Consulting Agreement



 EXHIBIT 10.1 
  
 CONSULTING AGREEMENT 
  
 This Consulting Agreement (“Agreement”) is made this 12th day of November 2004, between ProsoftTraining, a Nevada corporation (the
“Company”), and Robert G. Gwin (the “Consultant”). 
  
 WHEREAS: 
  
 A. The Company is engaged in the provision
of information and communications technology content and certifications. 
  
 B. Consultant is the current President and Chief Executive Officer of the Company. 
  
 C. Consultant chooses to resign his positions of President and Chief Executive Officer to pursue other professional interests. 
  
 D. The Company and its Board of Directors desire to retain Consultant to
provide continuity to existing operations and to protect the shareholders’ interests until a permanent replacement President and Chief Executive Officer is appointed and sufficiently prepared to perform the duties so required. 
  
 E. The Company and Consultant desire to enter into this Employment Agreement
to memorialize the revised terms of employment. 
  
 F. NOW,
THEREFORE, in consideration of the promises and mutual covenants herein set forth, the parties do hereby agree and promise as follows: 
  
 1. Engagement. The Company hereby employs Consultant and Consultant hereby accepts employment under the terms and conditions set forth below.
Consultant is also a duly elected member of the Company’s board of directors and currently serves as its Chairman. Such role exists and is expected to continue independently of this Agreement and any subsequent modification or termination
hereof. Consultant shall perform such advisory, consultative, investor relations, public relations, and business and relationship development duties in connection with the business of the Company as the Board of Directors of the Company may from
time to time assign consistent with Consultant’s role. 
  
 2.
Term. The term of this Agreement shall begin on November 12, 2004 and shall continue until November 30, 2006, unless earlier terminated pursuant to the provisions hereof. 
  
 3. Compensation. 
  
 3.1 Consultant shall receive his existing base salary of $200,000 per year, payable in equal installments on the Company’s regular payroll dates,
through November 30, 2004. 
  
 3.2 Consultant shall receive a
payment in one sum per month on the first of the Company’s regular payroll dates in that month (the “Monthly Payment”), of: 
  
 (a) $7,000 per month for each of the months December 2004 through May 2005, inclusive, 
  
 (b) $6,000 per month for each of the months June 2005 through November 2005, inclusive, and 
  
 (c) $5,000 per month for each of the months December 2005 through November
2006, inclusive, 
  
 which Monthly Payment the Company shall continue to pay
during the term of this Agreement until the Company is no longer obligated to pay the same pursuant to the provisions of Section 6 hereof. 







 3.3 The Company shall reimburse Consultant for actual expenses incurred by Consultant in performing his
duties hereunder, including but not limited to travel, telephone and computer-related expenses. 
  
 4. Other Matters. 
  
 4.1 Disability Policy. The Company shall maintain that certain disability policy provided to Consultant through the end of the period covered by all
premiums rightly payable prior to December 1, 2004. Thereafter, such policy premiums shall be paid by Consultant if he so chooses to retain said policy. 
  
 4.2 Vacation. The Company shall pay to Consultant, on the first regular Company payroll date in December 2004, the value of all accrued and unused
vacation through November 30, 2004. Thereafter, Consultant shall not accrue any vacation as a result of performing his duties hereunder. 
  
 4.3 Existing hardware and software. The Company shall transfer ownership of the computer, peripherals, software and cellular phone currently used by
Consultant, the value of which is less than $500, to Consultant as of December 1, 2004. 
  
 4.4 Telephone and Internet. To enable him to efficiently and effectively perform his duties hereunder, the Company shall continue to provide Consultant with the existing computer support, email, telephone and fax
accounts until this Agreement is no longer in effect. 
  
 4.5
Benefits. Consultant shall continue to receive the regular benefits afforded other employees of the Company, at such cost to Consultant as that afforded other employees of the Company, until this Agreement is no longer in effect, at which point
Consultant will become eligible for COBRA benefits. 
  
 5.
Termination. 
  
 5.1 The Company may terminate this Agreement for
cause by giving Consultant written notice. “Cause” shall mean gross negligence or willful misconduct in the performance of Consultant’s duties hereunder. If Consultant disputes the Company’s right to terminate this Agreement for
Cause, the dispute shall be resolved in accordance with Section 9 hereof. Upon termination by the Company for Cause, the Company shall pay Consultant an amount equivalent to the next three Monthly Payments that Consultant would otherwise be owed and
this Agreement thereafter shall be of no further force and effect. 
  
 5.2 Consultant may terminate this Agreement by providing the Company with written notice specifying the date of such termination not less than 90 days prior to the effective date of termination. 
  
 6. Withholding Taxes and Other Deductions. To the extent required by law, the
Company shall withhold from any payments due Consultant under this Agreement any applicable Federal, state or local taxes and such other deductions as are prescribed by law or Company policy. 
  
