Exhibit 10.1


 


UNIT PURCHASE AGREEMENT


 


UNIT PURCHASE AGREEMENT
(the “Agreement”), dated as of December 29, 2017, by and between NET ELEMENT, INC., a Delaware corporation
(the “Company”), and ESOUSA HOLDINGS LLC, a New York limited liability company (the “Buyer”).
Capitalized terms used herein and not otherwise defined herein are defined in Section 10 hereof.


 


WHEREAS:


 


A.           The
Issuer and Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded
by Section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”), and/or Rule 506 of Regulation
D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”)
under the 1933 Act.


 


B.           In
reliance upon and subject to the respective representations, warranties, covenants, terms and conditions hereinafter set forth,
the Company wishes to sell to the Buyer, and the Buyer wishes to buy from the Company, units (the “Units”) in
an amount equal to Seven Million Five Hundred Fifty Thousand Eight Hundred Eighty-Five Dollars ($7,550,585), with each Unit consisting
of one share of the Company’s common stock (the “Common Stock”), par value $0.0001, and three-fifth (3/5)
of a warrant, where each whole warrant entitles the holder to purchase one share of Common Stock at the Exercise Price (as defined
below) (each a “Purchase Warrant”), in the form attached hereto as Exhibit A-1. “Purchase Shares”
means all or a portion of the number of shares of Common Stock to be sold and purchased hereunder. “Warrant Shares”
means all or a portion of the total number of shares of Common Stock issuable upon full exercise of all Warrants (as defined below).


 


C.           The
parties hereto shall execute and deliver a Registration Rights Agreement, in the form attached hereto as Exhibit B (the “Registration
Rights Agreement”), in accordance with which the Issuer has agreed to provide certain registration rights with respect
to the Registrable Securities (as defined in the Registration Rights Agreement), under the 1933 Act and the rules and regulations
promulgated thereunder, and applicable state securities laws.


 


D.           The
Units, Purchase Shares, the Warrants (as defined below) and the Warrant Shares are collectively referred to herein as the “Securities”.


 


NOW THEREFORE,
the Company and the Buyer hereby agree as follows:


 


1.           PURCHASE
AND SALE OF PURCHASE SHARES AND WARRANTS. 


 


Subject to the terms
and conditions set forth in this Agreement, the Company has the right to sell to the Buyer, and the Buyer has the obligation to
purchase from the Company, Purchase Shares as follows:


 


(a)          Purchase
Shares and Warrant. Subject to the satisfaction (or waiver) of the conditions set forth in this Agreement, the Company shall
issue and sell to Buyer, and Buyer shall purchase from the Company on the Closing Date (as defined below), the number of Units
as is set forth on the Buyer Schedule.


 


(b)          Closing.
The date and time of the closing of the transactions contemplated hereunder shall be 9:00 a.m., New York City time, on the same
Business Day on which the conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such later
date as is mutually agreed to by the Company and the Buyer) (the “Closing Date”). As used herein “Business
Day” means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized
or required by law to remain closed.


 




     


     


    

 


(c)          Purchase
Price. The aggregate purchase price for the Units to be purchased by Buyer (the “Purchase Price”) shall
be paid at the Closing and in the applicable amount as set forth on the Buyer Schedule. Notwithstanding anything to the contrary
contained herein, (i) the Purchase Price for the Purchase Shares purchased at the Closing shall be equal to the Consolidated Closing
Bid Price on the date hereof, and (ii) the Purchase Price per each Purchase Warrant purchased at the Closing shall be equal to
$0.125, and (iii) the exercise price for each Purchase Warrant shall be equal to the Consolidated Closing Bid Price on the date
hereof.


 


(d)          Payment
of Purchase Price; Delivery of Securities. On the Closing Date, (i) Buyer shall pay the Purchase Price to the Company for the
respective Securities to be issued and sold to Buyer at the Closing, by wire transfer of immediately available funds in accordance
with the Company’s written wire instructions and (ii) the Company shall issue to Buyer (A) the Purchase Shares to be issued
at such Closing as set forth on the Buyer Schedule and (B) the Warrants to be issued at such closing as set forth on the Buyer
Schedule (pursuant to which Buyer shall have the right to acquire up to the aggregate number of Warrant Shares as is set forth
on the Buyer Schedule in respect of such Warrants), in all cases, duly executed on behalf of the Company and registered in the
name of Buyer or its designee, all as set forth on the Buyer Schedule. The Securities issued hereunder shall bear a restrictive
legend until such time as Buyer resells such Securities pursuant to the effective Registration Statement or pursuant to Rule 144
under the 1933 Act. To the extent that issuance of any number of shares of Common Stock will cause Buyer’s beneficial ownership
of the Common Stock to exceed the Maximum Percentage (as defined below), the Company shall, in lieu of issuing such shares of Common
Stock that will cause Buyer’s beneficial ownership of the Common Stock to exceed the Maximum Percentage, issue to Buyer warrants,
substantially in the form attached hereto as Exhibit A-2, to purchase, at a purchase price of $0.01 per share, the number of shares
of Common Stock that would cause Buyer’s beneficial ownership to exceed the Maximum Percentage (the “Pre-Funded
Warrants” and together with the Purchase Warrants, the “Warrants”).


 


(e)          Taxes.
The Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance and delivery
of any shares of Common Stock to the Buyer made under this Agreement.


 


(f)          Beneficial
Ownership Limitation. The Company shall not issue and any shares of Common Stock under this Agreement if such shares proposed
to be issued and sold, when aggregated with all other shares of Common Stock then owned beneficially (as calculated pursuant to
Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Buyer and its affiliates would result in the beneficial
ownership by the Buyer and its affiliates of more than 9.99% of the then issued and outstanding shares of Common Stock (the “Maximum
Percentage”).


 


2.           BUYER’S
REPRESENTATIONS AND WARRANTIES.


 


The Buyer represents
and warrants to the Company that as of the date hereof and as of the Commencement Date:


 


(a)          Investment
Purpose. The Buyer is entering into this Agreement and acquiring the Securities for its own account for investment only and
not with a view towards, or for resale in connection with, the public sale or distribution thereof; provided however, by making
the representations herein, the Buyer does not agree to hold any of the Securities for any minimum or other specific term.


 




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(b)          Accredited
Investor Status. The Buyer is an institutional “accredited investor” as that term is defined in Rule 501(a) of
Regulation D of the 1933 Act.


 


(c)          Reliance
on Exemptions. The Buyer understands that the Securities are being offered and sold to it in reliance on specific exemptions
from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon
the truth and accuracy of, and the Buyer's compliance with, the representations, warranties, agreements, acknowledgments and understandings
of the Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of the Buyer to acquire
the Securities.


 


(d)          Information.
The Buyer has been furnished with all materials relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities that have been reasonably requested by the Buyer, including, without limitation,
the SEC Documents (as defined in Section 3(f) hereof). The Buyer understands that its investment in the Securities involves a high
degree of risk. The Buyer (i) is able to bear the economic risk of an investment in the Securities including a total loss, (ii)
has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the
proposed investment in the Securities and (iii) has had an opportunity to ask questions of and receive answers from the officers
of the Company concerning the financial condition and business of the Company and other matters related to an investment in the
Securities. The Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment
decision with respect to its acquisition of the Securities.


 


(e)          No
Governmental Review. The Buyer understands that no United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.


 


(f)          Transfer
or Sale. The Buyer understands that except as provided in the Registration Rights Agreement (as defined in Section 4(a) hereof):
(i) the Securities have not been and are not being registered under the 1933 Act or any state securities laws, and may not be offered
for sale, sold, assigned or transferred unless (A) subsequently registered thereunder or (B) an exemption exists permitting such
Securities to be sold, assigned or transferred without such registration; (ii) any sale of the Securities made in reliance on Rule
144 may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities
under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that
term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations
of the SEC thereunder; and (iii) neither the Company nor any other person is under any obligation to register the Securities under
the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.


 


(g)          Organization.
The Buyer is a limited liability company duly organized and validly existing in good standing under the laws of the State of New
York, and has the requisite organizational power and authority to own its properties and to carry on its business as now being
conducted.


 


(h)          Validity;
Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Buyer and is a valid
and binding agreement of the Buyer enforceable against the Buyer in accordance with its terms, subject as to enforceability to
(i) general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar
laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and (ii) public policy
underlying any law, rule or regulation (including any federal or state securities law, rule or regulation) with regards to indemnification,
contribution or exculpation. The execution and delivery of the Transaction Documents by the Buyer and the consummation by it of
the transactions contemplated hereby and thereby do not conflict with the Buyer’s certificate of organization or operating
agreement or similar documents, and do not require further consent or authorization by the Buyer, its managers or its members.


 




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(i)          Residency.
The Buyer is a resident of the State of New York.


 


(j)          No
Prior Short Selling. The Buyer represents and warrants to the Company that at no time prior to the date of this Agreement has
any of the Buyer, its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly,
any (i) “short sale” (as such term is defined in Section 242.200 of Regulation SHO of the Securities Exchange Act of
1934, as amended (the “1934 Act”)) of the Common Stock or (ii) hedging transaction, which establishes a net
short position with respect to the Common Stock or any other Company’s securities.


 


3.           REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. 


 


The Company represents
and warrants to the Buyer that as of the date hereof and as of the Closing Date:


 


(a)          Organization
and Qualification. The Company and its “Subsidiaries” (which for purposes of this Agreement means any entity in
which the Company, directly or indirectly, owns more than 50% of the voting stock or capital stock or other similar equity interests)
are corporations or limited liability companies duly organized and validly existing in good standing under the laws of the jurisdiction
in which they are incorporated or organized, and have the requisite corporate or organizational power and authority to own their
properties and to carry on their business as now being conducted. Each of the Company and its Subsidiaries is duly qualified as
a foreign corporation or limited liability company to do business and is in good standing in every jurisdiction in which its ownership
of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure
to be so qualified or be in good standing could not reasonably be expected to have a Material Adverse Effect. As used in this Agreement,
“Material Adverse Effect” means any material adverse effect on any of: (i) the business, properties, assets,
operations, results of operations or financial condition of the Company and its Subsidiaries, if any, taken as a whole, or (ii)
the authority or ability of the Company to perform its obligations under the Transaction Documents (as defined in Section 3(b)
hereof).


 


(b)          Authorization;
Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and perform its obligations
under this Agreement, the Registration Rights Agreement and each of any other agreements entered into by the parties on the Commencement
Date and attached hereto as exhibits to this Agreement (collectively, the “Transaction Documents”), and to issue
the Securities in accordance with the terms hereof and thereof, (ii) the execution and delivery of the Transaction Documents by
the Company and the consummation by it of the transactions contemplated hereby and thereby, including without limitation, the issuance
of the Purchase Shares, have been duly authorized by the Company’s Board of Directors or duly authorized committee thereof,
do not conflict with the Company’s Amended and Restated Articles of Incorporation (as amended through the date hereof) or
Bylaws (as mended through the date hereof), and do not require further consent or authorization by the Company, its Board of Directors
or its stockholders (other than as contemplated by Section 1(h) hereof), (iii) this Agreement has been, and each other Transaction
Document shall be on the Closing Date, duly executed and delivered by the Company and (iv) this Agreement constitutes, and each
other Transaction Document upon its execution on behalf of the Company, shall constitute, the valid and binding obligations of
the Company enforceable against the Company in accordance with their terms, except as such enforceability may be limited by (y)
general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally, the enforcement of creditors' rights and remedies and (z) public policy underlying any law, rule or
regulation (including any federal or states securities law, rule or regulation) with regards to indemnification, contribution or
exculpation. The Board of Directors of the Company or duly authorized committee thereof has approved the resolutions (the “Signing
Resolutions”) substantially in the form as set forth as Exhibit C attached hereto to authorize this Agreement
and the transactions contemplated hereby. The Signing Resolutions are valid, in full force and effect and have not been modified
or supplemented in any material respect.


