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,
2
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
Directo
