Exhibit 10.4


Amended

EMPLOYMENT AGREEMENT BETWEEN 

SMARTPROS LTD.
AND
STANLEY WIRTHEIM 


This Amended
employment agreement (the “Agreement”) dated as of July 1, 2008 is by and
between SmartPros Ltd., a Delaware corporation (the “Company”), and Stanley
Wirtheim, an individual residing at 62-27 Douglaston Parkway, Douglaston, New
York 11362 (the “Executive”). 


	
 

	
 

	
 


	
1.

	
Employment.
 The Company shall employ the Executive, and the Executive agrees to serve the
 Company, on the terms and conditions set forth herein. The Executive shall
 serve as Vice President & CFO of the Company and shall be based at the
 Company’s headquarters in Hawthorne, New York. The Executive hereby accepts
 such employment hereunder, except for absences occasioned by illness and
 reasonable vacation periods, and agrees to undertake the duties and
 responsibilities inherent in such position and such other duties and
 responsibilities as the Company shall from time to time reasonably assign to
 him. The Executive shall report to and be supervised by the Board of
 Directors of the Company (the “Board”) and the Chief Executive Officer of the
 Company. The Executive shall use his best efforts, including the highest
 standards of professional competence and integrity, and shall devote his full
 business time and effort to the performance of his duties hereunder. The
 Executive shall not engage in any other business activity except that the
 Executive may engage from time to time in such personal investment activities
 as do not interfere with his day to day responsibilities to the Company. The
 Executive shall be allowed to spend up to 1-2 days per month on his current
 accounting practice. 


	
 

	
 


	
2.

	
Compensation
 and Benefits. 


	
 

	
 


	
 

	
2.1

	
Salary.
 During the Term (as defined below) of this Agreement, the Executive shall be
 paid a salary at the rate of $123,000 per annum (“the Base Salary”), payable
 as customarily paid by the Company. During the Term of this Agreement,
 executive’s base salary shall be reviewed at least annually by the Board. 


	
 

	
 

	
 


	
 

	
2.2

	
Bonus.
 In addition to his Base Salary, the Executive may be entitled to bonuses at
 times and in amounts determined in the discretion of the Board. Any incentive
 bonuses shall be paid as soon as practicable after each year-end, and in all
 events by March 15 of the year following the year for which the bonus was
 determined. 












	
 

	
 

	
 


	
 

	
2.3

	
Benefits.
 The Executive shall be entitled to participate in all employee benefit
 programs or plans maintained by the Company from time to time on the same
 basis as other similarly situated executive employees of the Company. The
 Company will pay the Executive a $300 per month car allowance. The Executive
 will be entitled to 4 weeks paid vacation per year. The Company will pay the
 Executive’s membership dues for the AICPA and the NY Society of CPA’s. 


	
 

	
 

	
 


	
 

	
2.4

	
Reimbursement
 of Expenses. The Company shall reimburse the
 Executive in accordance with its general reimbursement policies for all
 ordinary and necessary expenses incurred by the Executive on behalf of the
 Company upon the presentation of appropriate supporting documentation. 


	
 

	
 

	
 


	
3.

	
Term;
 Termination; Rights upon Termination. 


	
 

	
 


	
 

	
3.1

	
Term.
 The Company agrees to employ the Executive, and the Executive agrees to serve
 the Company for a period commencing on July 1, 2008 and continuing until June
 30, 2011 (the “End Date”) unless otherwise amended or terminated pursuant to
 the terms hereof (the “Term”). 


	
 

	
 

	
 


	
 

	
3.2

	
Termination.
 The Company may at any time, terminate the employment of the Executive under
 this Agreement for Cause (as defined below), or without Cause, immediately
 and without any requirement of notice. The rights and obligations of the
 parties upon any termination of the Executive’s employment shall be as set
 forth in Section 3.3. For purposes of this Agreement the term “Cause” shall mean
 (i) any act of dishonesty or gross and willful misconduct with respect to the
 Company, including without limitation, fraud or theft, on the part of the
 Executive, (ii) conviction of the Executive of a felony, (iii) Executive’s
 failure to reduce the time spent on his private accounting practice in
 accordance with section 1 (iv) failure to perform his duties in a
 satisfactory manner consistent with industry standards of CFO’s in public
 companies (v) the Executive’s failure to perform his assigned duties hereunder
 after written notice and a 30 day opportunity to cure. 


