(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
If the only securities being registered
on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
¨
If any of the securities being registered
on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box.
x
If this form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and "emerging growth company" in Rule 12b-2 of the Exchange Act.
ABOUT THIS PROSPECTUS
You should rely only on the information
contained or incorporated by reference in this prospectus and any prospectus supplement or issuer free writing prospectus relating
to the offering of our common stock by the selling stockholder. No one has been authorized to provide you with information that
is different from that contained or incorporated by reference in this prospectus, any accompanying prospectus supplement and any
related issuer free writing prospectus in connection with the offering described herein and therein, and, if given or made, such
information or representations must not be relied upon as having been authorized by us. Neither this prospectus nor any prospectus
supplement nor any related issuer free writing prospectus shall constitute an offer to sell or a solicitation of an offer to buy
offered securities in any jurisdiction in which it is unlawful for such person to make such an offering or solicitation.
You should read the entire prospectus and
any prospectus supplement and any related issuer free writing prospectus, as well as the documents incorporated by reference into
this prospectus or any prospectus supplement or any related issuer free writing prospectus, before making an investment decision.
Neither the delivery of this prospectus or any prospectus supplement or any issuer free writing prospectus nor any sale made hereunder
shall under any circumstances imply that the information contained or incorporated by reference herein or in any prospectus supplement
or issuer free writing prospectus is correct as of any date subsequent to the date hereof or of such prospectus supplement or issuer
free writing prospectus, as applicable. You should assume that the information appearing in this prospectus, any prospectus supplement
or any document incorporated by reference is accurate only as of the date of the applicable documents, regardless of the time of
delivery of this prospectus or any sale of securities. Our business, financial condition, results of operations and prospects may
have changed since that date.
PROSPECTUS SUMMARY
This summary highlights certain information about us, this
offering and selected information contained in the prospectus. This summary is not complete and does not contain all of the information
that you should consider before deciding whether to invest in our common stock. For a more complete understanding of our company
and this offering, we encourage you to read and consider the more detailed information in the prospectus, including “Risk
Factors” and the financial statements and related notes. Unless we specify otherwise, all references in this prospectus to
“Net Element,” “we,” “our,” “us” and “our company” refer to NET ELEMENT,
INC.
Unless otherwise indicated all historical
and pro forma common stock and per share data in this prospectus have been retroactively restated to the earliest period presented
to account for the 1-for-10 reverse stock split that became effective on October 5, 2017.
Information About the Company
Background and Business
Company Overview
Net Element is a global financial technology
and value-added solutions group that supports companies in accepting electronic payments in an omni-channel environment that spans
across point-of-sale (“POS”), e-commerce and mobile devices. The Company operates in three segments as a provider of
North America Transaction Solutions, Mobile Payment Solutions and Online Payment Solutions.
We enable merchants of all sizes to accept
and process over 100 different payment options in more than 40 currencies, including credit, debit and prepaid payments. We also
provide merchants with value-added services and technologies including integrated payment technologies, POS solutions, security
solutions, fraud management, information solutions and analytical tools.
We provide a range of solutions to our clients
across the value chain of commerce-enabling services and technologies. We create our value-added solutions from a suite of proprietary
technology products which includes cloud-based applications, processing services, security offerings, and customer support programs
that we configure to meet our clients’ individual needs.
We provide additional services including:
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POS solutions and other adjacent business services throughout the
United States provided by TOT Payments doing business as
Unified Payments
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Proprietary cloud-based POS platform for the hospitality industry
and small to medium sized businesses (“SMB”) merchants through
Aptito
and
Restoactive
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Proprietary integrated, global e-commerce and mobile payments processing
platform and fraud management system through
PayOnline
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Integrated payment processing solutions to the travel industry, which
includes integrations with various Global Distribution Systems (“GDS”) such as Amadeus®, Galileo®, Sabre®,
additional geo filters and passenger name record (PNR) through Pay-Travel service offered by
PayOnline
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PayNet Solutions – universal payment platform provided by
PayOnline
(software-as-a-service (“SaaS”) and White Label models). Providing an opportunity for top clients of
PayOnline
to develop their own independent business solutions.
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Integrated direct-carrier, mobile operator billing solution for small
ticket content providers and merchants throughout selected international markets provided by
Digital Provider
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We have operations and offices located within
the United States (“U.S.”) (domestic) and outside of the U.S. (international) where sales, customer service and/or
administrative personnel are based. Through U.S. based subsidiaries, we generate revenues from transactional services, valued-added
payment services and technologies for SMBs. Through wholly owned subsidiaries, we operate internationally with a focus on transactional
services, mobile payment transactions, online payment transactions, value-added payment services and technologies in selected international
markets.
Our business is characterized by transaction
related fees, multi-year contracts, and a diverse client base which allows us to grow alongside our clients. Our multi-year contracts
allow us to achieve a high level of recurring revenues. While the contracts typically do not specify fixed revenues to be realized
thereunder, they do provide a framework for revenues to be generated based on volume of services provided during the contract’s
term.
In August 2017, we substantially reorganized
the business of Digital Provider and consolidated its operations into PayOnline and TOT Group Russia. We currently are not generating
revenues from new content, and we continue to explore partnership opportunities that can monetize our relationships and contracts
with mobile operators.
Our Corporate Organization
Our Company was formed in 2010 and incorporated
as a Cayman Islands exempted company with limited liability under the name Cazador Acquisition Corporation Ltd. (“Cazador”).
Cazador was a blank check company incorporated for the purpose of effecting a merger; share capital exchange; asset acquisition;
share purchase; reorganization or similar business combination with one or more operating businesses or assets. In 2012, Cazador
completed a merger (the “Merger”) with Net Element, Inc., a Delaware corporation (“Pre-Merger Net Element”),
which was a company with businesses in the online media and mobile commerce payment processing markets. Immediately prior to the
effectiveness of the Merger, the Company (then known as Cazador) changed its jurisdiction of incorporation by discontinuing as
an exempted company in the Cayman Islands and continuing and domesticating as a corporation incorporated under the laws of the
State of Delaware. Effective upon consummation of the Merger, (i) Pre-Merger Net Element was merged with and into the Company,
resulting in Pre-Merger Net Element ceasing to exist and the Company continuing as the surviving company in the Merger, and (ii)
the Company changed its name to Net Element International, Inc. In 2013, the Company divested its non-core entertainment assets.
