement are included solely for convenience and shall notaffect, or be used in connection with, the interpretation of this Agreement.

 

**22. Severability**.  The provisions ofthis Agreement shall be deemed severable and the invalidity or unenforceabilityof any provision shall not affect the validity or enforceability of the otherprovisions hereof.

 

**23. Governing Law**.  This Agreement shallbe governed by the laws of the State of Delaware (other than the choice of law rules thereof).

 

 
| * *                 | **MCF CORPORATION** |                                          |
|--------------------------|---------------------|-----------------------------------------------|
| * *                 | * *            | * *                                      |   |
| * *                 | *By:*               | *D. Jonathan MerrimanChairman & CEO* |   |
| * *                 | * *            |                                          |
|                     |                |                                          |
|                     | *Signed:*           |                                          |   |
|                     |                |                                          |
|                     |                |                                          |
| Title: President and COO |                |
|                     |                |                                          |
| * *                 | *By:*               | *Robert E. Ford*                              |   |
|                     |                |                                          |
|                     | *Signed:*           |                                          |   |
|                     |                |                                          |

 

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