Exhibit 10.1


 


SETTLEMENT
agreement


 


This Settlement Agreement
(this “Agreement”) dated as of October 21, 2016 (the “Effective Date”) is made by and between by Net Element
Inc., a Delaware corporation (the “Guarantor”), and Maglenta Enterprises Inc., a company incorporated and existing
in the Republic of Seychelles (“Maglenta”) and Champfremont Holding Ltd., a company incorporated and existing in the
Republic of Seychelles (“Champfremont” together with Maglenta are collectively, the “Sellers”) (the “Sellers”
and Guarantor are, collectively, the “Parties”).


 


WHEREAS, the Sellers
entered into that certain Acquisition Agreement, dated as of May 20, 2015 (the “Acquisition Agreement”), with ТOT
Group Russia LLC, a limited liability company organized and existing under the laws of the Russian Federation and TOT Group Europe
Ltd., a company organized and existing under the laws of England and Wales (each individually, a “Purchaser” and, collectively,
the "Purchasers"), and certain "Target Companies" (as defined in the Acquisition Agreement), pursuant to which
the Purchasers agreed to purchase from the Sellers and the Sellers agreed to sell to the Purchasers, subject to certain terms and
conditions, 100% of the issued and outstanding ownership interests of each of the Target Companies. Capitalized terms not otherwise
defined in the body of this Agreement shall have the meanings ascribed to such terms in the Acquisition Agreement; and


 


WHEREAS, the pursuant
to Section 2.8 of the Acquisition Agreement, Purchasers had an obligation to pay Sellers the Difference with respect to the Consideration
Shares issued for the first Installment; and


 


WHEREAS, pursuant to
that certain Guaranty between Sellers and Guarantor referenced in Section 5.1.4 of the Acquisition Agreement (the “Guaranty”)
should Purchasers fail to pay the Difference, Guarantor had an obligation to pay same; and


 


WHEREAS, the Purchasers
failed to pay the Difference and Guarantor has agreed to pay the Difference in installments rather than in one payment and Sellers
have agreed to accept same as further provided herein.


 


NOW THEREFORE, based
upon the foregoing and in consideration of the mutual promises contained herein, the Parties agree as follows:


 




     


     


    

 


		1.	Difference Calculation.



 


The Parties agree that
the Difference due to Sellers with respect to the Consideration Shares for the first Installment is Two Million Two Hundred and
Eighty Eight Thousand Six Hundred and Sixty Seven ($2,288,667) Dollars. The Parties also agree that such sum has been accumulating
interest at a rate of ten (10%) percent per annum since it was due on May 20, 2016 and any outstanding principal of the Difference
will accumulate interest at a rate of ten (10%) percent per annum until paid in full. Sellers’ counsel, Reznick Law, PLLC
is authorised to receive for and on behalf of the Sellers any and all payments under this Agreement. The receipt of funds by Sellers’
counsel, Reznick Law, PLLC shall be a complete discharge to Guarantor, each Purchaser and their respective affiliates, employees,
officers, directors, agents, successors and assigns, who shall not be obliged to enquire as to the distribution of such funds.


 


		2.	Payment by Guarantor.



 


a. Guarantor has prior
to the Effective Date wired Four Hundred Thousand ($400,000) Dollars to the trust account of Sellers’ counsel, Reznick Law,
PLLC, (being the account designated by the Sellers) to be held by Reznick Law, PLLC solely for the benefit of Guarantor.
Guarantor hereby directs Reznick Law, PLLC to release same as a partial payment of the Difference under this Agreement. Such sum
shall be first applied to pay any past due and accumulated interest and the remainder shall be applied to reduce the Difference
principal due.


 


b. On the three week
anniversary of the Effective Date (“First Pay Date”) Guarantor shall wire Fifty Thousand ($50,000) Dollars to the below
Sellers’ counsel trust account, Reznick Law, PLLC as a further partial payment of the principal of the Difference:


 


	 	PAY TO:	First Republic Bank
	 	 	111 Pine Street
	 	 	San Francisco, CA 94111
	 	 	 
	 	CLIENT ACCOUNT NAME:	Reznick Law, PLLC
	 	CLIENT ACCOUNT NUMBER:	80003341559
	 	ABA	321081669
	 	REFERENCE:	Maglenta/ Champfremont


 




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c. On each of the one
month anniversaries of the First Pay Date for three months the Guarantor shall pay the Sellers Fifty Thousand ($50,000) Dollars,
to be applied to reduce the principal of the Difference, for a total of One Hundred and Fifty Thousand ($150,000) Dollars.