 




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(c)          Capitalization.
As of the date hereof, the authorized capital stock of the Company consists of (i) 100,000,000 shares of Common Stock, par value
$0.0001, of which as of the date hereof, 3,509,048 shares are issued and outstanding, and (ii) 1,000,000 shares of preferred stock,
of which as of the date hereof no shares are issued and outstanding. All of such outstanding shares have been, or upon issuance
will be, validly issued and are fully paid and non-assessable. Except as disclosed in SEC Documents (as defined below), no shares
of the Company’s capital stock are subject to preemptive rights or any other similar rights or any liens or encumbrances
suffered or permitted by the Company, (ii) there are no outstanding debt securities of the Company or any of its Subsidiaries,
(iii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries, or
contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to
issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital
stock of the Company or any of its Subsidiaries, (iv) there are no material agreements or arrangements under which the Company
or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except the Registration
Rights Agreement), (v) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain
any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company
or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries, (vi) there are
no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities
as described in this Agreement and (vii) the Company does not have any stock appreciation rights or “phantom stock”
plans or agreements or any similar plan or agreement. The Company will furnish to the Buyer upon Buyer’s written request
copies of the Company’s Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof
(the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date
hereof (the “Bylaws”).


 


(d)          Issuance
of Securities. Upon issuance and payment therefore in accordance with the terms and conditions of this Agreement, the Purchase
Shares shall be validly issued, fully paid and non-assessable and free from all taxes, liens and charges with respect to the issue
thereof, with the holders being entitled to all rights accorded to a holder of Common Stock. As of the Closing, the Company shall
have reserved from its duly authorized capital stock not less than the sum of 200% of the maximum number of Warrant Shares issuable
upon exercise of the Warrants (without taking into account any limitations on the exercise of the Warrants set forth therein).
The issuance of the Warrant Shares is duly authorized, and upon exercise in accordance with the Warrants, the Warrant Shares, when
issued, will be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, taxes, liens, charges
and other encumbrances with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of
Common Stock. Subject to the accuracy of the representations and warranties of the Buyer in this Agreement, the offer and issuance
by the Company of the Securities are exempt from registration under the 1933 Act. Buyer will have good and marketable title to
the Securities.


 




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(e)          No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Purchase Shares
and Warrants and the reservation for issuance and issuance of the Warrant Shares) will not (i) result in a violation of the Certificate
of Incorporation, including any Certificate of Designations, Preferences and Rights of any outstanding series of preferred stock
of the Company, or the Bylaws or (ii) constitute a default (or an event which with notice or lapse of time or both would become
a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture
or instrument to which the Company or any of its Subsidiaries is a party, or result, to the Company’s knowledge, in a violation
of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and the rules
and regulations of the Principal Market applicable to the Company or any of its Subsidiaries) or by which any property or asset
of the Company or any of its Subsidiaries is bound or affected, except in the case of defaults, terminations, amendments, accelerations,
cancellations and violations under clause (ii), which could not reasonably be expected to result in a Material Adverse Effect.
Except as disclosed in Schedule 3(e), neither the Company nor its Subsidiaries is in violation of any term of or in default under
its Certificate of Incorporation, including any Certificate of Designation, Preferences and Rights of any outstanding series of
preferred stock of the Company, or Bylaws or their organizational charter or bylaws, respectively. Except as disclosed in Schedule
3(e), neither the Company nor any of its Subsidiaries is in violation of any term of or is in default under any material contract,
agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or order or any statute, rule or regulation applicable
to the Company or its Subsidiaries, except for possible violations, defaults, terminations or amendments that could not reasonably
be expected to have a Material Adverse Effect. The business of the Company and its Subsidiaries is not being conducted, and shall
not be conducted, in violation of any law, ordinance, or regulation of any governmental entity, except for possible violations,
the sanctions for which either individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect.
Except as specifically contemplated by this Agreement, reporting obligations under the 1934 Act or as required under the 1933 Act
or applicable state securities laws or the filing of a Listing of Additional Shares Notification Form with the Principal Market,
the Company is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court
or governmental agency or any regulatory or self-regulatory agency in order for it to execute, deliver or perform any of its obligations
under or contemplated by the Transaction Documents in accordance with the terms hereof or thereof. Except for reporting obligations
under the 1934 Act, all consents, authorizations, orders, filings and registrations which the Company is required to obtain pursuant
to the preceding sentence shall be obtained or effected on or prior to the Commencement Date. The Company is not subject to any
notices or actions from or to the Principal Market, except as disclosed in the Current Report on Form 8-K filed by the Company
with the SEC on December 30, 2016, July 3, 2017, August 21, 2017 and October 20, 2017 and other than routine matters incident to
listing on the Principal Market and not involving a violation of the rules of the Principal Market. To the Company’s knowledge,
except as disclosed in the Current Report on Form 8-K filed by the Company with the SEC on December 30, 2016, July 3, 2017, August
21, 2017 and October 20, 2017, the Principal Market has not commenced any delisting proceedings against the Company.


 


(f)          SEC
Documents; Financial Statements. The Company filed current Form 10 information with the SEC over 12 months ago. The Company
has filed all reports and other materials required to be filed by Section 13 or 15(d) of the 1934 Act, as applicable, during the
preceding 12 months (other than certain Form 8-K reports) (all of the foregoing filed prior to the date hereof and all exhibits
included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter
referred to as the “SEC Documents”).


 


(g)          Absence
of Certain Changes. Since December 31, 2016, there has been no material adverse change in the business, properties, operations,
financial condition or results of operations of the Company or its Subsidiaries taken as a whole.


 




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(h)          Acknowledgment
Regarding Buyer’s Status. The Company acknowledges and agrees that the Buyer is acting solely in the capacity of arm’s
length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby and that Buyer
is not (i) an officer or director of the Company or any of its subsidiaries, (ii) an “Affiliate” (as defined
in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of
the Company’s issued and outstanding Common Stock are Affiliates without conceding that any such Persons are “affiliates”
for purposes of federal securities laws) or (iii) to its actual knowledge, a “beneficial owner” of more than 10% of
the shares of Common Stock (as defined for purposes of Rule 13d-3 of the 1934 Act). The Company further acknowledges that the Buyer
is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents
and the transactions contemplated hereby and thereby and any advice given by the Buyer or any of its representatives or agents
in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Buyer’s
purchase of the Securities. The Company further represents to the Buyer that the Company’s decision to enter into the Transaction
Documents has been based solely on the independent evaluation by the Company and its representatives and advisors.


 


(i)          Intellectual
Property Rights. To the Company’s knowledge, the Company and its Subsidiaries own or possess adequate rights or licenses
to use all material trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights
(collectively, “Intellectual Property”) necessary to conduct their respective businesses as now conducted, or
to the extent that the failure to own, possess, license or otherwise hold adequate rights to use Intellectual Property would not,
individually or in the aggregate, have a Material Adverse Effect. To the Company’s knowledge, none of the Company’s
active and registered Intellectual Property will expire or terminate by the terms and conditions thereof within two years from
the date of this Agreement which could reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries
do not have any knowledge of any infringement by the Company or its Subsidiaries of any Intellectual Property of others and there
is no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened against,
the Company or its Subsidiaries regarding Intellectual Property, which could reasonably be expected to have a Material Adverse
Effect.


 


(j)          Environmental
Laws. To the Company’s knowledge, the Company and its Subsidiaries (i) are in material compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of the environment or human health and safety
and with respect to hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”),
(ii) have received all material permits, licenses or other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in material compliance with all terms and conditions of any such permit, license or approval,
except where, in each of the three foregoing clauses, the failure to so comply or receive such approvals could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(k)          Title.
The Company has good and marketable title to all personal property owned by them that is material to the business of the Company
free and clear of all liens, encumbrances and defects except such as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the Company or could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. Any real property and facilities held under lease by the Company,
to the Company’s knowledge, are held by them under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such property and buildings by the Company.


 




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(l)          Application
of Takeover Protections. The Company and its board of directors have taken or will take prior to the Commencement Date all
necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or the
laws of the state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated
by this Agreement, including, without limitation, the Company’s issuance of the Securities and the Buyer’s ownership
of the Securities.


 


(m)         No
Disqualification Event. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer,
other officer of the Company participating in the offering contemplated hereby, any beneficial owner of 20% or more of the Company’s
outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule
405 under the 1933 Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”)
is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the 1933 Act
(a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company
has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.


 


4.           COVENANTS.


 


(a)          Filing
of Form 8-K and Registration Statement. The Company agrees that it shall, within the time required under the 1934 Act, file
a Current Report on Form 8-K disclosing this Agreement and the transaction contemplated hereby. The Company shall use reasonable
commercial efforts to file with the SEC within twenty-one (21) calendar days from the date hereof a new registration statement
covering the sale of the Securities by the Buyer, as set forth further on the Buyer Schedule, in accordance with the terms of the
Registration Rights Agreement between the Company and the Buyer, dated as of the date hereof.


 


(b)          Blue
Sky. The Company shall take such action, if any, as is reasonably necessary in order to obtain an exemption for or to qualify
(i) the initial issuance of the Securities to the Buyer under this Agreement and (ii) any subsequent sale of the Securities by
the Buyer, in each case, under applicable securities or “Blue Sky” laws of the states of the United States in such
states as is reasonably requested by the Buyer from time to time, and shall provide evidence of any such action so taken to the
Buyer at its written request.


 


(c)          Listing.
The Company shall promptly secure the listing of all of the Securities upon each national securities exchange and automated quotation
system that requires an application by the Company for listing, if any, upon which shares of Common Stock are then listed (subject
to official notice of issuance) or traded (including, if at any time applicable, the OTC Bulletin Board, or the OTCQB or OTCQX
market places of the OTC Markets) and shall maintain such listing, so long as any other shares of Common Stock shall be so listed.
The Company shall use its reasonable commercial efforts to maintain the Common Stock’s listing on the Principal Market in
accordance with the requirements of the Registration Rights Agreement. Neither the Company nor any of its Subsidiaries shall take
any action that would be reasonably expected to result in the delisting or suspension of the Common Stock on the Principal Market,
unless the Common Stock is immediately thereafter traded on the New York Stock Exchange, the NYSE MKT, the Nasdaq Global Select
Market, the Nasdaq Global Market, the OTC Bulletin Board, or the OTCQB or OTCQX market places of the OTC Markets. The Company shall
pay all fees and expenses in connection with satisfying its obligations under this Section.


 


(d)          Limitation
on Short Sales and Hedging Transactions. The Buyer agrees that beginning on the date of this Agreement and ending on the date
of termination of this Agreement as provided in Section 10(k), the Buyer and its agents, representatives and affiliates shall not
in any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such term is defined
in Section 242.200 of Regulation SHO of the 1934 Act) of the Common Stock or (ii) hedging transaction, which establishes a net
short position with respect to the Common Stock or any other Company’s securities.


 




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(e)          Due
Diligence. The Buyer shall have the right, from time to time as the Buyer may reasonably deem appropriate, to perform reasonable
due diligence on the Company during normal business hours and subject to reasonable prior notice to the Company. The Company and
its officers and employees shall provide information and reasonably cooperate with the Buyer in connection with any reasonable
request by the Buyer related to the Buyer’s due diligence of the Company, including, but not limited to, any such request
made by the Buyer in connection with the filing of the registration statement described in Section 4(a) hereof; provided, however,
that at no time is the Company required or permitted to disclose material nonpublic information to the Buyer or breach any obligation
of confidentiality or non-disclosure to a third party or make any disclosure that could cause a waiver of attorney-client privilege.
Except as may be required by law, court order or governmental authority, each party hereto agrees not to disclose any Confidential
Information of the other party to any third party and shall not use the Confidential Information of such other party for any purpose
other than in connection with, or in furtherance of, the transactions contemplated hereby. Each party hereto acknowledges that
the Confidential Information shall remain the property of the disclosing party and agrees that it shall take all reasonable measures
to protect the secrecy of any Confidential Information disclosed by the other party.