	
 

	
 

	
 


	
 

	
3.3

	
Rights Upon
 Termination. In the event that: 








	
 

	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
(a)

	
          The
 employment of the Executive is terminated by the Company without Cause, then,
 for the remainder of the then current Term of employment hereunder, then,
 (subject to Section 3.3(e)) within 30 days after the date of such termination
 of employment, the Company shall pay to the Executive (x) a cash lump sum
 equal to Executive’s Base Salary at the rate in effect at the time of termination
 calculated through the





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remainder of the then-current term of employment, and
 (y) a bonus equal to the average of the last two years annual bonuses
 received by the Executive
 multiplied by the amount of whole and partial years remaining on the
 contract. In addition, the Company shall provide to Executive all benefits
 described in section 2.3 through the remainder of the then-current term of
 employment. The obligations of the Company pursuant to this Section 3.3(a)
 shall be in lieu of any other rights of the Executive hereunder to
 compensation or benefits in respect of any period before or after the date of
 such termination.


	
 

	
 

	
 

	
 


	
 

	
 

	
(b)

	
          The
 Executive’s employment terminates by reason of death or disability, then the
 Company shall pay and provide to the Executive or Executive’s estate or other
 successor in interest at the time otherwise due under Section 2 all Base
 Salary and benefits due to the Executive under Section 2 through the end of
 the sixth month after the month in which the termination occurs, but reduced
 in the case of disability by any payments received under any disability plan,
 program or policy paid for by the Company. The obligations of the Company
 pursuant to this Section 3.3(b) shall be and in lieu of any other rights of
 the Executive hereunder to compensation or benefits (excluding any
 tax-qualified retirement plan benefits) in respect of any period before or
 after the date of such termination and in lieu of any severance payment, and
 no other compensation of any kind or any other amounts shall be due to the
 Executive by the Company under this Agreement. For purposes of this
 Agreement, the term “disability” shall mean: (i) the Company’s determination
 that Executive will be unable to engage in any substantial gainful activity
 by reason of any medically determinable physical or mental impairment that
 can be expected to result in death, or last for a continuous period of not
 less than 12 months; (ii) by reason of any medically determinable physical or
 mental impairment that can be expected to result in death, or last for a
 continuous period of not less than 12 months, Executive is receiving income
 replacement benefits for a period of not less than three months under an
 accident and health plan covering employees of the Company; or (iii)
 Executive is determined to be totally disabled by the Social Security
 Administration. 


	
 

	
 

	
 


	
 

	
 

	
(c)

	
          The
 employment of the Executive is terminated by the Company for Cause, or by the
 Executive other than under circumstances described in Section 3.3(a) or (b) above,
 the Executive shall not be entitled to compensation or benefits granted
 hereunder beyond the date of the termination of the Executive’s employment. 


	
 

	
 

	
 

	
 


	
 

	
 

	
(d)

	
          If a Change
 in Control, as defined in Section 7, shall occur at any time between July 1,
 2008 and June 30, 2011 then upon the 





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occurrence
 of such Change in Control the Executive shall be entitled to one year’s
 severance pay in lieu of any other payments that would be due under any other
 section of this contract in the event that, within 30 days after the Change
 in Control, the Executive is not continued in a position at the same or
 greater salary as stated in the contract. Such payment shall be made no later
 than 60 days after the Change in Control.


	
 

	
 

	
 

	
 


	
 

	

 

	
(e)

	
          If Executive
 shall be entitled to a payment or payments under Section 3.3 and at such time
 the Executive is a “specified employee” of the Company within the meaning of
 Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended
 (the “Code”) (or any successor provision), to the extent the amount payable
 pursuant to Section 3.3(a) exceeds the limits set forth in Section
 1.409A-1(b)(9)(iii) of the Income Tax Regulations (or any successor
 provision), no payment in excess of those limits shall be made until the
 earliest to occur of the following (the earliest to occur of such dates being
 hereafter referred to as the “End Date”) unless any other provision under
 Section 409A of the Code, and the regulations promulgated thereunder, would
 allow any other payment or portion of payment without triggering the
 penalties under Section 409A of the Code: (a) the date that is six (6) months
 after the date Employee’s employment is terminated within the meaning set
 forth in Section 1.409A-1(h) of the Income Tax Regulations; and (b) the date
 of the Employee’s death. Except as provided in the following sentence, any
 amounts deferred under this Section 3.3(e) shall be due and payable no later
 than the fifth business day after the End Date. If the Company determines,
 based upon written advice of counsel, that any such payment, if made during
 the calendar year that includes the date Employee’s employment is terminated,
 would not be deductible in whole or in part by reason of Code Section 162(m),
 such payment shall be made on January 2 of the following calendar year (or
 such later date as may be required under the preceding proviso if the
 Employee is a “specified employee”). 


