Exhibit 10.5


 





ESCROW AGREEMENT


 


This
ESCROW AGREEMENT (this “Agreement”), dated effective as of October 1, 2015 (the “Effective
Date”), is by and among Financial Gravity Holdings, Inc., a Texas corporation (the “Company”),
each of the individuals listed on the signature page hereto (the “Sellers”), Edward A. Lyon, as representative
of the Sellers (the “Sellers’ Representative”), and American Escrow Company, as escrow agent (the
“Escrow Agent”).


 


WHEREAS,
the Company and the Sellers have entered into a Purchase Agreement (herein so called), dated the date of this Agreement, pursuant
to which the Company has agreed to purchase all of the issued and outstanding membership interests of Tax Coach Software, LLC,
an Ohio limited liability company (the “Interests”).


 


WHEREAS,
in consideration of the sale of the Interests by the Sellers, the Company has agreed to issue to the Sellers an aggregate of 2,000,000
shares of the Company’s common stock (the “Shares”).


 


WHEREAS,
the Sellers have agreed as a condition of the sale, that the Shares to which they will be entitled under the Purchase Agreement
be deposited, as set forth opposite their respective names in the attached Exhibit A, in escrow as herein provided.


 


WHEREAS,
the Company and the Sellers desire that the Escrow Agent accept the Shares, in escrow, to be held and disbursed as herein provided.


 


IT
IS AGREED:


 


1.           Appointment
of Escrow Agent. The Company and the Sellers hereby appoint the Escrow Agent to act in accordance with and subject to the terms
of this Agreement, and the Escrow Agent hereby accepts such appointment and agrees to act in accordance with and subject to such
terms.


 


2.           Deposit
of Shares. On the date of this Agreement, the Company shall deliver to the Escrow Agent certificates representing the Shares,
to be held and disbursed subject to the terms and conditions of this Agreement. Each Seller acknowledges that the certificate representing
his or her Shares is legended to reflect the deposit of such Shares under this Agreement. 


 


3.           Disbursement
of the Shares; Return of the Shares.


 


(a)            
On any day during the thirty-six (36) months following the Closing Date (as defined in the Purchase Agreement), the Sellers’
Representative shall have the right to cause the Shares held by the Escrow Agent to be distributed to the Sellers in accordance
with the ownership reflected in Exhibit A by providing written notice of the Sellers’ Representative’s decision
to do so to the Escrow Agent and the Company (the “Seller Distribution Notice”), in which case the Shares
shall be released from the escrow and transmitted to the Sellers’ Representative on behalf of the Sellers. The Seller Distribution
Notice shall have the effect of terminating any right the Sellers’ Representative may have to unwind the transaction evidenced
by the Purchase Agreement.


 


 


 




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(b)            
If the average daily Closing Price (as defined herein) of the Shares for any continuous 10-day trading period equals or exceeds
$3.00 during the thirty-six (36) months following the Closing Date, then the Company shall have the right to cause the
Shares held by the Escrow Agent to be distributed to the Sellers in accordance with the ownership reflected in Exhibit A
by providing written notice of the Company’s decision to do so to the Escrow Agent and the Sellers’ Representative
(the “Company Distribution Notice”), in which case the Shares shall be released from the escrow and transmitted
to the Sellers’ Representative on behalf of the Sellers. The Company Distribution Notice shall have the effect of terminating
any right the Sellers’ Representative may have to unwind the transaction evidenced by the Purchase Agreement.


 


(c)            
If the Shares do not trade so as to provide a Closing Price during the thirty-six (36) months following the Closing Date, or if
the average daily Closing Price (as defined herein) of the Shares for any continuous 10-day trading period fails to equal
or exceed $3.00 during the thirty-six (36) months following the Closing Date, then no later than five (5) days following
the conclusion of such thirty-six (36) month period, the Sellers’ Representative shall have the right to unwind the transaction
evidenced by the Purchase Agreement by providing written notice of the Sellers’ Representative’s decision to do so
to the Escrow Agent and the Company, in which case the Purchaser will immediately transfer and convey the Interests back to the
Sellers in redemption of their Shares, and simultaneously therewith the Shares (then held by the Escrow Agent) will be returned
to the Purchaser. The Company, the Sellers, and the Seller’s Representative agree that if the transaction evidenced by the
Purchase Agreement is unwound as contemplated in this subsection (c), such unwinding shall have no impact on the Company’s
recognition of revenue for Tax Coach Software, LLC for any prior fiscal period.