 


(f)          Disposition
of Securities. The Buyer shall not sell any Securities except as provided in this Agreement, the Registration Rights Agreement
and the “Plan of Distribution” section of the prospectus included in the Registration Statement. The Buyer shall not
transfer any Securities except pursuant to sales described in the “Plan of Distribution” section of the prospectus
included in the Registration Statement or pursuant to Rule 144 under the 1933 Act. In the event of any sales of Securities pursuant
to the Registration Statement, the Buyer will (i) effect such sales pursuant to the “Plan of Distribution” section
of the prospectus included in the Registration Statement, and (ii) will comply with all applicable prospectus delivery requirements.


 


(g)          Issuance
of Additional Securities. The Company agrees that for the period commencing on the date hereof and ending on the date immediately
following the 30th day after the satisfaction of the Registration Statement condition set forth on the Buyer Schedule (the “Restricted
Period”), the Company shall not directly or indirectly issue, offer, sell, grant any option or right to purchase, or
otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of)
any equity security or any equity-linked or related security (including, without limitation, any “equity security”
(as that term is defined under Rule 405 promulgated under the 1933 Act), any securities that are convertible into Common Stock
(the “Convertible Securities”), any preferred stock or any purchase rights for equity securities of the Company.
Notwithstanding the foregoing, the Company may issue during the Restricted Period the following: (i) issuances pursuant to acquisitions,
joint ventures, license arrangements, leasing arrangements and similar transaction arrangements; (ii) equity awards or other compensatory
issuances of the Company’s equity securities to the Company’s and its subsidiaries’ employees, independent contractors,
consultants, officers and/or directors; or (iii) the exercise of preexisting rights under financing agreements, including issuances
pursuant to prior equity lines and warrants or preferred shares currently outstanding, provided, however, that the Company shall
not have modified the terms of any financing agreements or warrants to increase the number of securities that are existing or reduce
the conversion or exercise price, as applicable, except as provided in such financing agreements or warrants. The Company further
agrees that, without prior consent of the Buyer, until the earlier of (A) six (6) months after the date on which the Registration
Statement is declare effective or (B) the date on which Buyer has sold or disposed of all Securities, the Company will not issue
any floating conversion rate or variable priced securities convertible into Common Stock.


 


5.           TRANSFER
AGENT INSTRUCTIONS.


 


So long as the Buyer
complies with its obligations in Section 4(f) and subject to the provisions set forth in Section 1(d), all of the Securities to
be issued under this Agreement shall be issued without any restrictive legend unless the Buyer expressly consents otherwise. The
Company shall issue irrevocable instructions to the Transfer Agent, and any subsequent transfer agent, to issue Common Stock in
the name of the Buyer for the Purchase Shares (the “Irrevocable Transfer Agent Instructions”).


 






    	 	-9-	 



     


    

 


6.           CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL.


 


The obligation of the
Company hereunder to issue and sell the Units at the Closing is subject to the satisfaction, at or before the Closing Date, of
each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by
the Company at any time in its sole discretion by providing Buyer with prior written notice thereof:


 


(a)          Buyer
shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the Company.


 


(b)          Buyer
and each other Buyer shall have delivered to the Company the Purchase Price for the Purchase Shares and Warrants being purchased
by Buyer at the Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company.


 


(c)          The
representations and warranties of Buyer set forth in Section 2 shall be true and correct in all material respects as of the date
when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak
as of a specific date, which shall be true and correct as of such date), and Buyer shall have performed, satisfied and complied
in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or
complied with by Buyer at or prior to the Closing Date.


 


(d)          Buyer
shall have executed and delivered, to the reasonable satisfaction of the Company, such questionnaires and documents in support
thereof that the Company and its agents deem reasonably necessary (or prudent) to comply with the requirements of Regulation D
with respect to the transactions contemplated by this Agreement.


 


7.           CONDITIONS
TO THE BUYER’S OBLIGATION TO PURCHASE.


 


The obligation of Buyer
hereunder to purchase the Units at the Closing is subject to the satisfaction, at or before each applicable Closing Date, of each
of the following conditions, provided that these conditions are for Buyer’s sole benefit and may be waived by Buyer at any
time in its sole discretion by providing the Company with prior written notice thereof:


 


(e)          The
Company and each subsidiary (as the case may be) shall have duly executed and delivered to Buyer each of the Transaction Documents
to which it is a party and the Company shall have duly executed and delivered to Buyer the Purchase Shares and the Warrants as
is set forth on the Buyer Schedule and the Company shall have complied in all respects with all obligations under this Agreement
and the other Transaction Documents, including, without limitation, the Warrants and the Registration Rights Agreement. The Company
shall have delivered to Buyer a certificate, in the form previously provided to the Company by Buyer, executed by the Secretary
of the Company and dated as of the Closing Date, as to (i) the Signing Resolutions consistent with Section 3(b) as adopted by the
Company’s board of directors in a form reasonably acceptable to Buyer, (ii) the Certificate of Incorporation of the Company
and (iii) the Bylaws of the Company as in effect at the Closing.


 




    	 	-10-	 



     


    

 


(f)          Each
and every representation and warranty of the Company shall be true and correct in all material respects as of the date when made
and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a
specific date, which shall be true and correct in all material respects as of such date) and the Company shall have performed,
satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied
or complied with by the Company at or prior to the Closing Date, including, without limitation the issuance of all Securities prior
to the Closing Date as required by the Transaction Documents and the Company has a sufficient number of duly authorized shares
of Common Stock reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents. Buyer
shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the
foregoing effect and as to such other matters as may be reasonably requested by Buyer in the form reasonably acceptable to Buyer.


 


(g)         The
Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale
of the Securities.


 


(h)          No
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated
by the Transaction Documents, and no actions, suits or proceedings shall be in progress or pending by any Person that seeks to
enjoin, prohibit or otherwise adversely affect any of the transactions contemplated by the Transaction Documents.


 


(i)          No
event of default exists or has occurred for which the Company has received a notice from a lender, under any outstanding loan or
credit facility to which the Company or any of its subsidiaries is a party, in connection with a breach of a financial covenant
set forth in the governing agreement of such loan or credit facility;


 


(j)          The
Company shall have delivered to Buyer such other documents, instruments or certificates relating to the transactions contemplated
by this Agreement reasonably required to consummate the transactions contemplated hereby.


 


(k)          Such
other conditions which are set forth on the Buyer Schedule.


 


(l)           No
Event of Default has occurred and is continuing, or any event which, after notice and/or lapse of time, would become an Event of
Default has occurred; and


 


(m)         On
or prior to the Closing, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer,
in order to render inapplicable any control share acquisition, business combination, stockholder rights plan or poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or the
laws of the state of its incorporation, that is or could become applicable to the Buyer as a result of the transactions contemplated
by this Agreement, including, without limitation, the Company's issuance of the Securities and the Buyer's ownership of the Securities.


 


8.           EVENTS
OF DEFAULT. 


 


An “Event
of Default” shall be deemed to have occurred at any time as the following events occurs:


 


(a)          while
any registration statement is required to be maintained effective pursuant to the terms of the Registration Rights Agreement, the
effectiveness of such registration statement lapses for any reason (including, without limitation, the issuance of a stop order)
or is unavailable to the Buyer for the sale of all of the Registrable Securities (as defined in the Registration Rights Agreement),
and such lapse or unavailability continues for a period of thirty ten (10) consecutive Business Days or for more than an aggregate
of thirty (30) Business Days in any 365-day period, which is not in connection with a post-effective amendment to any such registration
statement or the filing of a new registration statement; provided, however, that in connection with any post-effective amendment
to such registration statement or filing of a new registration statement that is required to be declared effective by the SEC,
such lapse or unavailability may continue for a period of no more than sixty (60) consecutive Business Days, which such period
shall be extended for up to an additional thirty (30) Business Days if the Company receives a comment letter from the SEC in connection
therewith;


 




    	 	-11-	 



     


    

 


(b)          the
suspension of the Common Stock from trading for a period of three (3) consecutive trading days;


 


(c)          the
delisting of the Common Stock from the Principal Market, and the Common Stock is not promptly thereafter trading 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;


 


(d)          the
Company’s breach of any representation or warranty (as of the dates made), covenant or other term or condition under any
Transaction Document if such breach could reasonably be expected to have a Material Adverse Effect and except only if such breach
continues uncured for a period of at least twenty (20) Business Days;


 


(e)          if
the Company pursuant to or within the meaning of any Bankruptcy Law; (A) commences a voluntary case, (B) consents to the entry
of an order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially
all of its and its Subsidiaries’ property, or (D) makes a general assignment for the benefit of its creditors;


 


(f)          unless
dismissed within 90 days from each of the following events, a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that (A) is for relief against the Company in an involuntary case, (B) appoints a Custodian of the Company or for
all or substantially all of its and its Subsidiaries’ property, or (C) orders the liquidation of the Company; or


 


(g)          the
Company ceases for more than three (3) consecutive Business Day to be eligible, through its Transfer Agent, to issue and transfer
shares of Common Stock electronically to third parties via the DTC FAST Program of the DWAC system of the Depository Trust Company.


 


9.           CERTAIN
DEFINED TERMS. 


 


For purposes of this
Agreement, the following terms shall have the following meanings:


 


(a)          “1933
Act” means the Securities Act of 1933, as amended.


 


(b)          “Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.


 


(c)          “Business
Day” means any day on which the Principal Market is open for trading during normal trading hours (i.e., 9:30 a.m. to
4:00 p.m. Eastern Time), including any day on which the Principal Market is open for trading for a period of time less than the
customary time.


 


(d)          “Consolidated
Closing Bid Price” means the consolidated closing bid price for the Common Stock on the Principal Market as reported
by the Principal Market.


 




    	 	-12-	 



     


    

 


(e)          “Confidential
Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing,
orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plant and equipment),
which is designated as "Confidential," "Proprietary" or some similar designation. Confidential Information
may also include information disclosed to a disclosing party by third parties. Confidential Information shall not, however, include
any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure
by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the
receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party
at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to
the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s
obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing
party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession;
or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party
prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information
from public disclosure.


 


(f)          “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.


 


(g)          “Person”
means an individual or entity including any limited liability company, a partnership, a joint venture, a corporation, a trust,
an unincorporated organization and a government or any department or agency thereof.


 


(h)          “Principal
Market” means the Nasdaq Capital Market; provided however, that in the event the Company’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.


 


(i)          “Transfer
Agent” means the transfer agent of the Company as set forth in Section 10(f) hereof or such other person who is then
serving as the transfer agent for the Company in respect of the Common Stock.


 


10.         MISCELLANEOUS.


 


(a)          Governing
Law; Jurisdiction; Jury Trial. The corporate laws of the State of Delaware shall govern all issues concerning the relative
rights of the Company and its stockholders. All other questions concerning the construction, validity, enforcement and interpretation
of this Agreement and the other Transaction Documents shall be governed by the internal laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in the County of New York, New York, for the adjudication
of any dispute hereunder or under the other Transaction Documents or in connection herewith or therewith, or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.