	
 

	
 

	
 

	
 


	
4.

	
Proprietary
 Information. 


	
 

	
 


	
 

	
4.1

	
The
 Executive agrees that all information and know how, whether or not in writing,
 of a private, secret or confidential nature concerning the business or
 financial affairs of the Company and its subsidiaries (collectively, for
 purposes of this Section 4, the “Company”) and not within Executive’s
 possession or knowledge prior to his employment with the Company
 (collectively, “Proprietary Information”), is and shall be the exclusive
 property of the Company. By way of illustration, but not limitation,
 Proprietary Information may include inventions, products, processes, methods,
 techniques, projects, developments, plans, research data, financial data, and
 personnel data. The Executive will not disclose any Proprietary Information
 to others outside of the Company or use the same for any unauthorized
 purposes without the written 





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consent of
 the Company, either during or after his employment, unless and until such
 Proprietary Information has become public knowledge without fault of the
 Executive.


	
 

	
 

	
 


	
 

	
4.2

	
The
 Executive agrees that all files, letters, memoranda, reports, records, data,
 sketches, drawings, or other written, photographic, or other tangible
 material containing Proprietary Information, whether created by the Executive
 or others, which shall come into his custody or possession, shall be and are
 the exclusive property of the Company to be used by the Executive only in the
 performance of his duties for the Company. 


	
 

	
 

	
 


	
 

	
4.3

	
The
 Executive agrees that his obligation not to disclose or use Proprietary
 Information and records of the type set forth herein also extends to such
 types of Proprietary Information, records and tangible property of other
 third parties who may have disclosed or entrusted the same to the Company or
 to the Executive in the course of the Company’s business. 


	
 

	
 

	
 


	
5.

	
Other
 Agreements. The Executive hereby represents that his
 performance of all the terms of this Agreement and as an employee of the
 Company does not and will not breach any agreement to keep in confidence
 proprietary information, knowledge or data acquired by him in confidence or
 in trust prior to his employment with the Company. 


	
 

	
 


	
6.

	
Non-Competition,
 Non-Solicitation. 


	
 

	
 


	
 

	
6.1

	
Non-Solicitation
 of Employees and Customers. The Executive agrees
 that during the Term of the Executive’s employment with the Company and for a
 period of one year thereafter, the Executive shall not directly or indirectly
 (i) recruit, solicit or otherwise induce or attempt to induce any employees
 of the Company or any of its subsidiaries to leave their employment or (ii)
 call upon, solicit, divert or take away, or attempt to divert or take away,
 the business or patronage of any customer licensee, vendor, collaborator or
 corporate partner of the Company or any of its subsidiaries that had a
 business relationship with the Company or any of its subsidiaries at the time
 of termination of Executive’s employment with the Company and that did not
 have a business or personal relationship or was known to Executive prior to
 his employment with the Company. 


	
 

	
 

	
 


	
 

	
6.2

	
Non-competition. The Executive agrees that during
 the Term of the Executive’s
 employment with the Company, the Executive shall not directly or indirectly,
 engage in competition with the Company or any subsidiaries, or own or control
 any interest in, or act as director, officer or employee of, or consultant
 to, any firm, corporation or institution directly engaged in competition with
 the Company or any of its subsidiaries; provided that the Company or one of
 its subsidiaries is actively engaged in such business at the time the
 Executive’s 





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employment
 by the Company is terminated; and provided that the foregoing shall not
 prevent the Executive from holding shares as a passive investor in a publicly
 held company which do not constitute more than 5% of the outstanding shares
 of such company. In the event that the Executive (i) voluntarily terminates
 his employment, (including at any time on or after the End Date) other than
 as provided for in this agreement, or (ii) is terminated by the Company for
 Cause, the Executive agrees to not compete in the E-Learning marketplace
 until one year from the date of such termination.


	
 

	
 

	
 


	
7.

	
Change in
 Control Protection. For purposes of this Agreement,
 a “Change in Control” of the Company shall mean a change in the ownership or
 effective control of the Company or in the ownership of a substantial portion
 of the assets of the Company as determined under Section 1.409A-3((i)(5) of
 the Income Tax Regulations, as amended from time to time (or any successor
 provision).”


	
 

	
 

	
 


	
8.

	
Miscellaneous.
 