In December 2013, the Company changed its name to Net Element, Inc. We entered the mobile payments business through the launch
of Tot Money (renamed Digital Provider in 2015) in Russia in 2012. We entered the financial technology and value-added transactional
service business through the acquisitions of Unified Payments in April 2013 and Aptito in June 2013. We entered the online payment
business with our acquisition of PayOnline in May 2015.
Additional Information
Our principal office is located at 3363
NE 163
rd
Street, Suite 705, North Miami Beach, Florida 33160, and our main telephone number is (305) 507-8808.
Our website address is www.netelement.com. The information on our website is not a part of, and should not be construed as being
incorporated by reference into, this prospectus.
The Offering
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Common stock being offered by the selling stockholder
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Up to 1,079,136 Shares, including 350,553 Purchase Shares, 404,676 Purchase Warrant Shares, and 323,907 Pre-Funded Warrant Shares.
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Common stock outstanding
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3,859,601 (as of January 8, 2018)
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Use of proceeds
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The selling stockholder will receive all of the proceeds from the sale of the shares offered for sale by it under this prospectus. We will not receive proceeds from the sale of the shares by the selling stockholder. We will, however, receive the exercise price of the Purchase Warrants (with the exercise price of $11.12 per share) and the Pre-Funded Warrants (with the exercise price of $0.01 per share) held by the selling stockholder if and when exercised by the selling stockholder exercised in cash, which, if exercised in cash at the current applicable exercise price with respect to all of the Warrants, would result in gross proceeds to the Company of $4,503,236.19.
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Nasdaq Capital Market Symbol
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NETE
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Risk Factors
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Investing in our securities involves a high degree of risk. You should carefully review and consider the “Risk Factors” section of this prospectus for a discussion of factors to consider before deciding to invest in shares of our common stock.
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Recent Events
Private Placement of Common Stock and Warrants
On December 29, 2017, we entered into, and
consummated the transactions contemplated by, a Unit Purchase Agreement (the “Purchase Agreement”) with Esousa Holdings
LLC (“Esousa”). Pursuant to the Purchase Agreement, on December 29, 2017 (the “Closing Date”), the Company
sold to Esousa (the “Private Placement”) (i) an aggregate of 350,553 shares of Company common stock, par value $0.0001,
at a purchase price of $11.12 per share (i.e., a price equal to the Company’s consolidated closing bid price per share as
reported by the Nasdaq Capital Market); (ii) an aggregate of 404,676 five-year warrants to purchase shares of Company common stock
(the “Purchase Warrants”) at a purchase price of $0.125 per share and exercise price of $11.12 per share; and (iii)
an aggregate of 323,907 five-year pre-paid warrants to purchase shares of Company common stock (the “Pre-Funded Warrants”)
with exercise price of $0.01 per share (collectively, the “Securities”). The aggregate purchase price for the Securities
was $7,550,585.
The Company will not issue any shares of
our common stock under the Purchase Agreement, nor shall the Purchase Warrant and/or the Pre-Funded Warrant be exercisable, if
such shares proposed to be issued and sold (including the shares issuable upon exercise of the Purchase Warrants and/or the Pre-Funded
Warrants), when aggregated with all other shares of the Company common stock then owned beneficially (as calculated pursuant to
Section 13(d) of the Exchange Act of 1934, as amended, and Rule 13d-3 promulgated thereunder) by Esousa and its affiliates would
result in the beneficial ownership by Esousa and its affiliates of more than 9.99% of the then issued and outstanding shares of
the Company common stock. Subject to certain exclusions, the Purchase Agreement contains certain restrictions on future equity
fundings, including issuances without Esousa’s consent of any securities convertible into the Company’s common until
30 days after the resale registration statement for the Securities purchased by Esousa has been declared effective by the Securities
and Exchange Commission (the “SEC”) and any floating conversion rate or variable priced securities convertible into
the Company’s common stock until six months after such registration statement has been declared effective by the SEC.
Esousa represented to the Company in the
Purchase Agreement that neither it nor any of its agents, representatives and affiliates engaged prior to the Closing Date in any
direct or indirect short-selling or hedging of the Company’s common stock.
As contemplated by the Purchase Agreement,
on the Closing Date, the Company entered into a registration rights agreement with Esousa (the “Registration Rights Agreement”).
The Registration Rights Agreement (i) required the Company to file within 21 days of the Closing Date (the “Filing Deadline”)
a registration statement for the Securities purchased by Esousa in the Private Placement and (ii) granted certain piggyback rights
thereunder. The Registration Rights Agreement requires the Company to and to use its commercially reasonable efforts to cause
the Registration Statement to become effective as promptly thereafter as practicable but in any event not later than 90 days after
the Closing Date (the “Effectiveness Deadline”). If the Company fails to meet the Filing Deadline or the Effectiveness
Deadline, subject to certain terms provided for in the Registration Rights Agreement, the Company will be required to pay liquidated
damages to Esousa. The Registration Rights Agreement provides for customary indemnification and contribution provisions. In the
event Esousa no longer holds “Registrable Securities,” as defined in the Registration Rights Agreements or when the
Registrable Securities may be resold by Esousa pursuant to Rule 144 promulgated under the 1933 Act, the Company may not be obligated
to cause the declaration of effectiveness of the Registration Statement by the SEC.
Pursuant to the Purchase Agreement and the
Registration Rights Agreement, we are registering 1,079,136 shares of our common stock under the Securities Act, which includes
the shares of common stock issuable upon exercise of the Purchase Warrants and the Pre-Funded Warrants. All 1,079,136 shares of
common stock are being offered pursuant to this prospectus.
RISK FACTORS
You should carefully consider
the following information about risks, as well as those risk factors set forth in our most recent Annual Report on Form 10-K on
file with the Commission, which are incorporated by reference in this prospectus, together with the other information contained
in this prospectus, before making an investment in our common stock. If any of the circumstances or events described below actually
arises or occurs, our business, results of operations, cash flows and financial condition could be harmed. In any such case, the
market price of our common stock could decline, and you may lose all or part of your investment.
Additional Risks Relating
to the Private Placement
We may be
obligated to pay liquidated damages if we fail to obtain and maintain effectiveness of a registration statement under the Registration
Rights Agreement.