 


d. Notwithstanding the
above payments, on each three month anniversary of the Effective Date, Guarantor shall pay Sellers all interest that has accumulated
and has not been paid with respect to the Difference.


 


e. On Monday, May 22,
2017 the balance of the Difference together with any and all interest due thereon shall be due and paid by Guarantor to Sellers
TIME BEING OF THE ESSENCE.


 


f. If any payment, other
than the final payment on May 22, 2017 which is due on such date, is past due for more than five (5) business days, among other
remedies available to the Sellers in law and equity, the Sellers may declare the entire unpaid amount of principal of the Difference
and accrued but unpaid interest thereon under this Agreement to be immediately due and payable. The Sellers may also at the expiration
of the said five (5) business day period file the Confession of Judgement, attached hereto and made a part hereof as Exhibit A
(the “Confession”) with a court of competent jurisdiction. In furtherance of the provisions of this Section 2.f., Guarantor
irrevocably appoints the Sellers, as its agent and attorney-in-fact (with full power of substitution) to fill in the blanks in
the Confession and to insert the actual undisputed unpaid amount of principal of the Difference and accrued but unpaid interest
thereon, and take all actions necessary or desirable to effectuate the filing of same with a court of competent jurisdiction and
in order to collect on such debt.


 


g. Guarantor shall have
the right to prepay the indebtedness evidenced by this Agreement, in whole, without penalty at any time upon no less than five
(5) business days prior written notice to Sellers.


 




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h. Any payment made by
the Guarantor hereunder shall be allocated between the Sellers in the following manner: 90% to Maglenta and 10% to Champfremont.
Notwithstanding the foregoing, Guarantor’s payment obligations to the Sellers with respect to the first Installment and the
Difference shall be deemed fully satisfied once the full amount of each required payment has been made pursuant to terms referenced
herein.


 


i. For clarity, a spreadsheet
is attached as Exhibit B showing amounts and timing for payments assuming timely payment of all amounts due hereunder.


 


j. Guarantor hereby agrees
to pay any and all reasonable attorneys’ fees and disbursements (and all other court costs or expenses of legal proceedings)
which Sellers may incur or pay out by reason of, or in connection with, and incidental to, the enforcement of this Agreement in
the event of a default by Guarantor.


 


h. At any time there
remains a balance due with respect to the Difference hereunder, Sellers may convert (“Conversion”) such outstanding
principal and interest, or any part thereof, into such number of fully paid and non-assessable restricted shares (issuable subject
to applicable exemption from registration under the federal and state securities laws and subject to piggy-back registration rights
if Guarantor files after the Effective Date any registration statements on Form S-1 or Form S-3 (in each case subject to applicable
limitations in such forms)) of Common Stock of Guarantor as determined in accordance with the following formula, rounded down to
the nearest whole share:


 


Balance of interest
and principal due under this Agreement


 


PPS


 


where “PPS”
equals the consolidated closing bid price for the Common Stock of Guarantor on the Principal Market as reported by the Principal
Market per share on the day immediately preceding the day of Conversion. “Principal Market”
means the Nasdaq Capital Market; provided however, that in the event the Guarantor’s Common Stock is ever listed or traded
on the New York Stock Exchange, the NYSE MKT, the Nasdaq Global Select Market, the Nasdaq Global Market, the OTC Bulletin Board
or either of the OTCQB marketplace or the OTCQX marketplace of the OTC Markets Group, then the “Principal Market” shall
mean such other market or exchange on which the Company’s Common Stock is then listed or traded.


 




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Compliance with Principal
Market Rules. Notwithstanding anything in this Agreement to the contrary, the total number of shares of Common Stock of Guarantor
that may be issued under this Agreement, shall be limited to 3,011,108 shares of Common Stock of Guarantor (the “Exchange
Cap”), which equals 19.99% of the Company’s outstanding shares of Common Stock as of the date hereof, unless stockholder
approval is obtained to issue more than such 19.99%. The Exchange Cap shall be appropriately adjusted for any stock dividend, stock
split, reverse stock split or similar transaction. The foregoing limitation shall not apply if such stockholder approval has not
been obtained. Notwithstanding the foregoing, Guarantor shall not be required or permitted to issue any shares of Guarantor’s
Common Stock if such issuance would violate the rules or regulations of the Principal Market.


 


		3.	Representations and Warranties.



 


The Parties represent
and warrant that each party has all the requisite legal rights and authority necessary to enter into and execute this Agreement
and to legally bind the Parties to the terms and conditions set forth herein.


