Exhibit
10.5


 


CONVERTED
RSU ESCROW AGREEMENT


 


THIS
CONVERTED RSU ESCROW AGREEMENT (the “Agreement”) is dated as of August 15, 2019 (the “Closing
Date”), by and among Bright Mountain Media, Inc., a Florida corporation (the “Buyer”),
Slutzky & Winshman, Ltd., an Israeli corporation (“S&W”), the individuals listed in Schedule
I attached hereto (the “RSUs Holders”), the shareholders of S&W (the “Shareholders”),
and Pearlman Law Group LLP, a Florida limited liability partnership, as escrow agent (the “Escrow Agent”).
Capitalized terms used but not defined herein have the meaning afforded to them in the Share Exchange Agreement (defined below).


 


WHEREAS,
on July 31, 2019 the Buyer, Bright Mountain Israel Acquisition Ltd., an Israeli company (in formation) and wholly-owned subsidiary
of the Buyer (the “Merger Sub”), S&W and the Shareholders entered into that certain Share Exchange
Agreement and Plan of Merger (the “Share Exchange Agreement”), pursuant to which the Shareholders agreed
to transfer to the Buyer all of the issued and outstanding Ordinary Shares of S&W;


 


WHEREAS,
in connection with the transactions contemplated by the Share Exchange Agreement, pursuant to Section 2.5 of the Share Exchange
Agreement upon the lapse of thirty (30) days from the filing by Buyer of the Israeli Sub-Plan with the ITA, or earlier (but in
any event not prior to Closing) if permitted under applicable Law or pursuant to the Options Tax Ruling or Interim Tax Ruling,
if obtained, all 3(i) Options shall be exchanged by the Buyer into restricted stock units on account of the Consideration Shares,
under the Buyer’s Compensation Plans (including the Israeli Sub-Plan), in such numbers as set forth opposite to each RSUs
Holder’s name under Schedule B of the Share Exchange Agreement (the “Converted RSUs”),
which will have the same vesting schedule, be subject to the same continued employment conditions and issued at the same specific
Tax route under which such 3(i) Options were granted by S&W;


 


WHEREAS,
Upon the Effective Time, such 3(i) Options shall be deemed to have been cancelled against issuance of the Converted RSUs, without
any further action of the Parties or the RSUs Holders;


 


WHEREAS,
S&W and the RSUs Holders agreed to deposit the Converted RSUs into escrow pending release pursuant to the terms of the Share
Exchange Agreement;


 


WHEREAS,
the parties to the Share Exchange Agreement have determined that all conditions precedent to the Closing have been satisfied;
and


 


WHEREAS,
the Buyer, the RSUs Holders and S&W desire that the Escrow Agent accept the Converted RSUs, Consideration Shares underlying
the vested Converted RSU, plus any and all dividends and distributions thereon (the “Escrow Property”),
in escrow, to be held and disbursed as hereinafter provided.


 


IT
IS AGREED:


 


1.
Appointment of Escrow Agent. The Buyer, the RSUs Holders and S&W 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.
Escrow. On or before the date hereof, the Buyer shall deliver to the Escrow Agent the RSU grant agreements to be
entered between the Buyer and each of the RSUs Holders, and upon vesting of such Converted RSUs, certificates, in each case, representing
the Converted RSUs granted under the RSUs Holders’ names, and in the amounts, as set forth on Schedule B of the Share
Exchange Agreement, to be held and disbursed subject to the terms and conditions of this Agreement, the Share Exchange Agreement,
the Buyers Compensation Plans (including the Israeli Sub-Plan), the 103K Tax Ruling (if applicable) and the RSU grant agreements
to be entered between the Buyer and each of the RSUs Holders. In addition to the legends set forth in the Share Exchange Agreement,
the certificates representing the Consideration Shares, underlying the vested Converted RSUs shall bear the following legend:


 




    	 



    	 



    

 


“THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF THAT CERTAIN ESCROW AGREEMENT DATED AUGUST 15,
2019 BY AND BETWEEN BRIGHT MOUNTAIN MEDIA, INC., SLUTZKY & WINSHMAN, LTD., THE RSUS HOLDERS, THE SHAREHOLDERS AND THE ESCROW
AGENT NAMED THEREIN, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICES OF BRIGHT MOUNTAIN MEDIA, INC.”