We have granted
the selling stockholder resale registration rights pursuant to the terms of the Registration Rights Agreement. If a registration
statement is not filed before the Filing Deadline or declared effective by the SEC before the Effectiveness Deadline, or if the
registration statement thereafter becomes ineffective or the selling shareholder is unable to register the Shares thereunder for
a certain period of time, the Company will be obligated to pay to the selling shareholder, as liquidated damages, an amount in
cash or shares of our common stock equal to one percent (1%) of the selling shareholder’s total paid purchase price for the
Securities pursuant to the Purchase Agreement.
The sale
of a substantial amount of our common stock, including resale of the shares of common stock issuable upon the exercise of Warrants
acquired in the Private Placement, in the public market after this offering could adversely affect the prevailing market price
of our common stock and cause stockholders to experience dilution.
We have outstanding
an aggregate of 3,859,601 shares of our common stock as of January 8, 2018. The Warrants are exercisable for an aggregate of 728,583
shares of common stock, subject to adjustment as provided in the Warrants, in addition to 350,553 shares of common stock being
offered pursuant to this prospectus. The Warrants are exercisable at any time. Pursuant to the registration rights granted in the
Private Placement, we agreed to register the resale by the selling stockholder named herein of the 350,553 shares of common stock
being offered pursuant to this prospectus and the 728,583 shares of our common stock issuable upon exercise of the Warrants. Upon
such registration, these registered shares will become generally available for immediate resale. Sales of substantial amounts of
shares of our common stock in the public market, or the perception that such sales might occur, could adversely affect the market
price of our common stock, and the market value of our other securities, and could result in dilution to shareholders who hold
our common stock. In addition, we may issue additional shares of common stock or other equity or debt securities convertible into
our common stock in connection with a future financing, acquisition, employee arrangements or otherwise. Any such issuance could
result in substantial dilution to our stockholders and could cause our stock price to decline. A substantial number of shares of
common stock are being offered by this prospectus, and we cannot predict if and when the selling stockholder may sell such shares
in the public markets. We have also registered the offer and sale of all shares of common stock that we may issue under our equity
compensation plan. Any such issuance could result in substantial dilution to our existing stockholders and could cause our stock
price to decline.
We may
not be able to develop new products or enhance the capabilities related to blockchain technology that is being developed by the
Company’s new blockchain business unit to keep pace with our industry’s rapidly changing technology and customer requirements.
The industry
for blockchain technology is characterized by rapid technological changes, new product introductions, enhancements, and
evolving industry standards. Our business prospects depend on our ability to develop new products and applications for our technology
in new markets that develop as a result of technological and scientific advances, while improving performance and cost-effectiveness.
New technologies, techniques or products could emerge that might offer better combinations of price and performance than the blockchain
technology that is being developed by the Company’s new blockchain business unit. It is important that we anticipate changes
in technology and market demand. If we do not successfully innovate and introduce new technology into our anticipated product lines
or effectively manage the transitions of our technology to new product offerings, our business, financial condition and results
of operations could be harmed.
INFORMATION CONCERNING FORWARD-LOOKING
STATEMENTS
This prospectus, including the
documents incorporated by reference herein, contains statements that do not directly or exclusively relate to historical facts.
Such statements are “forward-looking statements.” You can typically identify forward-looking statements by the use
of forward-looking words, such as “may,” “will,” “could,” “project,” “believe,”
“anticipate,” “expect,” “estimate,” “continue,” “potential,” “plan,”
“forecast” and other similar words. These include, but are not limited to, statements relating to our future financial
and operating results, plans, objectives, expectations and intentions and other statements that are not historical facts. These
statements represent our intentions, plans, expectations, assumptions and beliefs about future events and are subject to risks,
uncertainties and other factors. Many of these factors are outside of our control and could cause actual results to differ materially
from the results expressed or implied by these forward-looking statements. In addition to the risk factors described under “Risk
Factors” beginning on page 4 of this prospectus, these factors include:
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the impact of any new or changed laws, regulations, card network rules
or other industry standards affecting our business, including the U.S. government decision to impose sanctions or other legal restrictions
that may restrict our ability to do business in Russia;
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the impact of any significant chargeback liability and liability for
merchant or customer fraud, which we may not be able to accurately anticipate and/or collect;
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our ability to secure or successfully migrate merchant portfolios
to new bank sponsors if current sponsorships are terminated;
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whether blockchain
technology that is being developed by the Company’s new blockchain business unit will be adopted by the Company's
merchants and consumers, whether the new business unit will be successful in it endeavors to identify and invest into
relevant projects and whether investment into blockchain ecosystem will positively impact the Company;
our and our bank sponsors’ ability to adhere to the standards of the Visa® and MasterCard® payment card associations;
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our reliance on third-party processors and service providers;
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our dependence on independent sales groups (“ISGs”) that
do not serve us exclusively to introduce us to new merchant accounts;
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our ability to pass along increases in interchange costs and other
costs to our merchants;
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our ability to protect against unauthorized disclosure of merchant
and cardholder data, whether through breach of our computer systems or otherwise;
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the effect of the loss of key personnel on our relationships with
ISGs, card associations, bank sponsors and our other service providers;
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the effects of increased competition, which could adversely impact
our financial performance;
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the impact of any increase in attrition due to an increase in closed
merchant accounts and/or a decrease in merchant charge volume that we cannot anticipate or offset with new accounts;
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the effect of adverse business conditions on our merchants;
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our ability to adopt technology to meet changing industry and customer
needs or trends;
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the impact of any decline in the use of credit cards as a payment
mechanism for consumers or adverse developments with respect to the credit card industry in general;
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the impact of any adverse conditions in industries in which we obtain
a substantial amount of our bankcard processing volume;
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the impact of seasonality on our operating results;
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the impact of any failure in our systems due to factors beyond our
control;
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the impact of any material breaches in the security of third-party
processing systems we use;
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the impact of any new and potential governmental regulations designed
to protect or limit access to consumer information;
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the impact on our profitability if we are required to pay federal,
state or local taxes on transaction processing;
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the impact on our growth and profitability if the markets for the
services that we offer fail to expand or if such markets contract;
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our ability (or inability) to continue as a going concern;
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the willingness of the Company’s majority stockholders, and/or
other affiliates of the Company, to continue investing in the Company’s business to fund working capital requirements;
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the Company’s ability (or inability) to obtain additional financing
in sufficient amounts or on acceptable terms when needed;
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the impact on our operating results or liquidity in the event of an
unfavorable outcome on legal proceedings and claims which arise in the ordinary course;
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the impact on our operating results as a result of impairment of our
goodwill and intangible assets;
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our material weaknesses in internal control over financial reporting
and our ability to maintain effective controls over financial reporting in the future; and
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the other factors identified in the “Risk Factors” section
of this prospectus.
