Exhibit
10.5


EMPLOYMENT
AGREEMENT BETWEEN

SMARTPROS LTD.

AND

JOSEPH FISH


This employment agreement (the “Agreement”) dated as
of October 1, 2005 is by and between SmartPros Ltd., a Delaware corporation
(the “Company”), and Joseph Fish, an individual residing at 375 South End
Avenue 20G, New York, New York 10280 (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 & CTO 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.


	
 

	
 

	
 

	
 


	
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 $162,500 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. The first such review will
 be made no later than September 30, 2006 and thereafter the Base Salary shall
 be reviewed on or before September 30st of each succeeding year..


	
 

	
 

	
 

	
 


	
 

	
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. The bonus will be based 50% on
 Company performance and 50% on individual performance.












	
 

	
 

	
 

	
 


	
 

	
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 $600 per month car allowance. The Executive will be entitled to 4
 weeks paid vacation per year. The Company will pay the Executive a $400 per
 month health insurance allowance instead of providing health Insurance to the
 Executive.


	
 

	
 

	
 

	
 


	
 

	
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 November 1, 2005 and continuing until September 30, 2007 (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) any breach of the
 company’s policies or procedures.


	
 

	
 

	
 

	
 


	
 

	
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, (i) the
 Company shall pay to the Executive, at the time otherwise due under Section
 2, all Base Salary at the rate in effect at the time of termination. 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 





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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 first 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 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 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 the Executive’s failure to perform the services contemplated by
 this Agreement as a result of his physical or mental illness or incapacity
 for a period of 2 consecutive months, or a total of 90 days in any 365 day
 period.


	
 

	
 

	
 

	
 


	
 

	
 

	
(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
 October 1, 2005 and September 30, 2006 then upon the occurrence of such
 Change in Control the Executive shall be entitled to 1 years severance pay in
 lieu of any other payments that would be due under any other section of this
 contract in the event the Executive is not continued in a position at the
 same or greater salary as stated in the contract; between October 1, 2006 and
 September 30, 2007 the Executive shall be entitled to 6 months severance pay
 in lieu of any other payments that would be due under any other section of
 this contract in the event the Executive is not continued in a position at
 the same or greater salary.


	
 

	
 

	
 

	
 


	
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 





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Company or use the same for any unauthorized
 purposes without the written 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
 and for 1 year thereafter, 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 





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that the Company or one of its subsidiaries is
 actively engaged in such business at the time the Executive’s 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 the earlier of September 30, 2008 or 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 control of a nature that would be required to be reported in
 response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
 Securities Exchange Act of 1934, as amended, or any similar item, schedule or
 form, whether or not the Company is then subject to such reporting
 requirement.


	
 

	
 

	
 


	
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.





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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 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.


	
 

	
 


	
 

	
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 





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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.





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

	
 


	
 

	
 

	


	
 


	
 

	
Name:

	
Allan S. Greene

	
 


	
 

	
Title:

	
Chief Executive Officer

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
/s/ Joseph Fish

	
 


	
 

	
 

	


	
 


	
 

	
 

	
Joseph Fish

	
 





7






FIRST AMENDMENT

TO

AMENDED EMPLOYMENT AGREEMENT

BETWEEN

SMARTPROS LTD.

AND

JOSEPH FISH


          THIS
FIRST AMENDMENT TO AMENDED EMPLOYMENT AGREEMENT BETWEEN SMARTPROS LTD. AND
JOSEPH FISH, dated
as of October 1, 2007, is made as of this 20th day of August, 2008
between SmartPros Ltd., a Delaware corporation (the “Company”), and Joseph
Fish, vice president and chief technology officer of the Company (the
“Executive”). Capitalized terms used herein, but not otherwise defined, shall
have the same meaning attributed to those terms in the Employment Agreement (as
defined below).


W I T N
E S S E T H:


          WHEREAS, the Company and the Executive have
entered into an Amended Employment Agreement, dated as of October 1, 2007 (the
“Employment Agreement”); and


          WHEREAS, the Company and the Executive have
agreed to amend the Employment Agreement in order to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended.


          NOW, THEREFORE, for good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:


          1.
Section 2.2 of the Employment Agreement is hereby amended by adding the
following sentence:


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“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.
Section 3.3 of the Employment Agreement is hereby amended by adding new
paragraph (e) as follows:


	
 

	
 

	
 


	
 

	
“(e)

	
          Executive
 shall be entitled to a payment or payments under Section 3.3(a) or Section
 3.3(d) 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”).”





          3.
Section 7 of the Employment Agreement is hereby deleted in its entirety and,
replaced by the following:


	
 

	
 


	
“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).”





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          4.
Except as set forth above, the terms of the Employment Agreement shall remain
in full force and effect.


          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

	
 


	
 

	
 

	


	
 


	
 

	
Name: ALLEN
 S. GREENE

	
 


	
 

	
Title: Chief
 Executive Officer

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
/s/ Joseph
 Fish

	
 


	
 

	
 

	


	
 


	
 

	
 

	
     JOSEPH
 FISH

	
 





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