 


3.
Disposition of Escrow Property. The Escrow Agent will hold the Escrow Property in escrow until authorized hereunder
to release and deliver the Escrow Property as follows:


 


(a)
Release of Converted RSUs to the 103K Trustee on behalf of an RSUs Holder. From time to time during the Escrow Period (as
defined below), the request to release of any Converted RSUs and/or Consideration Shares underlying the vested Converted RSUs
to the 103K Trustee on behalf of an RSUs Holder in accordance with Section 2.5 of the Share Exchange Agreement and subject to
the terms and conditions the Buyers Compensation Plans (including the Israeli Sub-Plan), 103K Tax Ruling (if applicable) and the
RSU grant agreements to be entered between the Buyer and each of the RSUs Holders, shall be accompanied by written instructions
signed jointly by the Buyer, the RSUs Holder and the Shareholders specifying the number of Converted RSUs and/or Consideration
Shares underlying the vested Converted RSU to be so released (the “RSUs Holder Release Instructions”).
Upon receipt of the RSUs Holder Release Instructions, the Escrow Agent shall promptly, without any further notice, action or deed,
release and deliver such number of Converted RSUs and/or Consideration Shares underlying the vested Converted RSU to the 103K
Trustee on behalf of such RSUs Holder. Any Consideration Shares issuable in connection with any Converted RSUs, which are not
vested in accordance with their terms, following the applicable RSUs Holders’ termination of engagement with S&W or
any Affiliate thereof (collectively “Termination of Engagement”), shall, as soon as practicable following
such Termination of Engagement, be redistributed by Buyer to the 103K Trustee on behalf of the Shareholders in accordance with
the Shareholders’ Pro Rata Share and such number of Consideration Shares shall be released and delivered by the Escrow Agent
to the 103K Trustee on behalf of the Shareholders by written instructions signed by the Shareholders, with a copy to the Buyer
(the “Shareholders Release Instructions” and together with the RSUs Holder Release Instructions, the
“Release Instructions”), without any further notice, action or deed.


 


(b)
Termination of Escrow. The escrow created hereunder shall terminate without any further notice, action or deed, upon the
earlier to occur of (i) the release of all Converted RSUs and/or Consideration Shares underlying the vested Converted RSU to the
103K Trustee on behalf of the RSUs holders and/or redistribution and release to the 103K Trustee on behalf of the Shareholders,
or (ii) twenty-four (24) months following the date on which all Converted RSUs have become vested in accordance with their terms
(the “Termination Date”). To the extent any Escrow Property continues to be held by the Escrow Agent
following the Termination Date, such Escrow Property, if any, shall be delivered to the 103K Trustee on behalf of the applicable
RSUs Holder, or if a Termination of Engagement has occurred in connection with such RSUs Holder, to the 103K Trustee on behalf
of the Shareholders (in accordance with the Shareholders’ Pro Rata Share), automatically without the need of a Release Instructions.


 




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(c)
Disposition Dispute. If either the Buyer, an RSUs Holder, a Shareholder, or S&W believe that the Escrow Property should
not be released by the Escrow Agent at the Termination Date, or pursuant to a notice given under this Agreement prior to the Termination
Date, then such party shall deliver written notice thereof to the Escrow Agent and the other parties to this Agreement prior to
such release (with the failure to timely deliver such notice waiving any right to challenge the release of the Escrow Property).
Upon receipt of such notice, the Escrow Agent may take one of the following actions, in its sole and absolute discretion: (i)
deposit the Escrow Property with the clerk of a court of competent jurisdiction, provided, that upon the deposit by the Escrow
Agent of the Escrow Property with such clerk, the Escrow Agent shall be relieved of all further obligations and released from
all liability hereunder; (ii) file a suit in interpleader in such court and obtain an order from such court requiring all parties
involved to litigate in such court their respective claims arising out of or in connection with the Escrow Property; (iii) continue
to hold the Escrow Property until direction to release the Escrow Property by the final, non-appealable judgment of a court of
competent jurisdiction or by mutual written agreement of the Buyer, S&W, the Shareholders and the applicable RSUs Holder;
or (iv) deliver the Escrow Property to a successor escrow agent mutually selected by the Buyer, the Shareholders and S&W;
provided that the parties hereof release the Escrow Agent from all further liability with respect to the Escrow Property.
In the event that any such controversy arises hereunder pursuant to which the Escrow Agent may take the aforementioned actions
the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the
Escrow Property.


 


(d)
No Discretionary Authority. The Escrow Agent has no discretion with respect to, or duty to make any determination as to,
whether a notice is properly given, nor is the Escrow Agent required to review or evaluate, or be subject to, the Share Exchange
Agreement any other Transaction Document or any other underlying agreement. The Escrow Agent shall have no further duties hereunder
after the disbursement of the Escrow Property in accordance with this Section 3.