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Forward-looking statements are
based on our current expectations about future events. Although we believe that the expectations reflected in the forward-looking
statements are reasonable, these expectations may not be achieved. We are under no duty to update any of the forward-looking statements
after the date of this prospectus to conform those statements to actual results. In evaluating these statements, you should consider
various factors, including the risks outlined in the section entitled “Risk Factors” beginning on page 4 of this prospectus.
PRIVATE
PLACEMENT OF COMMON STOCK AND WARRANTS
Overview
On December 29, 2017, we entered into, and
consummated the transactions contemplated by, a Unit Purchase Agreement (the “Purchase Agreement”) with Esousa Holdings
LLC (“Investor” or “Esousa”). Pursuant to the Purchase Agreement, on December 29, 2017 (the “Closing
Date”), the Company sold to Investor (the “Private Placement”) (i) an aggregate of 350,553 shares of Company
common stock, par value $0.0001, at a purchase price of $11.12 per share (the “Purchase Shares”); (ii) an aggregate
of 404,676 five-year warrants to purchase shares of Company common stock (the “Purchase Warrants”) at a purchase price
of $0.125 per share and exercise price of $11.12 per share; and (iii) an aggregate of 323,907 five-year pre-paid warrants to purchase
shares of Company common stock (the “Pre-Funded Warrants”) with exercise price of $0.01 per share (collectively, the
“Securities”). The aggregate purchase price for the Securities was $7,550,585.
As contemplated by the Purchase Agreement,
on the Closing Date, the Company entered into a registration rights agreement with Esousa (the “Registration Rights Agreement”).
The Registration Rights Agreement (i) required the Company to file within 21 days of the Closing Date (the “Filing Deadline”)
a registration statement for the Securities purchased by Esousa in the Private Placement and (ii) granted certain piggyback rights
thereunder. The Registration Rights Agreement requires the Company to use its commercially reasonable efforts to cause the Registration
Statement to become effective as promptly thereafter as practicable but in any event not later than 90 days after the Closing Date
(the “Effectiveness Deadline”). If the Company fails to meet the Filing Deadline or the Effectiveness Deadline, subject
to certain terms provided for in the Registration Rights Agreement, the Company will be required to pay liquidated damages to Esousa
described below under the caption “Effectiveness of Registration Statement Condition.” The Registration Rights Agreement
provides for customary indemnification and contribution provisions. In the event Esousa no longer holds “Registrable Securities,”
as defined in the Registration Rights Agreements or when the Registrable Securities may be resold by Esousa pursuant to Rule 144
promulgated under the 1933 Act, the Company may not be obligated to cause the declaration of effectiveness of the Registration
Statement by the SEC
Pursuant to the Purchase Agreement and the
Registration Rights Agreement, we are registering 1,079,136 shares of our common stock under the Securities Act, which includes
the shares of common stock of the Company issuable upon exercise of the Purchase Warrants (the “Purchase Warrant Shares”)
and the Pre-Funded Warrants (the “Pre-Funded Warrant Shares”). All 1,079,136 shares of common stock are being offered
pursuant to this prospectus.
Purchase of Units
Pursuant to the Purchase Agreement, the
Company sold to Investor certain units (the “Units”), with each Unit consisting of one Purchase Share and three-fifths
(3/5) of a Purchase Warrant, where each whole Purchase Warrant entitles the holder to purchase one share of common stock of the
Company.
Purchase Price
The total purchase price for the Units was
$7,550,585, which consisted of (i) $0.125 per Purchase Warrant, and (ii) $11.12 per Purchase Share. The purchase price for the
Purchase Shares was calculated using the consolidated closing bid price for the Company’s common stock, as reported by the
Nasdaq Capital Market on the Closing Date.
Maximum Percentage
The Purchase Agreement provides that the
Company shall not issue any shares of common stock thereunder if such issuance, when aggregated with all other shares of common
stock of the Company beneficially owned by Investor and its affiliates, would result in a beneficial ownership (as calculated pursuant
to Section 13(d) of the Exchange Act of 1934, as amended (the “Exchange Act”) and Rule 13d-3 promulgated thereunder)
by Investor and its affiliates of more than 9.99% of the then issued and outstanding shares of common stock of the Company (the
“Maximum Percentage”).
To the extent that an issuance would cause
Investor’s beneficial ownership to exceed the Maximum Percentage, the Purchase Agreement provides that the Company shall,
in lieu of issuing such shares, issue warrants to Investor to purchase, at a purchase price of $0.01 per share, the number of shares
of common stock that would have caused Investor’s beneficial ownership to exceed the Maximum Percentage (the “Pre-Funded
Warrants”).
Pursuant to these terms and the purchase
price as described above, the Company sold to Investor an aggregate of (i) 350,553 Purchase Shares; (ii) 404,676 Purchase Warrants;
and (iii) 323,907 Pre-Funded Warrants.
Terms of the Warrants
Purchase Warrants
On December 29, 2017 the Company issued
to Investor an aggregate of 404,676 Purchase Warrants at a purchase price of $0.125 per share and an exercise price of $11.12 per
share. The Purchase Warrants may be exercised at any time through 5:30 P.M., prevailing New York time on December 29, 2022 (the
“Expiration Date”). Any portion of the Purchase Warrants not exercised prior to the Expiration Date will be terminated.
The Investor may exercise the Purchase Warrants
by delivering to the Company (i) an exercise notice, appropriately completed and duly signed, and (ii) payment of the exercise
price in immediately available funds (which may take the form of a “cashless exercise” if so indicated in the exercise
notice). The Investor may not exercise or exchange the Purchase Warrants to the extent (but only to the extent) the Investor or
any of its affiliates would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act) a number of shares
of the Company’s common stock which would exceed 9.99% of the total number of shares issued and outstanding.
Pre-funded Warrants
On December 29, 2017 the Company issued
to Investor an aggregate of 323,907 Pre-funded Warrants at an exercise price of $0.01 per share. The Pre-funded Warrants may be
exercised at any time through the Expiration Date. Any portion of the Pre-funded Warrants not exercised prior to the Expiration
Date will be terminated.