 


For purposes of this
Agreement, the “Closing Price” for any day means the last closing trade price for the Shares on the electronic bulletin
board for the Shares as reported by Bloomberg, or, if the Shares become listed on the NASDAQ Capital Market, on such market, prior
to 4:00 p.m., New York City Time, or, if the foregoing do not apply, the highest bid price as reported on the “pink sheets”
by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.) at the close of trading. If the Shares become listed for trading
on the American or New York Stock Exchange during the thirty-six (36) months following the Closing Date, then the Shares shall
be deemed to have been traded at the $3.00 benchmark provided herein.


 


4.           Rights
of Sellers in Shares.


 


4.1.           Voting
Rights as a Shareholder. The Sellers shall retain all of their rights as shareholders of the Company during the Escrow Period,
including the right to vote the Shares.


 


4.2.           Dividends
and Other Distributions in Respect of the Shares. During the Escrow Period, all dividends or distributions payable in cash
with respect to the Shares shall be paid to the Sellers, but all dividends or distributions payable in stock or other non-cash
property (“Non-Cash Dividends”) shall be delivered to the Escrow Agent to hold in accordance with the terms hereof.
As used herein, the term “Shares” shall be deemed to include the Non-Cash Dividends distributed thereon, if any. 


 


 


 




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4.3.           Restrictions
on Transfer. During the Escrow Period, no sale, transfer or other disposition may be made of any or all of the Shares except
transfers to (i) a member of a Seller’s immediate family or to a trust, by bona fide gift, the beneficiary of which is a
Seller or a member of a Seller’s immediate family for estate planning purposes, (ii) by virtue of the laws of descent and
distribution upon death, or (iii) pursuant to a qualified domestic relations order; provided, however, that such transfers may
be implemented only upon the respective transferee’s written agreement to be bound by the terms and conditions of this Agreement.


 


5.           Concerning
the Escrow Agent.


 


5.1.           Disagreement
of the Parties. In the event of a dispute between or conflicting claims by or among the parties or any other person or entity
with respect to all or a portion of the Shares or the terms of this Agreement, the Escrow Agent shall be entitled in its sole discretion
to refuse to comply with any claims, demands or instructions with respect to the Shares so long as such dispute or conflict shall
continue, and the Escrow Agent shall not be or become liable in any way to the parties for such refusal or failure to comply. The
Escrow Agent shall not be required to act until, in its sole discretion, (a) such conflicting or adverse claims or demands either
(i) shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment
or decree is not subject to appeal or (ii) shall have been settled by agreement between the conflicting parties as evidenced in
a writing satisfactory to the Escrow Agent or (b) the Escrow Agent shall have received security or indemnity satisfactory to it
sufficient to hold it harmless from and against any and all claims, actions, losses, liabilities, costs, damages or expenses, including
reasonable attorneys’ fees.


 


5.2.            The
Escrow Agent agrees to hold and dispose of the Shares in accordance with the instructions and upon the terms and conditions set
forth in this Agreement.


 


The Escrow Agent undertakes
to perform only those duties expressly set forth herein and no duties shall be implied.


 


The Escrow Agent shall have
no liability under and no duty to inquire as to the provisions of any agreement of the Company other than this Agreement.


 


The Escrow Agent is not a
party to, or bound by any agreement that may be deposited under, evidenced by, or that arises out of the foregoing instructions.


 


The Escrow Agent acts hereunder
as a depository only and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or
validity of any instrument deposited with it hereunder, or with respect to the form or execution of the same, or the identity,
authority, or rights of any person executing or depositing the same.


 


 


 






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The Escrow Agent shall not
be required to take or be bound by notice of any default of any person, or to take any action with respect to such default involving
any expense or liability, unless notice in writing is given to an officer of the Escrow Agent of such default and unless it is
indemnified in a manner satisfactory to it against any such expense or liability. These instructions shall not be subject to rescission
or modification except upon receipt by the Escrow Agent of written instructions of the Company or its successor in interest, and
no such modification shall be effective unless and until consented to in writing by the Escrow Agent.


 


The Escrow Agent shall be
protected in acting upon any notice, request, waiver, consent, receipt, or other paper or document believed by the Escrow Agent
to be genuine and to be signed by the proper party or parties.


 


The Escrow Agent shall be
under no duty to inquire into or investigate the validity, accuracy or content of any document.


 


The Escrow Agent shall not
be liable for any error of judgment or for any act done or step taken or omitted by it in good faith, or for any mistake of fact
or law, or for anything that it may do or refrain from doing in connection herewith, except its own willful misconduct, and Escrow
Agent shall have no duties to anyone except those signing these instructions.


 


The Escrow Agent assumes
no liability, and the Company consents and agrees that the Escrow Agent shall have no liability, for any defalcation, insolvency,
receivership or conservatorship of the depository institution. Nor shall the Escrow Agent have any liability due to any of the
parties other than the Escrow Agent filing for bankruptcy or the consequences or effect of such a bankruptcy on the funds and/or
documents deposited hereunder.