 


		4.	Notices.



 


All documents, notices,
requests, demands and other communications that are required or permitted to be delivered or given under this Agreement shall be
in writing and shall be deemed to have been duly delivered or given upon (i) the delivery thereof, if delivered personally or sent
by facsimile, e-mail or (ii) the mailing thereof if sent by overnight courier, such as FedEx or


 


DHL:


 


If to Guarantor:


 


Net Element, Inc.

3363 NE 163rd Street, Suite 705

North Miami Beach, Florida 33160

Attention: Chief Legal Officer

E-mail: swolberg@netelement.com


 




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If to Sellers:


 


Maglenta Enterprises Inc. & Champfremont
Holding Ltd.

c/o Reznick Law, PLLC

900 Third Avenue, 17th floor

New York, NY 10022


 


With a copy to:

REZNICK LAW, PLLC

900 Third Avenue, 17th Floor

New York, NY 10022

Attention: Felix Reznick

E-mail: freznick@reznicklaw.com


 


		5.	Miscellaneous.



 


This Agreement memorializes
the entire agreement between the Parties on the matters enumerated herein only and expressly supersedes any prior or contemporaneous
understandings, representations, or drafts, oral or written, concerning this subject matter that may exist or may have existed.


 


The Parties represent
that they have relied exclusively on the promises and representations set forth in this Agreement and upon no other promises or
representations in determining to execute this Agreement. The Parties further agree that this Agreement shall not subsequently
be modified except by written instrument signed by the Parties or their authorized representatives or attorneys.


 


This Agreement shall
be governed by the laws of the State of New York without reference to the principles of conflicts of law. Each party hereby irrevocably
submits to the jurisdiction of the courts of the State of New York, sitting in New York County, and the courts of the United States
for the Southern District of New York. Each party irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court, any claim
that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum and the right to object,
with respect to any such suit, action or proceeding brought in any such court, that such court does not have jurisdiction over
such party. In any such suit, action or proceeding, each party waives, to the fullest extent it may effectively do so, personal
service of any summons, complaint or other process and agrees that the service thereof may be made by certified or registered mail,
addressed to such party at its address as set forth in the preamble hereinabove.


 




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This Agreement shall
be binding upon and inure to the benefit of the parties hereto, and their respective successors and assigns. If any term or provision
of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms
and provisions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially
the same result as that contemplated by such term or provision. This Agreement cannot be amended orally, or by any course of conduct
or dealing, but only by a written agreement signed by the party to be charged therewith.


 


The waiver by either
party of a breach or violation of any provision of this Agreement shall not operate as or be construed to be a waiver of any subsequent
breach.


 


This Agreement may be
executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument.
This Agreement may be executed via facsimile with an original signature thereafter furnished, provided however that neither party
may avoid any obligation hereunder by failing to provide such original signature.


 


[No Further Text]


 




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IN WITNESS WHEREOF, the undersigned have executed and
delivered this Agreement as of the date set forth in the first paragraph hereof.


 


SELLERS:


 


MAGLENTA ENTERPRISES INC.


 


	By:  	/s/ Evaline Sophie Joubert	 
	Name: Evaline Sophie Joubert	 
	Title: Director	 
	 	 
	CHAMPFREMONT HOLDING LTD.	 
	 	 	 
	By: 	/s/ Nicos Hadjinicolaou	 
	Name: Nicos Hadjinicolaou	 
	Title: Director	 
	 	 
	GUARANTOR:	 
	 	 
	NET ELEMENT, INC.	 
	 	 	 
	By: 	/s/  Steven Wolberg	 
	Name: Steven Wolberg	 
	Title:  Chief Legal Officer	 
	 	 
	ACCEPTED AND AGREED TO BY PURCHASERS:	 
	 	 
	TOT Group Russia LLC	 
	 	 	 
	By: 	/s/  Konstantin Leonidovich Zaripov	 
	Name: Konstantin Leonidovich Zaripov	 
	Title: General Director	 
	 	 
	TOT Group Europe Ltd.	 
	 	 	 
	By: 	/s/  Konstantin Zaripov	 
	Name: Konstantin Zaripov	 
	Title: Company Director	 


 




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EXHIBIT A


 


SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK


____________________________________________X


Maglenta Enterprises Inc., and Champfremont Holding Ltd.


 


Plaintiffs,


 


	 	Index No.
	 	 
	-against-	 
	 	AFFIDAVIT OF
	 	CONFESSION OF
	 	JUDGMENT
	Net Element Inc.	 


 


Defendant.


____________________________________________X


STATE OF NEW YORK)


:ss.:


COUNTY OF NEW YORK)


 


____________________,
being duly sworn, deposes and says that deponent is the principal and authorized signatory of the Defendant corporation herein.