The Investor may exercise the Pre-funded
Warrants by delivering to the Company (i) an exercise notice, appropriately completed and duly signed, and (ii) payment of the
exercise price in immediately available funds (which may take the form of a “cashless exercise” if so indicated in
the exercise notice). The Investor may not exercise or exchange the Pre-funded Warrants to the extent (but only to the extent)
the Investor or any of its affiliates would beneficially own (as determined in accordance with Section 13(d) of the Exchange Act)
a number of shares of the Company’s common stock which would exceed 9.99% of the total number of shares issued and outstanding.
Representations
The Investor represented to the Company
in the Purchase Agreement that it is an institutional “accredited investor” as that term is defined in Rule 501(a)
of Regulation D of the Securities Act. The Investor further represented that neither it nor any of its agents, representatives
and affiliates engaged prior to the Closing Date in any direct or indirect short-selling or hedging of the Company’s common
stock.
Issuance of Additional Securities
Pursuant to the Purchase Agreement, the
Company agreed that for the period commencing on the date thereof and ending on the date immediately following the 30th day after
the satisfaction of the requirement that a registration statement registering the Securities be declared effective (as set forth
on the Buyer Schedule thereto) (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 Securities Act), any
securities that are convertible into common stock of the Company, 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 agreed that, without
prior consent of the Investor, until the earlier of (A) 6 months after the date on which the registration statement is declared
effective or (B) the date on which the Investor has sold or disposed of all Securities, the Company will not issue any floating
conversion rate or variable priced securities convertible into common stock of the Company.
Effectiveness of Registration Statement
Condition
A registration statement registering the
Purchase Shares, the Purchase Warrant Shares, and the Pre-Funded Warrant Shares must be filed and declared effective by the SEC
covering the sale by Investor (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 will 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 the registration statement effective. Such penalties shall be payable in cash or in common stock of the Company and
shall lapse upon the six-month anniversary of the Closing Date so long as the Investor’s common stock are eligible for sale,
without restriction, under Rule 144.
Events of Default
An “Event of Default” shall
be deemed to have occurred under the Purchase Agreement when any of the following events occurs:
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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 Investor for the sale of all of the securities required to be registered by the Registration Rights Agreement,
and such lapse or unavailability continues for a period of 10 consecutive business days or for more than an aggregate of 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 60 consecutive business days, which such period shall be extended for up to an additional
30 business days if the Company receives a comment letter from the SEC in connection therewith;
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the suspension of the common stock of the Company from trading for a period of 3 consecutive trading days;
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the delisting of the common stock of the Company from the Nasdaq Capital Market, and such 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;
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the Company’s breach of any representation or warranty (as of the dates made), covenant or other term or condition under
the Purchase Agreement or the Registration Rights Agreement if such breach could reasonably be expected to have a Material Adverse
Effect (as defined in the Purchase Agreement) and except only if such breach continues uncured for a period of at least 20 business
days;
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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;
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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
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the Company ceases for more than 3 consecutive business days 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.
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Restrictive Legends
The Securities issued under the Purchase Agreement
will bear a restrictive legend until such time as the selling shareholder resells the Securities pursuant to an effective registration
statement or pursuant to Rule 144 under the Securities Act.
USE OF PROCEEDS
The
selling stockholder will receive all of the proceeds from the sale of the shares offered for sale by it under this prospectus.
We will not receive proceeds from the sale of the shares by the selling stockholder. We will, however, receive the exercise price
of the Purchase Warrants (with the exercise price of $11.12 per share) and the Pre-Funded Warrants (with the exercise price of
$0.01 per share) held by the selling stockholder if and when exercised by the selling stockholder exercised in cash, which, if
exercised in cash at the current applicable exercise price with respect to all of the Warrants, would result in gross proceeds
to the Company of $4,503,236.19.
SELLING
Stockholder
The shares of common stock
being offered by the selling stockholder are the Purchase Shares (as defined in the Unit Purchase Agreement) and those issuable
to the selling stockholder upon exercise or exchange of the warrants. For additional information regarding the issuance of the
common stock and the warrants, see “Private Placement of Common Stock and Warrants” above. We are registering the shares
of common stock in order to permit the selling stockholder to offer the shares for resale from time to time. Except for the ownership
of the Purchase Shares and the warrants issued pursuant to the Unit Purchase Agreement, the selling stockholder has not had any
material relationship with us within the past three years.
The table below lists the
selling stockholder and other information regarding the beneficial ownership (as determined under Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder) of the shares of common stock held by each of the selling
stockholder. The second column lists the number of shares of common stock beneficially owned by the selling stockholder, based
on its respective ownership of the shares of common stock and warrants, as of January 8, 2018, assuming exercise or exchange of
the warrants held by such selling stockholder on that date but taking account of any limitations on conversion and exercise or
exchange set forth therein.
The third column lists
the shares of common stock being offered by this prospectus by the selling stockholder and does not take into account any limitations
on exercise or exchange of the warrants set forth therein.
In accordance with the
terms of a registration rights agreement with the holders of the warrants issued pursuant to the Unit Purchase Agreement, this
prospectus generally covers the resale of the 100% of the Purchase Shares and the initial number of shares issued and issuable
pursuant to the warrants (or the number of shares so issued and issuable as of the filing of the registration statement to which
this prospectus relates, if more). This prospectus also or otherwise covers such other shares of common stock issued or issuable
pursuant to the warrants as more fully set forth in this prospectus. Because the exercise price of the warrants may be adjusted
for recapitalizations, stock splits, reverse stock splits and the like as set forth in the warrants, the number of shares that
will actually be issued may be more or less than the number of shares being offered by this prospectus. The fourth column assumes
the sale of all of the shares offered by the selling stockholder pursuant to this prospectus.
Under the terms of the
warrants, the selling stockholder may not exercise or exchange the warrants to the extent (but only to the extent) such selling
stockholder or any of its affiliates would beneficially own a number of shares of our common stock which would exceed 9.99%. The
number of shares in the second column reflects these limitations. The selling stockholder may sell all, some or none of its shares
in this offering. See “Plan of Distribution.”