 




    	 	-13-	 



     


    

 


(b)          Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile
or pdf (or other electronic reproduction) signature shall be considered due execution and shall be binding upon the signatory thereto
with the same force and effect as if the signature were an original, not a facsimile or PDF (or other electronic reproduction)
signature.


 


(c)          Headings.
The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this
Agreement.


 


(d)          Severability.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.


 


(e)          Entire
Agreement. This Agreement and the Registration Rights Agreement supersede all other prior oral or written agreements between
the Buyer, the Company, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this
Agreement, the other Transaction Documents and the instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company
nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. The Company acknowledges
and agrees that is has not relied on, in any manner whatsoever, any representations or statements, written or oral, other than
as expressly set forth in this Agreement.


 


(f)          Notices.
Any notices, consents or other communications required or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); (iii)
upon receipt, when sent by electronic message (provided the recipient responds to the message and confirmation of both electronic
messages are kept on file by the sending party); or (iv) one (1) Business Day after timely deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:


 


If to the Company:


 


	 	Net Element, Inc. 
	 	3363 NE 163rd Street, Suite 705
	 	North Miami Beach, FL 33160 
	 	Telephone:	(786) 923-0515
	 	Facsimile:	(786) 272-0696
	 	E-mail:	swolberg@netelement.com
	 	Attention:	Chief Legal Officer


 




    	 	-14-	 



     


    

 


If to the Buyer:


 


Esousa Holdings LLC


211 East 43rd Street


Suite 402


New York, NY 10017


Telephone: (646) 278-6785


Facsimile: (212) 732-1131


Email: rachel@esousallc.com


Attention: Rachel Glicksman


 


If to the Transfer
Agent:


 


Continental Stock Transfer &
Trust Company


17 Battery Place, 8th
Floor


New York, NY 10004

Telephone: (212) 845-3217


E-mail: mmullings@continentalstock.com


Attention: Michael G. Mullings


 


or at such other address and/or facsimile
number and/or to the attention of such other person as the recipient party has specified by written notice given to each other
party one (1) Business Day prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient
of such notice, consent or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine
containing the time, date, and recipient facsimile number, (C) electronically generated by the sender’s electronic mail containing
the time, date and recipient email address or (D) provided by a nationally recognized overnight delivery service, shall be rebuttable
evidence of receipt in accordance with clause (i), (ii), (iii) or (iv) above, respectively.


 


(g)          Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and
assigns. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of
the Buyer, including by merger or consolidation. The Buyer may not assign its rights or obligations under this Agreement.


 


(h)          No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.


 


(i)          Public
Disclosure. The Company shall be entitled, without the prior approval of the Buyer, to make any press release or other public
disclosure (including any filings with the SEC) with respect to the transactions contemplated hereby as is required by applicable
law and regulations.


 


(j)          Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.


 


(k)          No
Financial Advisor, Placement Agent, Broker or Finder. The Company represents and warrants to the Buyer that it has not engaged
any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby. The Buyer represents
and warrants to the Company that it has not engaged any financial advisor, placement agent, broker or finder in connection with
the transactions contemplated hereby. Each party shall be responsible for the payment of any fees or commissions, if any, of any
financial advisor, placement agent, broker or finder engaged by such party relating to or arising out of the transactions contemplated
hereby. Each party shall pay, and hold the other party harmless against, any liability, loss or expense (including, without limitation,
attorneys' fees and out of pocket expenses) arising in connection with any such claim.


 




    	 	-15-	 



     


    

 


(l)          No
Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party.


 


(m)        Failure
or Indulgence Not Waiver. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise
thereof or of any other right, power or privilege.


 


[Signatures are on
next page.]


 




    	 	-16-	 



     


    

 


IN WITNESS WHEREOF, the Buyer and
the Company have caused this Unit Purchase Agreement to be duly executed as of the date first written above.


 


	 	THE COMPANY:
	 	 
	 	NET ELEMENT, INC.


 


	 	By: 	/s/ Oleg Firer
	 	Name: 	Oleg Firer
	 	Title: 	Chief Executive Officer


 


	 	BUYER:
	 	 
	 	ESOUSA HOLDINGS LLC


 


	 	By:	/s/ Rachel Glicksman
	 	Name:	Rachel Glicksman
	 	Title:	Managing
    Member 


 




     


     


    

 


BUYER SCHEDULE


 


Name of Buyer: Esousa Holdings LLC


 


Units to be issued and sold to Buyer
at the Closing: 674,460 Units, at the Purchase Price of $7,500,000 plus $0.125 per each Purchase Warrant in the aggregate.


 


Common Stock included in each Unit:
One (1) share of Common Stock of the Company, at a purchase price per share of $11.12.


 


Purchase Warrant included in each Unit:
Three-fifths (3/5) of a five-year warrant to acquire one (1) share of Common Stock at a purchase price of $0.125. The exercise
price of each Purchase Warrant shall be $11.12.


 


Effectiveness of Registration Statement Condition


 


Buyer’s
release from the restrictive covenant set forth in Section 4(g) of this Agreement is subject to the fulfillment of the following
condition:


 


		1.	The Registration Statement (as defined in the Registration
Rights Agreement), which must be filed on Form S-1 or Form S-3, has been declared effective by the SEC and covers the sale by
Buyer (in accordance with the plan of distribution called for by the Registration Rights Agreement) of the Common Stock contemplated
by, and in the amount of, the Required Registration Amount (as defined in the Registration Rights Agreement. If the Registration
Statement is not declared effective within 90 days of the Closing Date, the Company shall incur penalties of 1% of the aggregate
purchase price of the Securities per month for each month, or partial month, that the SEC fails to declare such Initial Registration
Statement Effective. Such penalties shall be payable in cash or in Common Stock and shall lapse upon the six-month anniversary
of the Closing Date so long as the Buyer’s Common Stock are eligible for sale, without restriction, under Rule 144.



 




     


     


    

 


EXHIBIT A-1


FORM OF PURCHASE WARRANT


 


NEITHER THIS WARRANT NOR THE SECURITIES
ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THIS
WARRANT MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE SECURITIES ACT.


 


NET ELEMENT, INC.


 


 WARRANT TO PURCHASE COMMON
STOCK


 


	Warrant No. 2017-[    ]	 	Original Issue Date: December 29, 2017


 





Net Element, Inc., a Delaware corporation
(the “Company”), hereby certifies that, for value received, Esousa Holdings LLC, a New York limited liability
company, or its permitted registered assigns (the “Holder”), is entitled to purchase from the Company up to
a total of [____] shares of common stock, $0.0001 par value (the “Common Stock”), of the Company
(each such share, a “Warrant Share” and all such shares, the “Warrant Shares”) at an exercise
price per share equal to $[______] (as adjusted from time to time as provided in Section 9 herein, the “Exercise
Price”), at any time and from time to time from on or after the Original Issue Date set forth above (the “Trigger
Date”) and through and including 5:30 P.M., prevailing New York time, on December 29, 2022 (the “Expiration
Date”), and subject to the following terms and conditions:


 


This Warrant (this
“Warrant”) is one warrant, or one of a series of similar warrants, issued pursuant to that certain Unit Purchase
Agreement, dated December 29, 2017, by and among the Company and the Purchaser(s) identified therein (the “Purchase Agreement”).
All such warrants are referred to herein, collectively, as the “Warrants.”




 


1.          Definitions.
In addition to the terms defined elsewhere in this Warrant, capitalized terms that are not otherwise defined herein have the meanings
given to such terms in the Purchase Agreement.


 


2.          Registration
of Warrants. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder (which shall include the initial Holder or, as the case may be, any registered
assignee to which this Warrant is permissibly assigned hereunder) from time to time. The Company may deem and treat the registered
Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.



 






     


     


    

 


3.          Registration
of Transfers. Subject to the restrictions on transfer set forth in Sections 2(f) and 4(f) of the Purchase Agreement and compliance
with all applicable securities laws, the Company shall register the transfer of all or any portion of this Warrant in the Warrant
Register, upon (i) surrender of this Warrant, with the Form of Assignment attached as Schedule 2 hereto duly completed and
signed, to the Company’s transfer agent or to the Company at its address specified herein and (ii) if the Registration Statement
is not effective, (x) delivery, at the request of the Company, of documentation reasonably satisfactory to the Company to the effect
that the transfer of such portion of this Warrant may be made pursuant to an available exemption from the registration requirements
of the Securities Act and all applicable state securities or blue sky laws and (y) delivery by the transferee of a written statement
to the Company certifying that the transferee is an “accredited investor” as defined in Rule 501(a) under the Securities
Act and making the representations and certifications set forth in Section 2(b), (c), (d) and (f) of the Purchase Agreement, to
the Company at its address specified in the Purchase Agreement. Upon any such registration or transfer, a new warrant to purchase
Common Stock in substantially the form of this Warrant (any such new warrant, a “New Warrant”) evidencing the
portion of this Warrant so transferred shall be issued to the transferee, and a New Warrant evidencing the remaining portion of
this Warrant not so transferred, if any, shall be issued to the transferring Holder. The acceptance of the New Warrant by the transferee
thereof shall be deemed the acceptance by such transferee of all of the rights and obligations of a Holder of a Warrant.


 


4.          Exercise
and Duration of Warrants.


 


(a)          Subject
to Section 11 hereof, all or any part of this Warrant shall be exercisable by the registered Holder at any time and from time to
time on or after the Trigger Date and through and including 5:30 P.M. prevailing Ney York time on the Expiration Date. At 5:30
P.M., prevailing New York time, on the Expiration Date, the portion of this Warrant not exercised prior thereto shall be and become
void and of no value and this Warrant shall be terminated and no longer outstanding;


 


(b)          The
Holder may exercise this Warrant by delivering to the Company (i) an exercise notice, in the form attached as Schedule 1 hereto
(the “Exercise Notice”), appropriately completed and duly signed, (ii) payment of the Exercise Price in immediately
available funds for the number of Warrant Shares as to which this Warrant is being exercised (which may take the form of a “cashless
exercise” if so indicated in the Exercise Notice and if a “cashless exercise” may occur at such time pursuant
to Section 10 below), and the date such items are delivered to the Company (as determined in accordance with the notice provisions
hereof) is an “Exercise Date.” The delivery by (or on behalf of) the Holder of the Exercise Notice and the applicable
Exercise Price as provided above shall constitute the Holder’s certification to the Company that its representations contained
in Section 2(b), (c), (d) and (f) of the Purchase Agreement are true and correct as of the Exercise Date as if remade in their
entirety (or, in the case of any transferee Holder that is not a party to the Purchase Agreement, such transferee Holder’s
certification to the Company that such representations are true and correct as to such assignee Holder as of the Exercise Date).
The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery
of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a New Warrant evidencing
the right to purchase the remaining number (if any) of Warrant Shares.


 






    	 	2	 



     


    

 


5.          Delivery
of Warrant Shares. Upon exercise of this Warrant, the Company shall promptly (but in no event later than two Trading Days after
the Exercise Date) issue or cause to be issued and cause to be delivered to or upon the written order of the Holder and in such
name or names as the Holder may designate (provided that, if the Registration Statement is not effective and the Holder directs
the Company to deliver a certificate for the Warrant Shares in a name other than that of the Holder or an Affiliate of the Holder,
it shall deliver to the Company on the Exercise Date an opinion of counsel reasonably satisfactory to the Company to the effect
that the issuance of such Warrant Shares in such other name may be made pursuant to an available exemption from the registration
requirements of the Securities Act and all applicable state securities or blue sky laws), a certificate for the Warrant Shares
issuable upon such exercise, free of restrictive legends, unless a registration statement covering the resale of the Warrant Shares
and naming the Holder as a selling stockholder thereunder is not then effective or the Warrant Shares are not freely transferable
pursuant to Rule 144 under the Securities Act pursuant to transactions in which paragraph (c)(1) of such rule do not apply. The
Holder, or any Person permissibly so designated by the Holder to receive Warrant Shares, shall be deemed to have become the holder
of record of such Warrant Shares as of the Exercise Date. If the Warrant Shares are to be issued free of all restrictive legends,
the Company shall, upon the written request of the Holder, use its best efforts to deliver, or cause to be delivered, Warrant Shares
hereunder electronically through The Depository Trust Company or another established clearing corporation performing similar functions,
if available; provided, that, the Company may, but will not be required to, change its transfer agent if its current transfer agent
cannot deliver Warrant Shares electronically through such a clearing corporation.