 


4.
Rights of the RSUs Holders in Converted RSUs.


 


4.1
Voting and Other Shareholder Rights. An RSUs Holder (and Shareholder) shall not have any voting rights or any other rights
as a shareholder of the Buyer with respect to the Converted RSUs and/or Consideration Shares underlying the vested Converted RSU,
until such time as they are delivered to the 103K Trustee on behalf of the RSUs Holder (or transferred to the 103K Trustee on
behalf of a Shareholder) in accordance with Section 3.


 


4.2
Dividends or Other Distributions in Respect of the Converted RSUs; Adjustments in Number of Converted RSUs. For so long
as the Consideration Shares underlying the vested Converted RSUs are held by the Escrow Agent (the “Escrow Period”),
any dividends or distributions payable in cash or non-cash property (including capital stock of the Buyer) shall be paid with
respect to the Consideration Shares underlying the vested Converted RSUs and held as Escrow Property to be released pari passu
with the Consideration Shares underlying the vested Converted RSUs in accordance with Section 3 above. The number of Converted
RSUs and/or Consideration Shares underlying the vested Converted RSUs, will be adjusted to reflect any split, reverse split, reclassification
or other adjustment to the common stock of the Buyer in the same manner as the number of issued and outstanding shares of the
common stock are adjusted to reflect any such event.


 


4.3
Restrictions on Transfer and Redemption. During the Escrow Period, no sale, transfer or other disposition may be made of
any of the Converted RSUs and/or Consideration Shares underlying the vested Converted RSUs, by the Buyer or an RSUs Holder. During
the Escrow Period, the Buyer shall not be permitted to redeem, substitute or replace the Converted RSUs without the RSUs Holders’
prior written consent or as provided under the Buyers Compensation Plans (including Israeli Sub-Plan). During the Escrow Period,
the Converted RSUs will be reflected on the books and records of the Buyer as issued and outstanding shares.


 




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5.
Concerning the Escrow Agent.


 


5.1
Good Faith Reliance. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith. The Escrow
Agent shall be entitled to consult with external counsel of its own reasonable selection and the opinion of such counsel shall
be full and complete authorization and protection to the Escrow Agent in respect of any action taken or omitted by the Escrow
Agent hereunder in good faith and in accordance with the opinion of such counsel. The Escrow Agent may rely conclusively and shall
be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including internal or external
counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution
and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained)
which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow
Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless
evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the
Escrow Agent are affected, unless it shall have given its prior written consent thereto. It is understood and acknowledged that
certain notices given by the Buyer hereunder may be prepared by the Escrow Agent when acting in its capacity as counsel to the
Buyer, and that fact shall not undermine the validity of any such notice or the Escrow Agent’s ability to rely thereon.


 


5.2
Duties Limited. The Escrow Agent: (i) is not responsible for the performance by the Buyer or the Shareholders of this Agreement
or any of the other Transaction Documents or for determining or compelling compliance therewith; (ii) is only responsible for
holding the Escrow Property in escrow pending release thereof in accordance with Section 3; and (iii) shall not be obligated
to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability
unless it shall have been furnished with indemnification acceptable to it, in its sole and absolute discretion. The duties and
obligations of the Escrow Agent shall be limited to and determined solely by the express provisions of this Escrow Agreement and
no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. The Escrow Agent’s duties
hereunder are purely ministerial and the Escrow Agent is not acting as a fiduciary to the Buyer or the Shareholders. The Escrow
Agent is not bound by and is under no duty to inquire into the terms or validity of any other agreements or documents, including
any agreements which may be related to, referred to in or deposited with the Escrow Agent in connection with this Escrow Agreement,
notwithstanding that the Escrow Agent has acted as counsel to the Buyer in connection with the subject matter thereof.


 


5.3
Indemnification. The Escrow Agent shall be indemnified and held harmless severally and not jointly by the Buyer, S&W
and the RSUs Holders from and against any expenses, including counsel fees and disbursements, or loss suffered by the Escrow Agent
in connection with any action, suit or other proceeding involving any claim which in any way, directly arises out of or relates
to this Agreement, the services of the Escrow Agent hereunder, or the Escrow Property held by it hereunder solely as a result
of its function as Escrow Agent, and not as it relates to its function of Buyer’s counsel. In no event shall Escrow Agent
be liable for special, indirect, consequential, or punitive damages, or damages for lost profits solely as a result of its function
as Escrow Agent, and not as it relates to its function as Buyer’s counsel. In the event of the receipt of notice of any
demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent, in its sole and absolute discretion,
may take the actions set forth in Section 3(c) hereof with respect to the Escrow Property. The provisions of this Section
5.3 shall survive in the event the Escrow Agent resigns or is discharged pursuant to Sections 5.6 or 5.7 below.
The Escrow Agent shall not incur any liability for not performing or fulfilling any duty, obligation or responsibility hereunder
by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to any act or provision of any present
or future Law or Governmental Entity or any act of God or war).