 


The Escrow Agent may consult
with legal counsel in the event of any dispute or questions as to the construction of the foregoing instructions, or the Escrow
Agent’s duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected in acting in accordance
with the opinion and instructions of such counsel.


 


Anything
in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including, but not limited to, lost profits and/or savings), even if the Escrow Agent has
been advised of the likelihood of such loss or damage and regardless of the form of action.


 


Unless
the Escrow Agent earlier resigns, this Agreement shall terminate upon final distribution of the Shares by the Escrow Agent.


 


5.3.           Liability;
Indemnification. The Company agrees that the Escrow Agent assumes no liability for and is expressly released from any claim
or claims whatsoever in connection with the receipt, retention and delivery of the Shares except to account for payment and/or
delivery made thereon. Deposit by the Escrow Agent of the Shares (less its charges and expenses incurred herein) comprising this
escrow in court shall relieve Escrow Agent of all further responsibility and liability, and Escrow Agent is hereby expressly authorized
to disregard in its sole discretion any and all notices or warnings given by any of the parties hereto, or by any other person
or corporation, but the Escrow Agent is hereby expressly authorized to regard and to comply with and obey any and all orders, judgments
or decrees entered or issued by any court with or without jurisdiction, and in case Escrow Agent obeys or complies with any such
order, judgment or decree of any court it shall not be liable to the Company or to any other person, firm or corporation by reason
of such compliance, notwithstanding that any such order, judgment or decree has been entered without jurisdiction or has been subsequently
reversed, modified, annulled, set aside or vacated. In case of any suit or proceeding regarding this escrow to which the Escrow
Agent is or may be at any time a party, it shall have a lien on the Shares for any and all cost, attorneys’ fees, whether
such attorneys shall be regularly retained or specially employed and other expenses that it may have incurred or become liable
for on account thereof, and the Company agrees to indemnify and hold harmless Escrow Agent from all loss, costs or damages incurred,
including, but not limited to, attorneys’ fees, by reason of this Agreement or the subject matter hereof or any cause of
action that may be filed in connection therewith and to pay the Escrow Agent, upon demand, all such costs, fees and expenses so
incurred.


 


 


 




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In
the event that (a) the Escrow Agent performs any service not specifically provided hereinabove, or (b) there is any assignment
or attachment of any interest in the subject matter of this escrow or any modification thereof, or (c) any controversy arises hereunder,
or (d) the Escrow Agent is made a party to, or intervenes in, any litigation pertaining to the Shares or the subject matter hereof,
Escrow Agent shall be reasonably compensated therefor and reimbursed for all costs and expenses occasioned thereby; and the Company
agrees to pay the same and to indemnify Escrow Agent against any loss, liability, or expense incurred in any act or thing done
by it hereunder, it being understood and agreed that Escrow Agent may interplead the subject matter of this escrow into any court
of competent jurisdiction in Dallas County, Texas, and the act of such interpleader shall immediately relieve Escrow Agent of its
duties, liabilities, and responsibilities hereunder. 


 


5.4.           Compensation.
The Company agrees to (a) concurrently with the Escrow Agent’s execution of this Agreement, pay the Escrow Agent One Thousand
Five Hundred Dollars ($1,500) for the services to be rendered hereunder, and (b) pay or reimburse the Escrow Agent upon request
for all expenses, disbursements and advances, including reasonable attorneys’ fees and expenses, incurred or made by it in
connection with the preparation, execution, delivery, performance, modification and/or termination of this Agreement.


 


6.           Miscellaneous.


 


6.1.           The
provisions of this Agreement may be waived, altered, amended or supplemented, in whole or in part, only by a writing signed by
the parties hereto. This Agreement and the rights and obligations hereunder of the parties may not be assigned except with the
prior written consent of the other party hereto. This Agreement shall be governed by, construed and enforced in accordance with
the laws of the State of Ohio, without reference to the choice of law provisions thereof. In the event of any dispute arising from
or relating to this Agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute. If
a dispute arises from or relates to this contract or the breach thereof, and if the dispute cannot be settled through direct discussions,
the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under
its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy
or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the American
Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator. The place of arbitration
shall be Cincinnati, Ohio. The arbitration shall be governed by the laws of the State of Ohio. Each party will, upon written request
of the other party, promptly provide the other with copies of all relevant documents. There shall be no other discovery allowed.
Time is of the essence for any arbitration under this agreement and arbitration hearings shall take place within 90 days of filing
and awards rendered within 120 days. The arbitrator shall agree to these limits prior to accepting appointment. The arbitrator
shall award to the prevailing party or parties, if any, as determined by the arbitrator, all of their costs and fees. “Costs
and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrator’s fees, administrative
fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees.
No party to this Agreement is liable to the other party for losses due to, or if it is unable to perform its obligations under
the terms of this Agreement because of, acts of God, fire, floods, strikes, equipment or transmission failure, or other causes
reasonably beyond its control. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.