 


6.          Charges,
Taxes and Expenses. Issuance and delivery of certificates for shares of Common Stock upon exercise of this Warrant shall be
made without charge to the Holder for any issue or transfer tax, transfer agent fee or other incidental tax or expense in respect
of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company; provided, however, that
the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the registration of
any certificates for Warrant Shares or Warrants in a name other than that of the Holder or an Affiliate thereof. The Holder shall
be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise hereof.


 


7.          Replacement
of Warrant. If this Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange
and substitution for and upon cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon
receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction (in such case) and, in each case,
a customary and reasonable indemnity (which shall not include a surety bond), if requested. Applicants for a New Warrant under
such circumstances shall also comply with such other reasonable regulations and procedures and pay such other reasonable third-party
costs as the Company may prescribe. If a New Warrant is requested as a result of a mutilation of this Warrant, then the Holder
shall deliver such mutilated Warrant to the Company as a condition precedent to the Company’s obligation to issue the New
Warrant.


 






    	 	3	 



     


    

 


8.          Reservation
of Warrant Shares. The Company covenants that it will at all times reserve and keep available out of the aggregate of its authorized
but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise
of this Warrant as herein provided, the number of Warrant Shares which are then issuable and deliverable upon the exercise of this
entire Warrant, free from preemptive rights or any other contingent purchase rights of persons other than the Holder (taking into
account the adjustments and restrictions of Section 9). The Company covenants that all Warrant Shares so issuable and deliverable
shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly and validly
authorized, issued and fully paid and nonassessable. The Company will take all such action as may be necessary to assure that such
shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements
of any securities exchange or automated quotation system upon which the Common Shares may be listed.


 


9.          Certain
Adjustments. The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment
from time to time as set forth in this Section 9.


 


(a)          Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend on its Common
Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides
its outstanding shares of Common Stock into a larger number of shares, (iii) combines its outstanding shares of Common Stock into
a smaller number of shares, or (iv) otherwise conducts a corporate action or transaction to change the number of outstanding shares
of Common Stock, including any reorganization, recapitalization, or other transaction similar to (i) through (iii), then in each
such case the Exercise Price shall be multiplied by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding immediately before such event and the denominator of which shall be the number of shares of Common Stock outstanding
immediately after such event. Any adjustment made pursuant to this paragraph shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or distribution or the effective date of such subdivision
or combination, as applicable.


 


(b)          Fundamental
Transactions. If, at any time while this Warrant is outstanding (i) the Company effects any merger or consolidation of the
Company with or into another Person, in which the shareholders of the Company as of immediately prior to the transaction own less
than a majority of the outstanding stock of the surviving entity, (ii) the Company effects any sale of all or substantially all
of its assets or a majority of its Common Stock is acquired by a third party, in each case, in one or a series of related transactions,
(iii) any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which all or substantially
all of the holders of Common Stock are permitted to tender or exchange their shares for other securities, cash or property and
would result in the shareholders of the Company immediately prior to such tender offer or exchange offer owning less than a majority
of the outstanding stock after such tender offer or exchange offer, or (iv) the Company effects any reclassification of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other
securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section
9(a) above) (in any such case, a “Fundamental Transaction”), then the Holder shall have the right thereafter
to receive, upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been entitled
to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of the number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitations
on exercise contained herein (the “Alternate Consideration”). The Company shall not effect any such Fundamental
Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or
the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the obligation
to deliver to the Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled
to purchase and/or receive (as the case may be), and the other obligations under this Warrant. The provisions of this paragraph
(b) shall similarly apply to subsequent transactions analogous to a Fundamental Transaction.


 






    	 	4	 



     


    

 


(c)          Number
of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to paragraph (a) of this Section, the
number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so
that after such adjustment the aggregate Exercise Price payable hereunder for the increased or decreased number of Warrant Shares
shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment.


 


(d)          Calculations.
All calculations under this Section 9 shall be made to the nearest cent or the nearest 1/100th of a share, as applicable.
The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account
of the Company, and the sale or issuance of any such shares shall be considered an issue or sale of Common Stock.


 


10.         Payment
of Exercise Price. The Holder shall pay the Exercise Price in immediately available funds; provided, however, that if,
on any Exercise Date a registration statement registering the issuance or resale of the Warrant Shares under the Securities Act
of 1933, as amended (the “Securities Act”) is not effective, the Holder may, in its sole discretion, satisfy
its obligation to pay the Exercise Price through a “cashless exercise”, in which event the Company shall issue to the
Holder the number of Warrant Shares determined as follows:


 


X = Y [(A-B)/A]


 


where:


 


X = the number of Warrant Shares to be issued to
the Holder.


 


Y = the total number of Warrant Shares with respect
to which this Warrant is being exercised.


 


A = the average of the Closing Sale Prices of the shares
of Common Stock (as reported by Bloomberg Financial Markets) for the five Trading Days ending on the date immediately preceding
the Exercise Date.


 


B = the Exercise Price then in effect for the applicable
Warrant Shares at the time of such exercise.


 






    	 	5	 



     


    

 


For purposes of this Warrant, “Closing
Sale Price” means, for any security as of any date, the last trade price for such security on the principal securities
exchange or trading market for such security, as reported by Bloomberg Financial Markets, or, if such exchange or trading market
begins to operate on an extended hours basis and does not designate the last trade price, then the last trade price of such security
prior to 4:00 p.m., New York Time, as reported by Bloomberg Financial Markets, or if the foregoing do not apply, the last trade
price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg
Financial Markets, or, if no last trade price is reported for such security by Bloomberg Financial Markets, the average of the
bid prices, or the ask prices, respectively, of any market makers for such security as reported in the "pink sheets"
by Pink Sheets LLC. If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing
bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company
and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then the Company
shall, within two business days submit via facsimile (a) the disputed determination of the Warrant Exercise Price to an independent,
reputable investment bank selected by the Company and approved by the Holder or (b) the disputed arithmetic calculation of the
Warrant Shares to the Company's independent, outside accountant. The Company shall cause at its expense the investment bank or
the accountant, as the case may be, to perform the determinations or calculations and notify the Company and the Holder of the
results no later than ten business days from the time it receives the disputed determinations or calculations. Such investment
bank's or accountant's determination or calculation, as the case may be, shall be binding upon all parties absent demonstrable
error. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other
similar transaction during the applicable calculation period.


 


For purposes of Rule 144 promulgated under
the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a cashless exercise transaction
shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced,
on the date this Warrant was originally issued pursuant to the Purchase Agreement (provided that the Commission continues to take
the position that such treatment is proper at the time of such exercise).


 


11.         Limitations
on Exercise. Notwithstanding anything to the contrary contained herein, the number of Warrant Shares that may be acquired by
the Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall be limited to the extent necessary to ensure
that, following such exercise (or other issuance), the total number of shares of Common Stock then beneficially owned by such Holder
and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s
for purposes of Section 13(d) of the Exchange Act, does not exceed 9.99% of the total number of issued and outstanding shares of
Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial
ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
Each delivery of an Exercise Notice hereunder will constitute a representation by the Holder that it has evaluated the limitation
set forth in this Section and determined that issuance of the full number of Warrant Shares requested in such Exercise Notice is
permitted under this Section. The Company’s obligation to issue shares of Common Stock in excess of the limitation referred
to in this Section shall be suspended (and, except as provided below, shall not terminate or expire notwithstanding any contrary
provisions hereof) until such time, if any, as such shares of Common Stock may be issued in compliance with such limitation; provided,
that, if, as of 4:30 p.m., prevailing New York time, on the Expiration Date, the Company has not received written notice that the
shares of Common Stock may be issued in compliance with such limitation, the Company’s obligation to issue such shares shall
terminate. This provision shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially own
in order to determine the amount of securities or other consideration that such Holder may receive in the event of a Fundamental
Transaction as contemplated in Section 9 of this Warrant.


 


12.         No
Fractional Shares. No fractional Warrant Shares will be issued in connection with any exercise of this Warrant. In lieu of
any fractional shares which would otherwise be issuable, subject to Section 11, the number of Warrant Shares to be issued shall
be rounded up to the next whole number.


 






    	 	6	 



     


    

 


13.         Notices.
Any and all notices or other communications or deliveries hereunder (including, without limitation, any Exercise Notice) shall
be in writing and shall be mailed (registered or certified mail, return receipt requested), or personally delivered and shall be
deemed given when so delivered or if mailed, two (2) days after such mailing, in each case to the address specified in the Purchase
Agreement.


 


14.         Warrant
Agent. The Company shall serve as warrant agent under this Warrant. Upon thirty (30) days’ notice to the Holder, the
Company may appoint a new warrant agent. Any corporation into which the Company or any new warrant agent may be merged or any corporation
resulting from any consolidation to which the Company or any new warrant agent shall be a party or any corporation to which the
Company or any new warrant agent transfers substantially all of its corporate trust or shareholders services business shall be
a successor warrant agent under this Warrant without any further act. Any such successor warrant agent shall promptly cause notice
of its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder’s last
address as shown on the Warrant Register.


 


15.         Miscellaneous.


 


(a)          The
Holder, solely in such Person's capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be
deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to
confer upon the Holder, solely in such Person's capacity as the Holder of this Warrant, any of the rights of a stockholder of the
Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification
of stock, consolidation, merger, amalgamation, conveyance or otherwise), receive notice of meetings, receive dividends or subscription
rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive upon
the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities
on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether
such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 15(a), the Company shall
provide the Holder with copies of the same notices and other information given to the shareholders of the Company, contemporaneously
with the giving thereof to the shareholders.


 


(b)          Subject
to the restrictions on transfer set forth on the first page hereof, and compliance with applicable securities laws, this Warrant
may be assigned by the Holder. This Warrant may not be assigned by the Company except to a successor in the event of a Fundamental
Transaction. This Warrant shall be binding on and inure to the benefit of the parties hereto and their respective successors and
assigns. Subject to the preceding sentence, nothing in this Warrant shall be construed to give to any Person other than the Company
and the Holder any legal or equitable right, remedy or cause of action under this Warrant. This Warrant may be amended only in
writing signed by the Company and the Holder, or their successors and assigns. 


 






    	 	7	 



     


    

 


(c)          GOVERNING
LAW; VENUE; WAIVER OF JURY TRIAL. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES
OF CONFLICTS OF LAW THEREOF. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
SITTING IN THE STATE OF NEW YORK, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION
CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY
IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO
THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL
SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED
OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER
THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING
CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. THE COMPANY HEREBY
WAIVES ALL RIGHTS TO A TRIAL BY JURY. 


 


(d)          The
headings herein are for convenience only, do not constitute a part of this Warrant and shall not be deemed to limit or affect any
of the provisions hereof.


 


(e)          In
case any one or more of the provisions of this Warrant shall be invalid or unenforceable in any respect, the validity and enforceability
of the remaining terms and provisions of this Warrant shall not in any way be affected or impaired thereby, and the parties will
attempt in good faith to agree upon a valid and enforceable provision which shall be a commercially reasonable substitute therefor,
and upon so agreeing, shall incorporate such substitute provision in this Warrant.