 


The Defendant hereby
confesses judgment herein and authorizes entry thereof against Defendant in the sum of $___________________ and together payments
of interest due less any payments made to the date of entry pursuant to that certain Settlement Agreement between Plaintiffs and
Defendant dated October __, 2016, in the County of New York, State of New York.


 


Defendant, Net Element
Inc. is a Delaware corporation with an address at 3363 NE 163rd Street, Suite 705 North Miami Beach, Florida 33160.


 


This confession of
judgment is for a debt justly due or to become due to the Plaintiffs arising from the following facts:


 


Defendant is indebted
to the Plaintiffs in the sum of _____________________ (which includes past due interest and principal) plus interest at the rate
of ten per cent (10%) per annum per that certain Settlement Agreement between Plaintiffs and dated October __, 2016, in the County
of New York, State of New York. less any payment made to date of entry.


 


	 	NET ELEMENT, INC.
	 	 	 
	 	By: 	 
	 	Name: 	 
	 	Title: 	 


 


Sworn before me this


_____ day of October, 2016


 


______________________


Notary Public


 




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EXHIBIT B


 


 




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calcualtion of payments by
NETE


 


	Principal amount	 	 	2,288,667	 	 	to insert the right amount due
	Interest per month	 	 	0.83	%	 	 
	interest per day	 	 	0.02778	%	 	 



 














	 	 	June	 	 	July	 	 	Aug	 	 	sep	 	 	Oct 1-20, 2016	 	 	Oct 21, 2016	 	 	Oct 21-31,2016	 	 	Nov 1-10, 2016	 	 	Nov 11, 2016
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Principal repayment	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	311,406	 	 	 	 	 	 	 	 	 	 	50,000
	remaining principal	 	 	2,288,667	 	 	 	2,288,667	 	 	 	2,288,667	 	 	 	2,288,667	 	 	 	2,288,667	 	 	 	1,977,261	 	 	 	 	 	 	 	 	 	 	1,927,261
	interest on remaining principal	 	 	19,072	 	 	 	19,072	 	 	 	19,072	 	 	 	19,072	 	 	 	12,305	 	 	 	 	 	 	 	5,315	 	 	 	5,492	 	 	
	interest payments	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	88,594	 	 	 	 	 	 	 	 	 	 	
	total payment due	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	400,000	 	 	 	 	 	 	 	 	 	 	50,000








 























	 	 	Nov 11-30,
    2016	 	 	Dec 1-10, 2016	 	 	Dec 11, 2016	 	 	Dec 11-31,
    2016	 	 	Jan 1-10, 2017	 	 	Jan 11, 2017	 	 	Jan 11-20,
    2017	 	 	Jan 21, 2017	 	 	Jan 21-31,02017
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Principal repayment	 	 	 	 	 	 	 	 	 	 	50,000	 	 	 	 	 	 	 	 	 	 	 	50,000	 	 	 	 	 	 	 	 	 	 	
	remaining principal	 	 	 	 	 	 	 	 	 	 	1,877,261	 	 	 	 	 	 	 	 	 	 	 	1,827,261	 	 	 	 	 	 	 	 	 	 	
	interest on remaining principal	 	 	10,707	 	 	 	5,181	 	 	 	 	 	 	 	10597	 	 	 	5,046	 	 	 	 	 	 	 	4,912	 	 	 	 	 	 	5,403
	interest payments	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	47,251	 	 	
	total payment due	 	 	 	 	 	 	 	 	 	 	50,000	 	 	 	 	 	 	 	 	 	 	 	50,000	 	 	 	 	 	 	 	47,251	 	 	




















 





	 	 	Feb 1-10, 2017	 	 	Feb 11, 2017	 	 	Feb 11-28,
    2017	 	 	Mar 2017	 	 	Apr 1-20, 2017	 	 	Apr 21, 2017	 	 	Apr 21-31,
    2017	 	 	May 20, 2017	 	 	TOTAL
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Principal repayment	 	 	 	 	 	 	50,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,777,261	 	 	2,288,667
	remaining principal	 	 	 	 	 	 	1,777,261	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,777,261	 	 	
	interest on remaining principal	 	 	5,438	 	 	 	 	 	 	 	9,521	 	 	 	14,811	 	 	 	9,874	 	 	 	 	 	 	 	4,937	 	 	 	9,874	 	 	
	interest payments	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	45,047	 	 	 	 	 	 	 	14,811	 	 	195,702
	total payment due	 	 	 	 	 	 	50,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	45,047	 	 	 	 	 	 	 	1,792,071	 	 	2,484,369








 






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