 




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5.4
Fees and Expenses. The Buyer shall be liable for and shall pay all of the Escrow Agent’s out of pocket expenses incurred
by Escrow Agent in the performance of its duties hereunder. The out of pocket expenses shall be paid to the Escrow Agent from
time to time at its request.


 


5.5
Further Assurances. From time to time on and after the date hereof, the Buyer and the Shareholders shall deliver or cause
to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts
as the Escrow Agent shall reasonably request to carry out more effectively the provisions and purposes of this Agreement, to evidence
compliance herewith or to assure itself that it is protected in acting hereunder, but at no additional expense to the Shareholders.


 


5.6
Resignation. The Escrow Agent shall have the right at any time to resign for any reason or no reason at all and be discharged
of its duties as Escrow Agent hereunder by giving written notice of its resignation to the parties hereto at least ten (10) calendar
days prior to the date specified for such resignation to take effect. All obligations of the Escrow Agent hereunder shall cease
and terminate on the effective date of its resignation and its sole responsibility thereafter shall be to hold the Escrow Property,
for a period of ten (10) calendar days following the effective date of resignation, at which time:


 


(i)
if a successor escrow agent shall have been appointed and written notice thereof shall have been given to the resigning Escrow
Agent by parties hereto and the successor escrow agent, then the resigning Escrow Agent shall deliver the Escrow Property to the
successor escrow agent; or


 


(ii)
if a successor escrow agent shall not have been appointed, for any reason whatsoever, the resigning Escrow Agent shall deliver
the Escrow Property to a court of competent jurisdiction in the county in which the Escrow Property is then being held, and take
all necessary steps to do so, and give written notice of the same to the parties hereto.


 


5.7
Discharge of Escrow Agent. The Escrow Agent shall resign and be discharged from its duties as escrow agent hereunder if
so requested in writing at any time jointly by the Buyer, the Shareholders and S&W; provided, that any notice of discharge
must (i) direct the disposition of the Escrow Property by Escrow Agent and (ii) include a full release of the Escrow Agent of
all liability hereunder.


 


5.8
Conflicting Demands. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall
receive instructions with respect to the Escrow Property which, in its sole and absolute discretion, are in conflict either with
other instructions received by it as Escrow Agent or with any provision of this Escrow Agreement, the Escrow Agent shall have
the absolute right to suspend all further performance under this Escrow Agreement (except for the safekeeping of the Escrow Property)
until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole and absolute satisfaction
in accordance with Section 3(c) hereof and provided that Escrow Agent has provided reasonable notice of this uncertainty
and the suspension of its performance to the Buyer and the Shareholders; provided that if the Escrow Agent so suspends
all or some portion of further performance under this Escrow Agreement because of any such uncertainty, then the Escrow Agent
shall use its reasonable best efforts to resolve such uncertainty as soon as reasonably practicable possible so as to be able
to resume such performance.


 




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6.
Miscellaneous.


 


6.1
Governing Law. This Agreement shall for all purposes be deemed to be made under and shall be construed in accordance with
the laws of the State of Florida, without regard to the conflicts of laws principles thereof.


 


6.2
Entire Agreement. This Agreement and the Share Exchange Agreement contains the entire agreement of the parties hereto with
respect to the subject matter hereof and, except as expressly provided herein, may not be changed or modified except by an instrument
in writing signed by the Buyer, S&W, the Shareholders, the RSUs Holders and the Escrow Agent.


 


6.3
Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation thereof.


 


6.4
Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective parties hereto and their
legal representatives, successors and assigns.


 


6.5
Notices. Any notice or other communication required or which may be given hereunder shall be sufficiently given when so
delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit
of such notice, postage prepaid, or sent by facsimile or other electronic transmission (with confirmation of receipt), addressed
as set forth in the Share Exchange Agreement.


 


	If
    to the Buyer:	6400
    Congress Avenue
	 	Suite
    2050
	 	Boca
    Raton, FL 33431
	 	Attention:
    W. Kip Speyer, Chief Executive Officer
	 	email:
    kip@brightmountainmedia.com
	 	 
	With
    a copy to:	Pearlman
    Law Group LLP
	 	200
    S. Andrews Avenue
	 	Suite
    901
	 	Fort
    Lauderdale, FL 33301
	 	Attention:
    Brian A. Pearlman, Esq.
	 	email:
    brian@pslawgroup.net
	 	 
	If
    to S&W:	Slutzky
    & Winshman Ltd.
	 	4
    Ha’Sadnaot Street
	 	Tel-Aviv,
    Israel 46728
	 	Attention:
    Joey Winshman
	 	Email:
    joey@snw.media
	 	Slutzky
    & Winshman Ltd.
	 	 
	with
    a copy to:	H-F
                                         & Co.