 


(f)          Except
as otherwise set forth herein, prior to exercise of this Warrant, the Holder hereof shall not, by reason of by being a Holder,
be entitled to any rights of a stockholder with respect to the Warrant Shares.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,


SIGNATURE PAGE FOLLOWS]


 




    	 	8	 



     


    

 


IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed by its authorized officer as of the date first indicated above.


 


	 	NET ELEMENT, INC
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 


 




    	 	9	 



     


    

 


SCHEDULE 1


 


FORM OF EXERCISE NOTICE


 


(To be executed by the Holder to exercise
the right to purchase shares


of Common Stock under the foregoing Warrant)


 


To:         Net
Element, Inc.


 


(1)         The
undersigned is the Holder of Warrant No. __________ (the “Warrant”) issued by Net Element, Inc. a Delaware corporation
(the “Company”). Capitalized terms used herein and not otherwise defined herein have the respective meanings set forth
in the Warrant.


 


(2)         The
undersigned hereby exercises its right to purchase __________ Warrant Shares pursuant to the Warrant.


  


(3)         The
Holder intends that payment of the Exercise Price shall be made as (check one):


 


 ̈       Cash
Exercise 


 


 ̈       “Cashless
Exercise” under Section 10


 


(4)         If
the Holder has elected a Cash Exercise, the Holder shall pay the sum of $_______ in immediately available funds to the Company
in accordance with the terms of the Warrant.


 


(5)         Pursuant
to this Exercise Notice, the Company shall deliver to the Holder _____________ Warrant Shares in accordance with the terms of the
Warrant.


 


(6)         By
its delivery of this Exercise Notice, the undersigned represents and warrants to the Company that in giving effect to the exercise
evidenced hereby, the Holder will not beneficially own in excess of the number of shares of Common Stock (as determined in accordance
with Section 13(d) of the Securities Exchange Act of 1934) permitted to be owned under Section 11 of the Warrant to which this
notice relates.


 


Dated:_______________, _____


 


	Name of Holder: 	 	 


 


	By:	 	 
	Name:	 	 
	Title: 	 	 
	(Signature
    must conform in all respects to name of  Holder as specified on the face of the Warrant)	 


 




     


     


    

 


SCHEDULE 2


 


NET ELEMENT, INC.


 


FORM OF ASSIGNMENT


 


[To be completed and signed only upon transfer
of Warrant]


 


FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto                             
(the “Transferee” the right represented by the within Warrant to purchase                 
shares of Common Stock of Net Element, Inc. (the “Company”) to which the within Warrant relates and appoints                             
attorney to transfer said right on the books of the Company with full power of substitution in the premises. In connection therewith,
the undersigned represents, warrants, covenants and agrees to and with the Company that:


 


		(a)	the offer and sale of the Warrant contemplated hereby is being made in compliance with Section
4(1) of the United States Securities Act of 1933, as amended (the “Securities Act”) or another valid exemption from
the registration requirements of Section 5 of the Securities Act and in compliance with all applicable securities laws of the states
of the United States;



 


		(b)	the undersigned has not offered to sell the Warrant by any form of general solicitation or general
advertising, including, but not limited to, any advertisement, article, notice or other communication published in any newspaper,
magazine or similar media or broadcast over television or radio, and any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising;



 


		(c)	the undersigned has read the Transferee’s investment letter included herewith, and to its
actual knowledge, the statements made therein are true and correct; and



 


		(d)	the undersigned understands that the Company may condition the transfer of the Warrant contemplated
hereby upon the delivery to the Company by the undersigned or the Transferee, as the case may be, of a written opinion of counsel
(which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect
that such transfer may be made without registration under the Securities Act and under applicable securities laws of the states
of the United States.



 


	Dated:             ,     	 	 
	 	 	 
	 	 	(Signature must conform in all respects to name of holder as specified on the face of the Warrant)
	 	 	 
	 	 	 
	 	 	Address of Transferee
	 	 	 
	 	 	 
	 	 	 
	 	 	 


 


	In the presence of:	 
	 	 
	 	 


 






     


     


    




 


EXHIBIT A-2


FORM OF PRE-FUNDED WARRANT


 


NEITHER THIS WARRANT NOR THE SECURITIES
ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THIS
WARRANT MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE SECURITIES ACT.


 


NET ELEMENT, INC.


 


PRE-FUNDED WARRANT TO PURCHASE COMMON
STOCK


 


	Warrant No. 2017-[    ]	 	Original Issue Date: December 29, 2017


 


Net Element, Inc., a Delaware corporation
(the “Company”), hereby certifies that, for value received, Esousa Holdings LLC, a New York limited liability
company, or its permitted registered assigns (the “Holder”), is entitled to purchase from the Company up to
a total of [____]1 shares of common stock, $0.0001 par value (the “Common Stock”), of the Company
(each such share, a “Warrant Share” and all such shares, the “Warrant Shares”) at an exercise
price per share equal to $0.01 (as adjusted from time to time as provided in Section 9 herein, the “Exercise Price”),
at any time and from time to time from on or after the Original Issue Date set forth above (the “Trigger Date”)
and through and including 5:30 P.M., prevailing New York time, on December 29, 2022 (the “Expiration Date”),
and subject to the following terms and conditions:


 


This Pre-Funded Warrant
(this “Warrant”) is one warrant, or one of a series of similar warrants, issued to Holder in lieu of shares
of Common Stock purchased and issuable to Holder that would cause Buyer’s beneficial ownership of the Common Stock of the
Company to exceed the Maximum Percentage, as defined in that certain Unit Purchase Agreement, dated December 29, 2017, by and among
the Company and the Purchaser(s) identified therein (the “Purchase Agreement”), as further set forth in Section
1(f) of the Purchase Agreement. All such warrants are referred to herein, collectively, as the “Warrants.”


 


1.          Definitions.
In addition to the terms defined elsewhere in this Warrant, capitalized terms that are not otherwise defined herein have the meanings
given to such terms in the Purchase Agreement.


 





 



1
Note to Draft: Number of shares issuable upon exercise of Pre-Funded Warrant shall be equal to the number of shares of Common Stock
that would cause Holder’s beneficial ownership of Common Stock in the Company to exceed 9.99%.


 






     


     


    

  


2.          Registration
of Warrants. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder (which shall include the initial Holder or, as the case may be, any registered
assignee to which this Warrant is permissibly assigned hereunder) from time to time. The Company may deem and treat the registered
Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and
for all other purposes, absent actual notice to the contrary.


 


3.          Registration
of Transfers. Subject to the restrictions on transfer set forth in Sections 2(f) and 4(f) of the Purchase Agreement and compliance
with all applicable securities laws, the Company shall register the transfer of all or any portion of this Warrant in the Warrant
Register, upon (i) surrender of this Warrant, with the Form of Assignment attached as Schedule 2 hereto duly completed and
signed, to the Company’s transfer agent or to the Company at its address specified herein and (ii) if the Registration Statement
is not effective, (x) delivery, at the request of the Company, of documentation reasonably satisfactory to the Company to the effect
that the transfer of such portion of this Warrant may be made pursuant to an available exemption from the registration requirements
of the Securities Act and all applicable state securities or blue sky laws and (y) delivery by the transferee of a written statement
to the Company certifying that the transferee is an “accredited investor” as defined in Rule 501(a) under the Securities
Act and making the representations and certifications set forth in Section 2(b), (c), (d) and (f) of the Purchase Agreement, to
the Company at its address specified in the Purchase Agreement. Upon any such registration or transfer, a new warrant to purchase
Common Stock in substantially the form of this Warrant (any such new warrant, a “New Warrant”) evidencing the
portion of this Warrant so transferred shall be issued to the transferee, and a New Warrant evidencing the remaining portion of
this Warrant not so transferred, if any, shall be issued to the transferring Holder. The acceptance of the New Warrant by the transferee
thereof shall be deemed the acceptance by such transferee of all of the rights and obligations of a Holder of a Warrant.


 


4.          Exercise
and Duration of Warrants.


 


(a)          Subject
to Section 11 hereof, all or any part of this Warrant shall be exercisable by the registered Holder at any time and from time to
time on or after the Trigger Date and through and including 5:30 P.M. prevailing New York time on the Expiration Date. At 5:30
P.M., prevailing New York time, on the Expiration Date, the portion of this Warrant not exercised prior thereto shall be and become
void and of no value and this Warrant shall be terminated and no longer outstanding;


 


(b)          The
Holder may exercise this Warrant by delivering to the Company (i) an exercise notice, in the form attached as Schedule 1 hereto
(the “Exercise Notice”), appropriately completed and duly signed, (ii) payment of the Exercise Price in immediately
available funds for the number of Warrant Shares as to which this Warrant is being exercised (which may take the form of a “cashless
exercise” if so indicated in the Exercise Notice and if a “cashless exercise” may occur at such time pursuant
to Section 10 below), and the date such items are delivered to the Company (as determined in accordance with the notice provisions
hereof) is an “Exercise Date.” The delivery by (or on behalf of) the Holder of the Exercise Notice and the applicable
Exercise Price as provided above shall constitute the Holder’s certification to the Company that its representations contained
in Section 2(b), (c), (d) and (f) of the Purchase Agreement are true and correct as of the Exercise Date as if remade in their
entirety (or, in the case of any transferee Holder that is not a party to the Purchase Agreement, such transferee Holder’s
certification to the Company that such representations are true and correct as to such assignee Holder as of the Exercise Date).
The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery
of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a New Warrant evidencing
the right to purchase the remaining number (if any) of Warrant Shares.


 






    	 	2	 



     


    

 


5.          Delivery
of Warrant Shares. Upon exercise of this Warrant, the Company shall promptly (but in no event later than two Trading Days after
the Exercise Date) issue or cause to be issued and cause to be delivered to or upon the written order of the Holder and in such
name or names as the Holder may designate (provided that, if the Registration Statement is not effective and the Holder directs
the Company to deliver a certificate for the Warrant Shares in a name other than that of the Holder or an Affiliate of the Holder,
it shall deliver to the Company on the Exercise Date an opinion of counsel reasonably satisfactory to the Company to the effect
that the issuance of such Warrant Shares in such other name may be made pursuant to an available exemption from the registration
requirements of the Securities Act and all applicable state securities or blue sky laws), a certificate for the Warrant Shares
issuable upon such exercise, free of restrictive legends, unless a registration statement covering the resale of the Warrant Shares
and naming the Holder as a selling stockholder thereunder is not then effective or the Warrant Shares are not freely transferable
pursuant to Rule 144 under the Securities Act pursuant to transactions in which paragraph (c)(1) of such rule do not apply. The
Holder, or any Person permissibly so designated by the Holder to receive Warrant Shares, shall be deemed to have become the holder
of record of such Warrant Shares as of the Exercise Date. If the Warrant Shares are to be issued free of all restrictive legends,
the Company shall, upon the written request of the Holder, use its best efforts to deliver, or cause to be delivered, Warrant Shares
hereunder electronically through The Depository Trust Company or another established clearing corporation performing similar functions,
if available; provided, that, the Company may, but will not be required to, change its transfer agent if its current transfer agent
cannot deliver Warrant Shares electronically through such a clearing corporation.


 


6.          Charges,
Taxes and Expenses. Issuance and delivery of certificates for shares of Common Stock upon exercise of this Warrant shall be
made without charge to the Holder for any issue or transfer tax, transfer agent fee or other incidental tax or expense in respect
of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company; provided, however, that
the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the registration of
any certificates for Warrant Shares or Warrants in a name other than that of the Holder or an Affiliate thereof. The Holder shall
be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise hereof.