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Name of Selling Stockholder
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Number of Shares of
Common Stock Owned
Prior to Offering
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Maximum Number of
Shares of Common Stock to
be Sold Pursuant to this
Prospectus
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Number of Shares of
Common Stock Owned
After Offering
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Esousa Holdings LLC
(1)
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-
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1,079,136
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-
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(1) Rachel Glicksman has voting and investment
control over the shares held by the selling stockholder.
Plan of Distribution
We are registering the
Purchase Shares and the shares of common stock issuable to the selling stockholder upon exercise or exchange of the warrants to
permit the resale of these shares of common stock by the holders of the common stock and warrants from time to time after the date
of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholder of the shares of common stock.
We will bear all fees and expenses incident to our obligation to register the shares of common stock.
The selling stockholder
may sell all or a portion of the shares of common stock held by them and offered hereby from time to time directly or through one
or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or broker-dealers,
the selling stockholder will be responsible for underwriting discounts or commissions or agent’s commissions. The shares
of common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at
varying prices determined at the time of sale or at negotiated prices. These sales may be effected in transactions, which may involve
crosses or block transactions, pursuant to one or more of the following methods:
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on any national securities exchange or
quotation service on which the securities may be listed or quoted at the time of sale;
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in the over-the-counter market;
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in transactions otherwise than on these
exchanges or systems or in the over-the-counter market;
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through the writing or settlement of options,
whether such options are listed on an options exchange or otherwise;
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ordinary brokerage transactions and transactions
in which the broker-dealer solicits purchasers;
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block trades in which the broker-dealer
will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal
and resale by the broker-dealer for its account;
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an exchange distribution in accordance
with the rules of the applicable exchange;
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privately negotiated transactions;
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short sales made after the date the Registration
Statement is declared effective by the SEC;
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broker-dealers may agree with a selling
securityholder to sell a specified number of such shares at a stipulated price per share;
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a combination of any such methods of sale;
and
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any other method permitted pursuant to
applicable law.
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The selling stockholder
may also sell shares of common stock under Rule 144 promulgated under the Securities Act of 1933, as amended, if available, rather
than under this prospectus. In addition, the selling stockholder may transfer the shares of common stock by other means not described
in this prospectus. If the selling stockholder effects such transactions by selling shares of common stock to or through underwriters,
broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions
or commissions from the selling stockholder or commissions from purchasers of the shares of common stock for whom they may act
as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers
or agents may be in excess of those customary in the types of transactions involved). The selling stockholder may also loan or
pledge shares of common stock to broker-dealers that in turn may sell such shares.
The selling stockholder
may pledge or grant a security interest in some or all of warrants or shares of common stock owned by it and, if the selling stockholder
defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell the shares of common
stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable
provision of the Securities Act amending, if necessary, the list of selling stockholders to include the pledgee, transferee or
other successors in interest as selling stockholders under this prospectus. The selling stockholder also may transfer and donate
the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest
will be the selling beneficial owners for purposes of this prospectus.
To the extent required
by the Securities Act and the rules and regulations thereunder, the selling stockholder and any broker-dealer participating in
the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities
Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting
commissions or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, which
will set forth the aggregate amount of shares of common stock being offered and the terms of the offering, including the name or
names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling stockholder
and any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers.
Under the securities laws
of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers. In
addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for sale
in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance
that the selling stockholder will sell any or all of the shares of common stock registered pursuant to the registration statement,
of which this prospectus forms a part.
The selling stockholder
and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation
M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of common stock by the selling stockholder
and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged
in the distribution of the shares of common stock to engage in market-making activities with respect to the shares of common stock.
All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage
in market-making activities with respect to the shares of common stock.
We will pay all expenses
of the registration of the shares of common stock pursuant to the registration rights agreement, estimated to be $43,301.67 in
total, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities
or “blue sky” laws; provided, however, a selling stockholder will pay all underwriting discounts and selling commissions,
if any. We will indemnify the selling stockholder against liabilities, including some liabilities under the Securities Act in accordance
with the registration rights agreements or the selling stockholder will be entitled to contribution. We may be indemnified by the
selling stockholder against civil liabilities, including liabilities under the Securities Act that may arise from any written information
furnished to us by the selling stockholder specifically for use in this prospectus, in accordance with the related registration
rights agreements or we may be entitled to contribution.
Once sold under the registration
statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands of persons other
than our affiliates.
DESCRIPTION OF SECURITIES TO BE REGISTERED
The following information
describes our common stock, as well as provisions of our certificate of incorporation and bylaws. This description is only a summary.
You should also refer to our certificate of incorporation and bylaws, both as filed with the Commission as exhibits to our registration
statement, of which this prospectus forms a part.
Common Stock
We are authorized to issue up to 100,000,000
shares of common stock, par value $0.0001 per share. As of January 8, 2018, approximately 3,859,601 shares of common stock were
outstanding. All outstanding shares of our common stock are fully paid and non-assessable.
Each holder of our common stock is entitled
to a pro rata share of cash distributions made to our stockholders, including dividend payments. The holders of our common stock
are entitled to receive dividends when, as and if declared by our board of directors from funds legally available therefore. Cash
dividends will be paid at the sole discretion of our board of directors.
The holders of our common stock are entitled
to one vote for each share of record on all matters to be voted on by our stockholders. There is no cumulative voting with respect
to the election of our directors or any other matter. Therefore, the holders of more than 50% of the shares of our common stock
voting for the election of our directors can elect all of our directors.
In the event of our liquidation, dissolution
or winding up, the holders of our common stock are entitled to share ratably in all assets remaining available for distribution
to them after payment of our liabilities and after provision has been made for each class of stock, if any, having any preference
in relation to our common stock.
Holders of our common stock have no conversion,
preemptive or other subscription rights, and there are no redemption provisions applicable to our common stock.
Summary of Certain Provisions of Certificate of Incorporation
and Bylaws
Our certificate of incorporation and bylaws,
as applicable, among other things, (1) provide our board with the ability to alter the bylaws without stockholder approval, and
(2) provide that vacancies on our board of directors may be filled by a majority of directors in office. These provisions, while
designed to reduce vulnerability to an unsolicited acquisition proposal, and to discourage certain tactics used in proxy fights,
may negatively impact a third-party’s decision to acquire us even if it would be beneficial to our stockholders.