	
 

	
 


	
 

	
8.1 Notices.
 All notices required or permitted under this Agreement shall be in writing
 and shall be deemed effective upon personal delivery or upon deposit in the
 United States Post Office, by registered or certified mail, postage prepaid,
 addressed if to the Executive, at the address shown above and if to the
 Company, at its principal place of business at 12 Skyline Drive, Hawthorne,
 New York, or at such other address or addresses as either party shall
 designate to the other in accordance with this Section 8.1. 


	
 

	
 


	
 

	
8.2 Pronouns.
 Wherever the context may require, any pronouns used in this Agreement shall
 include the corresponding masculine, feminine or neuter forms, and the
 singular forms of nouns and pronouns shall include the plural, and vice
 versa. 


	
 

	
 


	
 

	
8.3 Entire
 Agreements. This Agreement constitutes the entire agreement between the
 parties and supercedes all prior agreements and understandings, whether
 written or oral, relating to the subject matter of this Agreement. 


	
 

	
 


	
 

	
8.4 Amendment.
 This Agreement may be amended or modified only by a written instrument
 executed by both the Company and the Executive. 


	
 

	
 


	
 

	
8.5 Governing
 Law. This Agreement shall be construed, interpreted and enforced in
 accordance with the laws of the State of New York. 


	
 

	
 


	
 

	
8.6 Successors
 and Assigns. This Agreement shall be binding upon and inure to the
 benefit of both parties and their respective successors and assigns,
 including any corporation with which or into which the Company may be merged
 or 





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which may
 succeed to its assets or business, provided, however, that the obligations of
 the Executive are personal and shall not be assigned by him.


	
 

	
 


	
 

	
8.7 Waivers.
 No delay or omission by the Company in exercising any right under this
 Agreement shall operate as a waiver of that or any other right. A waiver or
 consent given by the Company on any one occasion shall be effective only in
 this instance and shall not be construed as a bar or waiver of any right on
 any other occasion. This agreement supersedes all previous agreements.


	
 

	
 


	
 

	
8.8 Captions.
 The captions of the sections of this Agreement are for convenience of
 reference only and in no way define, limit or affect the scope or substance
 of any section of this Agreement. 


	
 

	
 


	
 

	
8.9 Severability.
 In case any provision of this Agreement shall be invalid, illegal or otherwise
 unenforceable, the validity, legality and enforceability of the remaining
 provisions shall in no way be affected or impaired thereby. 


	
 

	
 


	
 

	
8.10 Specific
 Enforcement. The parties acknowledge that the Executive’s breach of the
 provisions of Section 4 and 6 of this Agreement will cause irreparable harm
 to the Company. It is agreed and acknowledged that the remedy of damages will
 not be adequate for the enforcement of such provisions and that such
 provisions may be enforced by equitable relief, including injunctive relief,
 which relief shall be cumulative and in addition to any other relief to which
 the Company may be entitled. 





9. Arbitration.
Any claims, controversies, demands, disputes or differences between or among
the parties hereto or any persons bound hereby arising out of, or by virtue of,
or in connection with, or otherwise relating to this Agreement shall be
submitted to and settled by arbitration conducted in New York, New York before
one or three arbitrators each of which shall be knowledgeable in employment
law. Such arbitration shall otherwise be conducted in accordance with the rules
then obtaining of the American Arbitration Association. The parties hereto
agree to share equally the responsibility for all fees of the arbitrators, abide
by any decision rendered as final and binding, and waive the right to appeal
the decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party may
appeal or subject the award or decision of any such arbitrator(s) to appeal or
review in any court of law or in equity or by any other tribunal, arbitration
system or otherwise. Judgment upon any award granted by such an arbitrator(s)
may be enforced in any court having jurisdiction thereof. If the arbitration
decision holds that the Company is at fault, the Executive shall be entitled to
reimbursement of fees and expenses from the Company in an amount not to exceed
$50,000. If the arbitration decision holds that the Company is not at fault,
the Company shall be entitled to reimbursement of fees and expenses from the
Executive in an amount not to exceed $25,000. Such amounts shall be paid to
Executive within 30 days after the arbitration decision is made.


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IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the day and year set
forth above


	
 

	
 

	
 

	
 


	
 

	
SmartPros
 Ltd.

	
 


	
 

	
 

	
 

	
 


	
 

	
By:

	
/s/ Allen S.
 Greene

	
 


	
 

	
 

	


	
 


	
 

	
 

	
 

	
 


	
 

	
Title:

	
Chief
 Executive Officer

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
/s/ Stanley
 Wirtheim

	
 


	
 

	
 

	


	
 


	
 

	
 

	
Stanley
 Wirtheim

	
 





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