 


7.          Replacement
of Warrant. If this Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange
and substitution for and upon cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon
receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction (in such case) and, in each case,
a customary and reasonable indemnity (which shall not include a surety bond), if requested. Applicants for a New Warrant under
such circumstances shall also comply with such other reasonable regulations and procedures and pay such other reasonable third-party
costs as the Company may prescribe. If a New Warrant is requested as a result of a mutilation of this Warrant, then the Holder
shall deliver such mutilated Warrant to the Company as a condition precedent to the Company’s obligation to issue the New
Warrant.


 






    	 	3	 



     


    

 


8.          Reservation
of Warrant Shares. The Company covenants that it will at all times reserve and keep available out of the aggregate of its authorized
but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise
of this Warrant as herein provided, the number of Warrant Shares which are then issuable and deliverable upon the exercise of this
entire Warrant, free from preemptive rights or any other contingent purchase rights of persons other than the Holder (taking into
account the adjustments and restrictions of Section 9). The Company covenants that all Warrant Shares so issuable and deliverable
shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly and validly
authorized, issued and fully paid and nonassessable. The Company will take all such action as may be necessary to assure that such
shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements
of any securities exchange or automated quotation system upon which the Common Shares may be listed.


 


9.          Certain
Adjustments. The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment
from time to time as set forth in this Section 9.


 


(a)          Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend on its Common
Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides
its outstanding shares of Common Stock into a larger number of shares, (iii) combines its outstanding shares of Common Stock into
a smaller number of shares, or (iv) otherwise conducts a corporate action or transaction to change the number of outstanding shares
of Common Stock, including any reorganization, recapitalization, or other transaction similar to (i) through (iii), then in each
such case the Exercise Price shall be multiplied by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding immediately before such event and the denominator of which shall be the number of shares of Common Stock outstanding
immediately after such event. Any adjustment made pursuant to this paragraph shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or distribution or the effective date of such subdivision
or combination, as applicable.


 


(b)          Fundamental
Transactions. If, at any time while this Warrant is outstanding (i) the Company effects any merger or consolidation of the
Company with or into another Person, in which the shareholders of the Company as of immediately prior to the transaction own less
than a majority of the outstanding stock of the surviving entity, (ii) the Company effects any sale of all or substantially all
of its assets or a majority of its Common Stock is acquired by a third party, in each case, in one or a series of related transactions,
(iii) any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which all or substantially
all of the holders of Common Stock are permitted to tender or exchange their shares for other securities, cash or property and
would result in the shareholders of the Company immediately prior to such tender offer or exchange offer owning less than a majority
of the outstanding stock after such tender offer or exchange offer, or (iv) the Company effects any reclassification of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other
securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section
9(a) above) (in any such case, a “Fundamental Transaction”), then the Holder shall have the right thereafter
to receive, upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been entitled
to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of the number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitations
on exercise contained herein (the “Alternate Consideration”). The Company shall not effect any such Fundamental
Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or
the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the obligation
to deliver to the Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled
to purchase and/or receive (as the case may be), and the other obligations under this Warrant. The provisions of this paragraph
(b) shall similarly apply to subsequent transactions analogous to a Fundamental Transaction.


 






    	 	4	 



     


    

 


(c)          Number
of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to paragraph (a) of this Section, the
number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so
that after such adjustment the aggregate Exercise Price payable hereunder for the increased or decreased number of Warrant Shares
shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment.


 


(d)          Calculations.
All calculations under this Section 9 shall be made to the nearest cent or the nearest 1/100th of a share, as applicable.
The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account
of the Company, and the sale or issuance of any such shares shall be considered an issue or sale of Common Stock.


 


10.         Payment
of Exercise Price. The Holder shall pay the Exercise Price in immediately available funds; provided, however, that if,
on any Exercise Date a registration statement registering the issuance or resale of the Warrant Shares under the Securities Act
of 1933, as amended (the “Securities Act”) is not effective, the Holder may, in its sole discretion, satisfy
its obligation to pay the Exercise Price through a “cashless exercise”, in which event the Company shall issue to the
Holder the number of Warrant Shares determined as follows:


 


X = Y [(A-B)/A]


 


where:


 


X = the number of Warrant Shares to be issued to
the Holder.


 


Y = the total number of Warrant Shares with respect
to which this Warrant is being exercised.


 


A = the average of the Closing Sale Prices of the shares
of Common Stock (as reported by Bloomberg Financial Markets) for the five Trading Days ending on the date immediately preceding
the Exercise Date.


 


B = the Exercise Price then in effect for the applicable
Warrant Shares at the time of such exercise.


 






    	 	5	 



     


    

 


For purposes of this Warrant, “Closing
Sale Price” means, for any security as of any date, the last trade price for such security on the principal securities
exchange or trading market for such security, as reported by Bloomberg Financial Markets, or, if such exchange or trading market
begins to operate on an extended hours basis and does not designate the last trade price, then the last trade price of such security
prior to 4:00 p.m., New York Time, as reported by Bloomberg Financial Markets, or if the foregoing do not apply, the last trade
price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg
Financial Markets, or, if no last trade price is reported for such security by Bloomberg Financial Markets, the average of the
bid prices, or the ask prices, respectively, of any market makers for such security as reported in the "pink sheets"
by Pink Sheets LLC. If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing
bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company
and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then the Company
shall, within two business days submit via facsimile (a) the disputed determination of the Warrant Exercise Price to an independent,
reputable investment bank selected by the Company and approved by the Holder or (b) the disputed arithmetic calculation of the
Warrant Shares to the Company's independent, outside accountant. The Company shall cause at its expense the investment bank or
the accountant, as the case may be, to perform the determinations or calculations and notify the Company and the Holder of the
results no later than ten business days from the time it receives the disputed determinations or calculations. Such investment
bank's or accountant's determination or calculation, as the case may be, shall be binding upon all parties absent demonstrable
error. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other
similar transaction during the applicable calculation period.


 


For purposes of Rule 144 promulgated under
the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a cashless exercise transaction
shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced,
on the date this Warrant was originally issued pursuant to the Purchase Agreement (provided that the Commission continues to take
the position that such treatment is proper at the time of such exercise).


 


11.         Limitations
on Exercise. Notwithstanding anything to the contrary contained herein, the number of Warrant Shares that may be acquired by
the Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall be limited to the extent necessary to ensure
that, following such exercise (or other issuance), the total number of shares of Common Stock then beneficially owned by such Holder
and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s
for purposes of Section 13(d) of the Exchange Act, does not exceed 9.99% of the total number of issued and outstanding shares of
Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise). For such purposes, beneficial
ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
Each delivery of an Exercise Notice hereunder will constitute a representation by the Holder that it has evaluated the limitation
set forth in this Section and determined that issuance of the full number of Warrant Shares requested in such Exercise Notice is
permitted under this Section. The Company’s obligation to issue shares of Common Stock in excess of the limitation referred
to in this Section shall be suspended (and, except as provided below, shall not terminate or expire notwithstanding any contrary
provisions hereof) until such time, if any, as such shares of Common Stock may be issued in compliance with such limitation; provided,
that, if, as of 4:30 p.m., prevailing New York time, on the Expiration Date, the Company has not received written notice that the
shares of Common Stock may be issued in compliance with such limitation, the Company’s obligation to issue such shares shall
terminate. This provision shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially own
in order to determine the amount of securities or other consideration that such Holder may receive in the event of a Fundamental
Transaction as contemplated in Section 9 of this Warrant.


 


12.         No
Fractional Shares. No fractional Warrant Shares will be issued in connection with any exercise of this Warrant. In lieu of
any fractional shares which would otherwise be issuable, subject to Section 11, the number of Warrant Shares to be issued shall
be rounded up to the next whole number.


 






    	 	6	 



     


    

 


13.         Notices.
Any and all notices or other communications or deliveries hereunder (including, without limitation, any Exercise Notice) shall
be in writing and shall be mailed (registered or certified mail, return receipt requested), or personally delivered and shall be
deemed given when so delivered or if mailed, two (2) days after such mailing, in each case to the address specified in the Purchase
Agreement.


 


14.         Warrant
Agent. The Company shall serve as warrant agent under this Warrant. Upon thirty (30) days’ notice to the Holder, the
Company may appoint a new warrant agent. Any corporation into which the Company or any new warrant agent may be merged or any corporation
resulting from any consolidation to which the Company or any new warrant agent shall be a party or any corporation to which the
Company or any new warrant agent transfers substantially all of its corporate trust or shareholders services business shall be
a successor warrant agent under this Warrant without any further act. Any such successor warrant agent shall promptly cause notice
of its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder’s last
address as shown on the Warrant Register.


 


15.         Miscellaneous.


 


(a)          The
Holder, solely in such Person's capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be
deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to
confer upon the Holder, solely in such Person's capacity as the Holder of this Warrant, any of the rights of a stockholder of the
Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification
of stock, consolidation, merger, amalgamation, conveyance or otherwise), receive notice of meetings, receive dividends or subscription
rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive upon
the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities
on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether
such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 15(a), the Company shall
provide the Holder with copies of the same notices and other information given to the shareholders of the Company, contemporaneously
with the giving thereof to the shareholders.


 


(b)          Subject
to the restrictions on transfer set forth on the first page hereof, and compliance with applicable securities laws, this Warrant
may be assigned by the Holder. This Warrant may not be assigned by the Company except to a successor in the event of a Fundamental
Transaction. This Warrant shall be binding on and inure to the benefit of the parties hereto and their respective successors and
assigns. Subject to the preceding sentence, nothing in this Warrant shall be construed to give to any Person other than the Company
and the Holder any legal or equitable right, remedy or cause of action under this Warrant. This Warrant may be amended only in
writing signed by the Company and the Holder, or their successors and assigns. 


 






    	 	7	 



     


    

 


(c)          GOVERNING
LAW; VENUE; WAIVER OF JURY TRIAL. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES
OF CONFLICTS OF LAW THEREOF. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
SITTING IN THE STATE OF NEW YORK, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION
CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY
IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO
THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL
SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED
OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER
THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING
CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. THE COMPANY HEREBY
WAIVES ALL RIGHTS TO A TRIAL BY JURY. 


 


(d)          The
headings herein are for convenience only, do not constitute a part of this Warrant and shall not be deemed to limit or affect any
of the provisions hereof.


 


(e)          In
case any one or more of the provisions of this Warrant shall be invalid or unenforceable in any respect, the validity and enforceability
of the remaining terms and provisions of this Warrant shall not in any way be affected or impaired thereby, and the parties will
attempt in good faith to agree upon a valid and enforceable provision which shall be a commercially reasonable substitute therefor,
and upon so agreeing, shall incorporate such substitute provision in this Warrant.


 


(f)          Except
as otherwise set forth herein, prior to exercise of this Warrant, the Holder hereof shall not, by reason of by being a Holder,
be entitled to any rights of a stockholder with respect to the Warrant Shares.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,


SIGNATURE PAGE FOLLOWS]


 




    	 	8	 



     


    

 


IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed by its authorized officer as of the date first indicated above.


 


	 	NET ELEMENT, INC
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 


 




    	 	9	 



     


    

 


SCHEDULE 1


 


FORM OF EXERCISE NOTICE


 


(To be executed by the Holder to exercise
the right to purchase shares


of Common Stock under the foregoing Warrant)


 


To:         Net
Element, Inc.


 


(1)         The
undersigned is the Holder of Warrant No. __________ (the “Warrant”) issued by Net Element, Inc. a Delaware corporation
(the “Company”). Capitalized terms used herein and not otherwise defined herein have the respective meanings set forth
in the Warrant.


 


(2)         The
undersigned hereby exercises its right to purchase __________ Warrant Shares pursuant to the Warrant.