Anti-Takeover Effects of Delaware Law and Certificate of Incorporation
and Bylaws
We are subject to the Delaware anti-takeover
laws regulating corporate takeovers, including Section 203 of the Delaware General Corporation Law (“DGCL”). These
anti-takeover laws prevent Delaware corporations from engaging in a merger or sale of more than 10% of its assets with any stockholder,
including all affiliates and associates of the stockholder, who owns 15% or more of the corporation’s outstanding voting
stock, for three years following the date that the stockholder acquired 15% or more of the corporation’s assets unless:
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the board of directors approved the transaction in which the stockholder acquired 15% or more of the corporation’s assets;
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after the transaction in which the stockholder acquired 15% or more of the corporation’s assets, the stockholder owned at least 85% of the corporation’s outstanding voting stock, excluding shares owned by directors, officers and employee stock plans in which employee participants do not have the right to determine confidentially whether shares held under the plan will be tendered in a tender or exchange offer; or
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on or after this date, the merger or sale is approved by the board of directors and the holders of at least two-thirds (2/3) of the outstanding voting stock that is not owned by the stockholder.
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A Delaware corporation may opt out of the Delaware
anti-takeover laws if its certificate of incorporation or bylaws so provides. We have not opted out of the provisions of the anti-takeover
laws. As such, these laws could prohibit or delay mergers or other takeover or change of control of us and may discourage attempts
by other companies to acquire us even if it would be beneficial to stockholders.
Transfer Agent and Registrar
We have appointed Continental Stock Transfer
& Trust Company, 17 Battery Place, 8
th
Floor, New York, NY 10004 as our transfer agent and registrar.
Listing
Our common stock is listed on the NASDAQ Capital
Market under the symbol “NETE”.
LEGAL MATTERS
The validity of the issuance of the common stock
offered by this prospectus will be passed upon for us by Snell & Wilmer L.L.P., Los Angeles, California.
EXPERTS
Daszkal Bolton LLP, independent registered public
accounting firm, has audited our financial statements as of, and for the years ended, December 31, 2016 and 2015, included in our
Annual Reports on Form 10-K/A for the years ended December 31, 2016 and December 31, 2015, as set forth in their reports, which
are incorporated by reference in this prospectus. Our financial statements are incorporated by reference in reliance on Daszkal
Bolton LLP’s reports, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. We have also filed a registration statement on Form S-3, including exhibits,
under the Securities Act with respect to the securities offered by this prospectus. This prospectus is part of the registration
statement, but does not contain all of the information included in the registration statement or the exhibits. You may read and
copy the registration statement and any other document that we file with the Commission at the Commission’s Public Reference
Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the Commission at 1-800-SEC-0330 for further information on the
Public Reference Room. Our Commission filings are also available to the public on the internet at a website maintained by the Commission
located at http://www.sec.gov.
INFORMATION INCORPORATED BY REFERENCE
The Commission allows us to “incorporate
by reference” information into this document. This means that we can disclose important information to you by referring you
to another document filed separately with the SEC. The information incorporated by reference is considered to be a part of this
document, except for any information superseded by information that is included directly in this document or incorporated by reference
subsequent to the date of this document.
This prospectus incorporates by reference the
documents listed below and any future filings (including the filings after the date of the first registration statement which this
prospectus is a part of and prior to effectiveness of such registration statement) that we make with the Commission under Section
13(a), 13(c), 14 or 15(d) of the Exchange Act (other than current reports on Form 8-K furnished under Item 2.02 or Item 7.01 and
exhibits filed on such form that are related to such items), until all the securities offered under this prospectus are sold or
the offering is otherwise terminated.
The information incorporated by reference is
an important part of this prospectus. Any statement in a document incorporated by reference into this prospectus will be deemed
to be modified or superseded to the extent a statement contained in (1) this prospectus or (2) any other subsequently
filed document that is incorporated by reference into this prospectus modifies or supersedes such statement
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2016, as filed with the Commission on March 31, 2017, and Annual Report on Form 10-K/A for the fiscal year ended December 31, 2016, as filed with the Commission on October 19, 2017;
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Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2017, as filed with the Commission on May 15, 2017, June 30, 2017, as filed with the Commission on August 14, 2017, September 30, 2017, as filed with the Commission on November 14, 2017 and Quarterly Reports on Form 10-Q/A for the quarters ended March 31, 2017, as filed with the Commission on October 19, 2017, and June 30, 2017, as filed with the Commission on October 19, 2017;
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Our Current Reports on Form 8-K filed with the Commission on January 20, 2017, January 27, 2017, February 10, 2017, March 3, 2017, March 8, 2017, March 17, 2017, March 24, 2017, April 3, 2017 (only with respect to Item 9.01), April 28, 2017, May 15, 2017 (only with respect to Item 9.01), May 23, 2017, May 25, 2017, June 9, 2017, July 3, 2017, July 6, 2017, July 7, 2017, August 2, 2017, August 4, 2017, August 14, 2017 (only with respect to Item 9.01), August 21, 2017, September 1, 2017, September 29, 2017, October 4, 2017, October 20, 2017, November 14, 2017 (only with respect to Item 9.01), December 15, 2017, December 29, 2017, and January 2, 2018, and Current Report on Form 8-K/A, as filed with the Commission on March 22, 2017;
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Our Proxy Statement on Schedule 14A, as filed with the Commission on August 10, 2017; and
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The descriptions of our Common Stock contained in our Registration Statement on Form 8-A, filed with the Commission on September 28, 2010 and amended on October 2, 2012, and any other amendment or report filed for the purposes of updating such descriptions.
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Documents incorporated by reference are available
from the Commission as described above or from us without charge, excluding any exhibits to those documents unless the exhibit
is specifically incorporated by reference as an exhibit in this document. You can obtain documents incorporated by reference in
this document by requesting them in writing or by telephone at the following address:
Net Element, Inc.
3363 NE 163rd St., Suite 705
North Miami Beach, Florida 33160
(305) 507-8808
Attention: Chief Financial Officer
NET ELEMENT, INC.
1,079,136 Shares
Common Stock
January 8, 2018
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution.
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The following table sets forth the expenses
to be borne by the Registrant in connection with the issuance and distribution of the securities registered hereby. Other than
the Commission registration fee, all of the amounts below are estimates.