 7. Proprietary Information. 
  
 7.1 Consultant understands that the Company possesses and will continue to
possess information that has been created, discovered, developed or otherwise become known to the Company (including, without limitation, information created, discovered, developed or made known by Consultant during the period of or arising out of
his employment or engagement by the Company, whether prior to or after the date hereof) or in which property rights have been assigned or otherwise conveyed to the Company, which information has commercial value in the business in which the Company
is engaged. All such information is hereinafter called “Proprietary Information”. By way of illustration, but not limitation, Proprietary Information includes processes, formulas, codes, data, programs, know-how, improvements, discoveries,
developments, designs, inventions, techniques, marketing plans, strategies, forecasts, new products, unpublished financial statements, budgets, projections, licenses, prices, costs, contracts and customer and supplier lists. 







 7.2 In consideration of the compensation received by the Consultant from the Company and the covenants
contained in this Agreement, Consultant agrees as follows: 
  
 7.2.1 All Proprietary Information shall be the sole property of the Company and its assigns, and the Company and its assigns shall be the sole owner of all patents, copyrights, and other rights in connection therewith. Consultant hereby
assigns to the Company rights he may have or acquire in such Proprietary Information. At all times, both during his employment by the Company and after its termination, Consultant will keep in strictest confidence and trust all Proprietary
Information and will not use or disclose any Proprietary Information without the written consent of the Company, except as may be necessary in the ordinary course of performing his duties under this Agreement. 
  
 7.2.2 All documents, records, equipment and other physical property, whether
or not pertaining to Proprietary Information, furnished to Consultant by the Company or produced by Consultant or others in connection with Consultant’s employment with the Company shall be and remain the sole property of the Company. In the
event of the termination of his engagement by him or the Company subject to Section 5 hereof, Consultant will deliver to the Company all documents, notes, drawings, specifications, programs, data, customer lists and other materials of any nature
pertaining to his work with the Company and Consultant will not take with him or use any of the foregoing, any reproduction of any of the foregoing, or any Proprietary Information that is embodied in a tangible medium of expression. 
  
 7.2.3 Consultant recognizes that the Company is engaged in a continuous
program of development and marketing respecting its present and future business. Consultant understands that as part of his employment by the Company he has been and is expected to make new contributions of value to the Company and that his
employment has created a relationship of confidence and trust between him and the Company with respect to certain information applicable to the business of the Company or applicable to the business of any customer of the Company, which has been or
may be made known to Consultant by the Company or by any customer of the Company or which may have been or may be learned by Consultant during the period of his employment by the Company. 
  
 8. Covenant Not to Compete. 
  
 8.1.1 In consideration for the payments to be made under this Agreement, Consultant shall, for the greater of (a) a period of one year or (b) such period
as Consultant may be engaged by the Company, refrain from, either alone or in conjunction with any other person, or directly or indirectly through its present or future affiliates: 
  

	 	(i)	employing, engaging or seeking to employ or engage any person who within the prior twenty-four (24) months had been an officer or employee of the Company, unless in a venture not in
direct competition with the Company; 

  

	 	(ii)	causing or attempting to cause (A) any client, customer or supplier of the Company to terminate or materially reduce its business with the Company, or (B) any officer, Consultant or
consultant of the Company to resign or sever a relationship with the Company; 

  

	 	(iii)	disclosing (unless compelled by judicial or administrative process) or using any confidential or secret information relating to the Company or any of their respective clients,
customers or suppliers; or 

  

	 	(iv)	participating or engaging in (other than through the ownership of five percent (5%) or less of any class of securities registered under the Securities Exchange Act of 1934, as
amended), or otherwise lending assistance (financial or otherwise) to any person participating or engaged in, any of the lines of business in which the Company is participating or engaged on the date of termination in any jurisdiction in which the
Company participates or engages in such line of business on the date of termination. 

  
 8.2 The parties hereto recognize that the laws and public policies of the various states of the United States may differ as to the validity and
enforceability of covenants similar to those set forth in this Section. It is the intention of the parties that the provisions of this Section be enforced to the fullest extent permissible under the laws and policies of each jurisdiction in which
enforcement may be sought, and that the unenforceability (or the modification to conform to such laws or policies) of any provisions of this Section shall not render unenforceable, or impair, the remainder of the provisions of this Section.
Accordingly, if any provision of this Section shall be determined to be invalid or unenforceable, such invalidity or unenforceability shall be deemed to apply only with respect to the operation of such provision in the particular jurisdiction in
which such determination is made and not with respect to any other provision or jurisdiction. 







 8.3 The parties hereto acknowledge and agree that any remedy at law for any breach of the provisions of
this Section would be inadequate, and Consultant hereby consents to the granting by any court of an injunction or other equitable relief, without the necessity of actual monetary loss being proved, in order that the breach or threatened breach of
such provisions may be effectively restrained. 
  
 8.4 The Company
and the Consultant acknowledge that the foregoing restrictive covenants in this Section 8 are essential elements of this Agreement and that, but for the agreement of the Consultant to comply with those covenants, the Company would not have agreed to
enter into this Agreement. The covenants by the Consultant shall be construed as agreements independent of any other provision in this Agreement. 
  