  


(3)         The
Holder intends that payment of the Exercise Price shall be made as (check one):


 


 ̈       Cash
Exercise 


 


 ̈       “Cashless
Exercise” under Section 10


 


(4)         If
the Holder has elected a Cash Exercise, the Holder shall pay the sum of $_______ in immediately available funds to the Company
in accordance with the terms of the Warrant.


 


(5)         Pursuant
to this Exercise Notice, the Company shall deliver to the Holder _____________ Warrant Shares in accordance with the terms of the
Warrant.


 


(6)         By
its delivery of this Exercise Notice, the undersigned represents and warrants to the Company that in giving effect to the exercise
evidenced hereby, the Holder will not beneficially own in excess of the number of shares of Common Stock (as determined in accordance
with Section 13(d) of the Securities Exchange Act of 1934) permitted to be owned under Section 11 of the Warrant to which this
notice relates.


 


Dated:_______________, _____


 


	Name of Holder: 	 	 


 


	By:	 	 
	Name:	 	 
	Title: 	 	 
	(Signature
    must conform in all respects to name of  Holder as specified on the face of the Warrant)	 


 




     


     


    

 


SCHEDULE 2


 


NET ELEMENT, INC.


 


FORM OF ASSIGNMENT


 


[To be completed and signed only upon transfer
of Warrant]


 


FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto                             
(the “Transferee” the right represented by the within Warrant to purchase                 
shares of Common Stock of Net Element, Inc. (the “Company”) to which the within Warrant relates and appoints                             
attorney to transfer said right on the books of the Company with full power of substitution in the premises. In connection therewith,
the undersigned represents, warrants, covenants and agrees to and with the Company that:


 


		(a)	the offer and sale of the Warrant contemplated hereby is being made in compliance with Section
4(1) of the United States Securities Act of 1933, as amended (the “Securities Act”) or another valid exemption from
the registration requirements of Section 5 of the Securities Act and in compliance with all applicable securities laws of the states
of the United States;



 


		(b)	the undersigned has not offered to sell the Warrant by any form of general solicitation or general
advertising, including, but not limited to, any advertisement, article, notice or other communication published in any newspaper,
magazine or similar media or broadcast over television or radio, and any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising;



 


		(c)	the undersigned has read the Transferee’s investment letter included herewith, and to its
actual knowledge, the statements made therein are true and correct; and



 


		(d)	the undersigned understands that the Company may condition the transfer of the Warrant contemplated
hereby upon the delivery to the Company by the undersigned or the Transferee, as the case may be, of a written opinion of counsel
(which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect
that such transfer may be made without registration under the Securities Act and under applicable securities laws of the states
of the United States.



 


	Dated:             ,     	 	 
	 	 	 
	 	 	(Signature must conform in all respects to name of holder as specified on the face of the Warrant)
	 	 	 
	 	 	 
	 	 	Address of Transferee
	 	 	 
	 	 	 
	 	 	 
	 	 	 


 


	In the presence of:	 
	 	 
	 	 


 






     


     


    




 


EXHIBIT B


FORM OF REGISTRATION RIGHTS AGREEMENT


[attached hereto]


 




     


     


    

 


EXHIBIT C


 


FORM OF COMPANY RESOLUTIONS


FOR SIGNING PURCHASE AGREEMENT


AND APPROVING REGISTRATION STATEMENT


 


WHEREAS, management
has reviewed with the Board of Directors the background, terms and conditions of the transactions subject to the Securities Purchase
Agreement (the “Purchase Agreement”) by and between the Company and Esousa Holdings LLC (“Esousa”),
including all materials terms and conditions of the transactions subject thereto, providing for the purchase by Esousa of Seven
Million Five Hundred Fifty Thousand Eight Hundred Eighty-Five Dollars ($7,550,585) of the Company’s units (the “Units”),
with each unit consisting of a share of common stock, par value $0.0001 per share (the “Common Stock” and shares
of such Common stock to be purchased by Esousa, the “Purchase Shares”), and a warrant to purchase three-fifths
(3/5) of a share of Common Stock (the “Warrants”); and


 


WHEREAS, after careful
consideration of the Purchase Agreement, the documents incident thereto and other factors deemed relevant by the Board of Directors,
the Board of Directors has determined that it is advisable and in the best interests of the Company to engage in the transactions
contemplated by the Purchase Agreement.


 


WHEREAS, in connection with the transactions
contemplated pursuant to the Purchase Agreement, the Company has agreed to file a registration statement with the Securities and
Exchange Commission (the “Commission”) registering the Purchase Shares and to list the Purchase Shares on the
Nasdaq Capital Market;WHEREAS, the management of the Company is preparing an initial draft of a Registration Statement on Form
S-3 or Form S-1 (the “Registration Statement”) in order to register the sale of the Purchase Shares and shares
of Common Stock issuable upon the exchange of the Warrants (the “Warrant Shares” collectively with the Purchase
Shares and the Warrants, the “Securities”) by Esousa; and


 


WHEREAS, the Board
of Directors has determined to approve the Registration Statement and to authorize the appropriate officers of the Company to take
all such actions as they may deem appropriate to effect the offering.


 


Transaction Documents


 


NOW, THEREFORE, BE
IT RESOLVED, that the transactions described in the Purchase Agreement are hereby approved and the Chief Executive Officer, Chief
Legal Officer and Chief Financial Officer (the “Authorized Officers”) are severally authorized to execute and
deliver the Purchase Agreement, and any other agreements or documents contemplated thereby including, without limitation, a registration
rights agreement (the “Registration Rights Agreement”) providing for the registration of the shares of the Company’s
Common Stock issuable in respect of the Purchase Agreement on behalf of Esousa, with such amendments, changes, additions and deletions
as the Authorized Officers may deem to be appropriate and approve on behalf of, the Company, such approval to be conclusively evidenced
by the signature of an Authorized Officer thereon; and


 


FURTHER RESOLVED,
that the terms and provisions of the Registration Rights Agreement by and among the Company and Esousa are hereby approved and
the Authorized Officers are authorized to execute and deliver the Registration Rights Agreement (pursuant to the terms of the
Purchase Agreement), with such amendments, changes, additions and deletions as the Authorized Officer may deem appropriate and
approve on behalf of, the Company, such approval to be conclusively evidenced by the signature of an Authorized Officer thereon;
and


 




     


     


    

 


FURTHER
RESOLVED, that the Authorized Officers are authorized to execute and deliver the transfer agent instructions pursuant to the terms
of the Purchase Agreement, with such amendments, changes, additions and deletions as the Authorized Officers may deem appropriate
and approve on behalf of, the Company, such approval to be conclusively evidenced by the signature of an Authorized Officer thereon;
and


 


Execution of Purchase Agreement


 


FURTHER
RESOLVED, that the Company be and it hereby is authorized to execute the Purchase Agreement providing for the purchase of the Units
having an aggregate value of up to $7,500,000 plus $0.125 per each Warrant; and


 


Issuance of Common Stock and Warrants


 


FURTHER RESOLVED, that
the Company is hereby authorized to issue shares of Common Stock upon the purchase of Purchase Shares and exchange of Warrants
up to the available amount under the Purchase Agreement in accordance with the terms of the Purchase Agreement and that, upon issuance
of the Purchase Shares or Warrant Shares pursuant to the Purchase Agreement, such Purchase Shares or Warrant Shares, as applicable,
will be duly authorized, validly issued, fully paid and non-assessable; and


 


FURTHER RESOLVED, that the Corporation shall initially reserve
1,500,000 shares of Common Stock for issuance as Warrant Shares under the Purchase Agreement; and


 


Listing of Shares on the Nasdaq
Capital Market


 


FURTHER RESOLVED, that
the officers of the Company be, and each of them hereby is, authorized and directed to take all necessary steps and do all other
things necessary and appropriate to effect the listing of the Purchase Shares and the Warrant Shares on the Nasdaq Capital Market;
and


 


Approval of Registration Statement


 


RESOLVED, that the
officers and directors of the Company be, and each of them hereby is, authorized and directed to prepare, execute and file with
the Commission the Registration Statement, which Registration Statement shall be filed substantially in the form presented to the
Board of Directors, with such changes therein as the Chief Executive Officer, Chief Legal Officer or Chief Financial Officer of
the Company shall deem desirable and in the best interest of the Company and its stockholders (such officer’s execution thereof
including such changes shall be deemed to evidence conclusively such determination); and


 


FURTHER RESOLVED, that
the officers of the Company be, and each of them hereby is, authorized and directed to prepare, execute and file with the Commission
all amendments, including post-effective amendments, and supplements to the Registration Statement, and all certificates, exhibits,
schedules, documents and other instruments relating to the Registration Statement, as such officers shall deem necessary or appropriate
(such officer’s execution and filing thereof shall be deemed to evidence conclusively such determination); and


 


FURTHER RESOLVED, that
the execution of the Registration Statement and of any amendments and supplements thereto by the officers of the Company be, and
the same hereby is, specifically authorized either personally or by the Authorized Officers as such officer’s true and lawful
attorneys-in-fact and agents; and


 




     


     


    

 


FURTHER RESOLVED, that
the officers of the Company be, and each of them hereby is, authorized and directed to cause the Company to pay all fees, costs
and expenses that may be incurred by the Company in connection with the Registration Statement; and


 


FURTHER RESOLVED, that
it is desirable and in the best interest of the Company that the Securities be qualified or registered for sale in various states;
that the officers of the Company be, and each of them hereby is, authorized to determine the states in which appropriate action
shall be taken to qualify or register for sale all or such part of the Securities as they may deem advisable; that said officers
be, and each of them hereby is, authorized to perform on behalf of the Company any and all such acts as they may deem necessary
or advisable in order to comply with the applicable laws of any such states, and in connection therewith to execute and file all
requisite papers and documents, including, but not limited to, applications, reports, surety bonds, irrevocable consents, appointments
of attorneys for service of process and resolutions; and the execution by such officers of any such paper or document or the doing
by them of any act in connection with the foregoing matters shall conclusively establish their authority therefor from the Company
and the approval and ratification by the Company of the papers and documents so executed and the actions so taken; and


 


FURTHER RESOLVED, that
if, in any state where the securities to be registered or qualified for sale to the public, or where the Company is to be registered
in connection with the public offering of the Securities, a prescribed form of resolution or resolutions is required to be adopted
by the Board of Directors, each such resolution shall be deemed to have been and hereby is adopted, and the Secretary is hereby
authorized to certify the adoption of all such resolutions as though such resolutions were now presented to and adopted by the
Board of Directors; and


 


Approval of Actions


 


FURTHER RESOLVED, that, without limiting
the foregoing, the Authorized Officers are, and each of them hereby is, authorized and directed to proceed on behalf of the Company
and to take all such steps as deemed necessary or appropriate to cause the Company to consummate the agreements referred to herein
and to perform its obligations under such agreements;


 


FURTHER RESOLVED, that
the Authorized Officers be, and each of them hereby is, authorized, empowered and directed on behalf of and in the name of the
Company, to take or cause to be taken all such further actions and to execute and deliver or cause to be executed and delivered
all such further agreements, amendments, documents, certificates, reports, schedules, applications, notices, letters and undertakings
and to incur and pay all such fees and expenses as in their judgment shall be necessary, proper or desirable to carry into effect
the purpose and intent of any and all of the foregoing resolutions, and that all actions heretofore taken by any officer or director
of the Company in connection with the transactions contemplated by the agreements described herein are hereby approved, ratified
and confirmed in all respects; and


 


FURTHER RESOLVED, that
any and all actions heretofore or hereinafter taken on behalf of the Company by any of said persons or entities within the terms
of the foregoing resolutions are hereby approved, ratified and confirmed in all respects as the acts and deeds of the Company.