        Rubenstein
        House – 7th Floor

        20
        Lincoln Street

        Tel-Aviv,
        Israel 6713412

        Attention:
        Nitzan Hirsch-Falk, Adv.

	 	 
	If
    to the Shareholders:	To
    the addresses set forth on Schedule A of the Share Exchange Agreement.


 




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	If
    to the RSUs Holders:	To
    the address set forth in Schedule I attached hereto.
	 	 
	If
    to the Escrow Agent:	Pearlman
    Law Group LLP
	 	200
    S. Andrews Avenue
	 	Suite
    901
	 	Fort
    Lauderdale, FL 33301
	 	Attention:
    Brian A. Pearlman, Esq.
	 	email:
    brian@pslawgroup.net


 


The
parties may change the persons and addresses to which the notices or other communications are to be sent by giving written notice
to any such change in the manner provided herein for giving notice.


 


6.6
Counterparts. This Agreement may be executed in several counterparts, each one of which shall constitute an original and
may be delivered by facsimile transmission, and together shall constitute one instrument.


 


6.7
No Conflict of Interest. The parties hereof (i) (A) acknowledge and agree that the Escrow Agent’s serving as escrow
agent hereunder shall not constitute a conflict of interest despite the Escrow Agent’s contemporaneously serving as counsel
to the Buyer in connection with the Share Exchange Agreement, this Agreement and the other Transaction Documents and any other
matters, and shall not constitute a conflict of interest in connection with Escrow Agent’s representation of the Buyer in
the future in any matter, (B) waives any conflict of interest resulting from the Escrow Agent’s contemporaneously serving
as counsel to the Buyer in connection with the Share Exchange Agreement, this Agreement and the other Transaction Documents, and
(ii) covenants and agrees not to assert a conflict of interest solely as a result of the Escrow Agent serving in such roles. The
parties agree that the Escrow Agent may serve as counsel to the Buyer in connection with a dispute involving this Agreement or
the Escrow Property; provided that the Escrow Agent shall promptly resign from its duties as Escrow Agent as provided for
in Section 5.6. The parties hereof acknowledge that the provisions of this Section 6.7 constitute a material inducement
for the Escrow Agent to serve as escrow agent hereunder. The parties hereof further acknowledge and agree that they have selected
the Escrow Agent in order to facilitate the consummation of the transactions contemplated by the Share Exchange Agreement and
the retention of the Escrow Property in order to avoid the time, cost and expense of a third party serving as the escrow agent
hereunder.


 




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WITNESS
the execution of this Agreement as of the date first above written.


 


	 	Bright
    Mountain Media, Inc.
	 	 
	 	By:	/s/
    W. Kip Speyer
	 	 	W.
    Kip Speyer, Chief Executive Officer
	 	 
	 	Slutzky
    & Winshman, Ltd.
	 	 
	 	By:	/s/
    Nadav Slutzky
	 	Name:	Nadav
    Slutzky
	 	Its:	Chief
    Executive Officer
	 	 
	 	Shareholders
	 	 
	 	/s/
    Nadav Slutzky
	 	Nadav
    Slutzky
	 	 
	 	/s/
    Joey Winshman
	 	Joey
    Winshman
	 	 
	 	/s/ Eli
    Desatnik
	 	Eli
    Desatnik
	 	 
	 	Pearlman
    Law Group LLP, as Escrow Agent
	 	 
	 	By:	/s/
    Brian A. Pearlman
	 	 	Brian
    A. Pearlman, Esq., Partner


 


[Converted
RSUs Escrow Agreement – Signature Page – August 2019]


 




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WITNESS
the execution of this Agreement as of the date first above written.


 


	 	RSUs
    Holders
	 	 
	 	/s/
    Tomer Goldsmith
	 	Tomer
    Goldsmith
	 	 
	 	/s/
    Daniel Slutzky
	 	Daniel
    Slutzky
	 	 
	 	/s/
    Oded Breiner
	 	Oded
    Breiner
	 	 
	 	/s/
    Shlomy Erba
	 	Shlomy
    Erba


 


[Converted
RSUs Escrow Agreement – Signature Page – August 2019]


 




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Schedule
I


 


	Name	 	Address
	Tomer
    Goldsmith	 	 
	Daniel
    Slutzky	 	 
	Oded
    Breiner	 	 
	Shlomy
    Erba	 	 


 




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