 8.5 The Company and the Consultant intend that the covenants contained in this Section 8 shall be construed as a series of separate covenants, one for
each county of the State of Texas and one for each State of the United States other than Texas. 
  
 8.6 The Company and Consultant understand and agree that, if any portion of the restrictive covenants set forth in this Section 8 is held to be
unreasonable, arbitrary, or against public policy, then that portion of those covenants shall be considered divisible as to time and geographical area. The Company and Consultant agree that, if any court of competent jurisdiction determines that the
specified time period or the specified geographical area of application in any covenant is unreasonable, arbitrary, or against public policy, then a lesser time period, geographical area, or both, that is determined to be reasonable, nonarbitrary,
and not against public policy may be enforced against Consultant. The Company and Consultant agree and acknowledge that they are familiar with the present and proposed operations of the Company and believe that the restrictive covenants set forth in
this Section 8 are reasonable with respect to their subject matter, duration, and geographical application. 
  
 8.7 The parties acknowledge that the status of Consultant in this business and industry is unique and the success of the Company in said business is
materially and substantially dependent upon the continued employment of Consultant, and in the event the employment of Consultant is terminated for any reason, such business of the Company will be substantially and irrevocably damaged. In view
thereof, the parties acknowledge that monetary damages alone will not fully compensate the Company in the event Consultant fails or refuses to comply with the terms of this Section 9 above when applicable, and agree that the Company, in addition to
all other remedies provided in law and in equity, shall have the remedy of injunctive relief and specific performance to enforce the terms of said Section. 
  
 9. Arbitration. Except as otherwise provide herein, any controversies or claims arising out of, or relating to this Agreement or the breach thereof, shall
be settled by arbitration in Austin, Texas in accordance with the rules of, but not subject to the jurisdiction of, the American Arbitration Association, which decision shall be final and binding on the parties, and judgment upon the award rendered
may be entered in any court having jurisdiction thereof. For these purposes the arbitrator shall be an individual who has demonstrated that such individual is familiar with and has experience in the legal issues involving employer-Consultant
relationships and has had no prior prejudicial contacts with either party. In addition to all other remedies provided in law or in equity, the arbitrator is hereby authorized to assess costs and attorneys’ fees against either party if the
arbitrator finds, based on all the facts and circumstances, that the conduct of or the claims made by such party were unreasonable or substantially without merit. 
  
 10. Notice. All notices, requests and other communications hereunder must be in writing (including via email) and will be
deemed to have been duly given only if delivered personally or by facsimile transmission or mailed (first class postage prepaid) to the parties at the following addresses or facsimile numbers: 
  

			
	If to Consultant:	 	Robert G. Gwin
	 	 	rgwin@prosofttraining.com
		
	If to the Company:	 	ProsoftTraining
	 	 	410 North 44th Street
	 	 	Phoenix, AZ 85008
	 	 	Facsimile No: (602) 794-4198
	 	 	Attn: General Counsel








 All such notices, requests and other communications will (i) if delivered personally to the address as provided in this
Section, be deemed given upon delivery, (ii) if delivered by facsimile transmission to the facsimile number as provided in this Section, be deemed given upon receipt, and (iii) if delivered by mail in the manner described above to the address as
provided in this Section, be deemed given upon receipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice, request or other communication is to be delivered
pursuant to this Section). Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving notice specifying such change to the other party hereto. 
  
 11. Invalid Provision. The invalidity or unenforceability of any particular
provision of this Agreement in any jurisdiction shall not affect the other provisions hereof or the validity of that particular provision in any other jurisdiction, and the Agreement shall be construed in all respects as though such invalid or
unenforceable provisions were omitted only in the jurisdiction in which the case is held to be invalid or unenforceable. 
  
 12. Interpretation. This Agreement shall be interpreted in accordance with the laws of the State of Texas. 
  
 13. Successors. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors, assigns, heirs, and legal representatives, including but not limited to any person, firm, corporation or other business entity which at any time, by merger, purchase or otherwise,
acquires all or substantially all of the assets, equity or business of the Company. The duties and covenants of Consultant under this Agreement, being personal, may not be delegated. 
  
 14. Entire Agreement; Modification. This Agreement constitutes the entire agreement between the parties, and may be changed
only by an agreement in writing signed by the parties. 
  
 15.
Headings. Sections and other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 
  
 16. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument. Signatures may be exchanged by telecopy, with original signatures to follow. Each of the parties hereto agrees that it will be bound by its own telecopied signature and that it
accepts the telecopied signatures of the other parties to this Agreement. The original signature pages shall be forwarded to the Company or its counsel and the Company or its counsel will provide all of the parties hereto with a copy of the entire
Agreement. 
  
 IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date first above written. 








					
	“COMPANY”
	
	ProsoftTraining, a Nevada corporation
			
	 	 	By:	 	 /s/ Jeffrey G. Korn


	 	 	Name:	 	Jeffrey G. Korn
	 	 	 	 	Chairman, Compensation Committee
	
	“CONSULTANT”
			
	 	 	By:	 	 /s/ Robert G. Gwin


	 	 	Name:	 	Robert G. Gwin