 


 


 




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6.2.           Notices.
Any communication, notice or document required or permitted to be given under this Agreement shall be given in writing and shall
be deemed received (i) when personally delivered to the relevant party at such party’s address as set forth below, (ii) if
sent by mail (which must be certified or registered mail, postage prepaid) or overnight courier, when received or rejected by the
relevant party at such party’s address indicated below, or (iii) if sent by facsimile, when confirmation of delivery
is received by the sending party:


 


If to the
Escrow Agent:


 


American Escrow
Company


2626 Howell St.,
10th Floor


Dallas, Texas 75204


Attention: Carla
D. Janousek, Senior Vice President


Facsimile: 972.576.2515


 Cjanousek@republictitle.com




 


If to the Company:


 


Financial Gravity Holdings, Inc.


800 N Watters Road, Suite 120


Allen, TX 75013


Attn: Alan Zeffer


 


 


 


 




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With a copy to:


 


Roger A. Crabb, Esq.


Scheef & Stone, LLP


2700 Ross Tower, 500 N. Akard


Dallas, Texas 75201


Facsimile: 214.706.4242


Roger.Crabb@solidcounsel.com


 


If to the Sellers’ Representative
or to any Seller:


 


Edward A. Lyon


ELyon@TaxCoachSoftware.com


 


 


With a copy to:


 


Jack A. Donenfeld,
Esq.


Donenfeld Law,
A Legal Professional Association


1942 Broadway,
Suite 300


Boulder, CO 80302


Facsimile: 513.721.1213


JAD@DonenfeldLaw.com


 


7.       Sellers'
Representative. The Sellers’ Representative shall be the agent and attorney-in-fact of each Seller with full power and
authority to act for all Sellers under this Agreement including deciding, in the Sellers’ Representative’s sole and
unrestricted discretion, to exercise the rights set forth under this Agreement. The Sellers’ Representative shall not be
liable to any other Seller for any actions taken by him pursuant to this power of attorney except in the case of his willful misconduct.
The Sellers’ Representative, on behalf of all Sellers, may negotiate amendments to this Agreement and/or waivers of any of
the provisions hereof; provided that any such amendment or waiver does not adversely affect one or more Sellers in a manner which
is materially different than each other Seller, and provided further that any such amendments and/or waiver shall be subject to
the approval of the Sellers holding at least 95% of the Interests as of the date hereof. This power of attorney shall be deemed
coupled with an interest, shall survive and not be affected by the bankruptcy or disability of any Seller, and shall extend to
each Seller's successors.


 


 




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IN WITNESS WHEREOF,
the undersigned have executed this Agreement as of the date first above written.


 


 


Company:


Financial Gravity Holdings, Inc.


 


 


By: /s/ John Pollock


Name: John Pollock


Title: President and Chief Executive Officer


 


 


Sellers’
Representative:


Edward A. Lyon


 


 


By: /s/ Edward A. Lyon


Edward A. Lyon


Sellers’ Representative


 


Sellers:


TaxTuneup, LLC


 


 


By: /s/ Edward A. Lyon


Edward A. Lyon, Member


 


 


Van Data, LLC


 


 


By: /s/ Keith A. Vandestadt


Keith A. Vandestadt, President


 


 


Prima Stortini, Ltd


 


 


By: /s/ Lisa S. Wells


Lisa S. Wells, Member


 


 


 




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Melissa S. Atchley


 


 


By: /s/ Melissa S. Atchley


Melissa S. Atchley


Individually


 


 


Escrow
Agent:


American Escrow Company


 


 


By: /s/ William A. Kramer


William A. Kramer


Executive Chairman


 


 


 


 


 


 


 


 


 


 


 




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EXHIBIT A


 


 


	
        Name and Address of

        Seller
	 	
        Number

        of Shares
	 	
        Stock

        Certificate Number
	 
	
         TaxTuneup, LLC

         

         
	 	 864,500	 	56	 
	 	 	 	 	 	 
	
        Van Data, LLC

         

         

         
	 	940,500	 	55	 
	 	 	 	 	 	 
	
        Prima Stortini, Ltd

         

         

         
	 	100,000	 	57	 
	 	 	 	 	 	 
	
        Melissa S. Atchley

         

         

         
	 	95,000	 	58	 
	 	 	 	 	 	 


 


 


 


 


 


 


 


 


 


 


 






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