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Commission registration fee
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$
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1,801.67
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Accounting fees and expenses
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$
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5,000.00
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Legal fees and expenses
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$
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30,000.00
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Financial printing and miscellaneous expenses
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$
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5,000.00
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Transfer Agent fees
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$
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1,500.00
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Total
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$
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43,301.67
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Item 15.
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Indemnification of Directors and Officers.
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Section 102 of the Delaware General Corporation
Law (the “DGCL”) allows a corporation to eliminate the personal liability of directors of a corporation to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty
of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment
of a dividend or approved a stock repurchase in violation of the DGCL or obtained an improper personal benefit.
Under Section 145 of the DGCL, we can indemnify
our directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act
of 1933, as amended (the “Securities Act”). Our certificate of incorporation provides that, pursuant to the DGCL, our
directors shall not be liable for monetary damages for breach of the directors’ fiduciary duty of care to us and our stockholders.
This provision in the certificate of incorporation does not eliminate the duty of care, and in appropriate circumstances equitable
remedies such as injunctive or other forms of non-monetary relief will remain available under the DGCL. In addition, each director
will continue to be subject to liability for breach of the director’s duty of loyalty to us or our stockholders, for acts
or omissions not in good faith or involving intentional misconduct or knowing violations of the law, for actions leading to improper
personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful
under the DGCL. The provision also does not affect a director’s responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
Section 174 of the DGCL provides, among other
things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase
or redemption may be held liable for such actions. A director who was either absent when the unlawful actions were approved or
dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing
minutes of the meetings of our board of directors at the time such action occurred or immediately after such absent director receives
notice of the unlawful acts.
In addition, our directors and officers are
covered under directors’ and officers’ liability insurance policies maintained by us, subject to the limits of the
policies, insuring such persons against various liabilities.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that, in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable.
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Exhibit No.
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Description of Exhibit
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2.1
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Agreement and Plan of Merger, dated as of June 12, 2012, by and between Cazador Acquisition Corporation Ltd. and Net Element, Inc. (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Commission on June 12, 2012)
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2.2
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Contribution Agreement, dated April 16, 2013, among Net Element International, Inc., Unified Payments, LLC, TOT Group, Inc., Oleg Firer, and Georgia Notes 18 LLC (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Commission on April 17, 2013.
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2.3
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Term Sheet, dated May 20, 2013, among TOT Group, Inc., Net Element International, Inc. and Aptito.com, Inc. (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Commission on May 22, 2013)
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2.4
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Asset Purchase Agreement, dated June 18, 2013, between Aptito, LLC and Aptito.com, Inc. (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Commission on June 24, 2013)
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2.5
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Contribution Agreement, dated September 25, 2013, among T1T Lab, LLC, Net Element International, Inc. and T1T Group, LLC (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Commission on September 25, 2013)
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2.6
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Assignment of Membership Interest, dated February 11, 2014, among T1T Group, LLC, Net Element, Inc., and T1T LAB, LLC (incorporated by reference to Exhibit 2.7 to the Company’s Annual Report on Form 10-K filed with the Commission on April 15, 2014)
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2.7
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Binding Offer Letter, dated March 16, 2015, among TOT Group Europe Ltd., Maglenta Enterprises Inc. and Champfremont Holding Ltd. (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K/A filed with the Commission on March 20, 2015)
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4.1
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Specimen Common Stock Certificate of Net Element International, Inc. (incorporated by reference to Exhibit 4.2 to the Registration Statement on Form S-4 filed by the Company with the Commission on August 31, 2012)
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4.2
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Warrant Certificate of Cazador Acquisition Corporation Ltd. (incorporated by reference to Exhibit 4.3 to the Registration Statement on Form F-1 filed by the Company with the Commission on September 3, 2010)
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4.3
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Registration Rights Agreement by and between Cazador Acquisition Corporation Ltd., Cazador Sub Holdings Ltd. and Others (incorporated by reference to Exhibit 10.5 to the Registration Statement, as amended, on Form F-1/A filed by the Company with the Commission on October 6, 2010)
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4.4
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Warrant Agreement by and between Cazador Acquisition Corporation Ltd. and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.4 to the Registration Statement, as amended, on Form F-1/A filed by the Company with the Commission on October 6, 2010)
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4.5
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Secured Convertible Senior Promissory Note dated April 21, 2014 between the Company and Cayman Invest, S.A. (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the Commission on April 22, 2014)
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4.6
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Form of Amended and Restated Restricted Options to Purchase Shares of Restricted Common Stock (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the Commission on October 7, 2015)
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4.7
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Form of Option to Kenges Rakishev to Purchase Shares of Restricted Common Stock (incorporated by reference to Exhibit 4.1 to Net Element’s Current Report on Form 8-K filed with the Commission on January 22, 2016)
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4.8
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Registration Rights Agreement, dated as of July 6, 2016, between the Company and Esousa Holdings LLC (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the Commission on July 12, 2016)
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4.9
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Registration Rights Agreement, dated as of July 5, 2017, between the Company and Cobblestone Capital Partners LLC (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the Commission on July 7, 2017)
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4.10
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Registration Rights Agreement, dated as of December 29, 2017, between the Company and Esousa Holdings LLC (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the Commission on January 2, 2018)
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4.11
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Form of Warrant to Purchase Common Stock issued to Esousa Holdings LLC (incorporated by reference to Exhibit A-1 to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the Commission on January 2, 2018)
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4.12
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Form of Pre-Funded Warrant to Purchase Common Stock issued to Esousa Holdings LLC (incorporated by reference to Exhibit A-2 to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the Commission on January 2, 2018)
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5.1*
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Opinion of Snell & Wilmer L.L.P.
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10.1
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Unit Purchase Agreement, dated as of December 29, 2017, between the Company and Esousa Holdings, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the Commission on January 2, 2018)
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23.1*
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Consent of Independent Registered Public Accounting Firm (Daszkal Bolton LLP)
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23.2*
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Consent of Snell & Wilmer L.L.P. (including in Exhibit 5.1)
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24.1
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Power of Attorney (included on signature page)
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* Filed herewith.
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(a)
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The undersigned Registrant hereby undertakes:
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(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however
, that
paragraphs
(a)(1)(i), (ii), and (iii) of this section do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser, if the Registrant is subject to Rule
430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included
in the registration statement as of the date it is first used after effectiveness.
Provided
,
however
, that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately prior
to such date of first use.
(5) That,
for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to
by the undersigned Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant
or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial
bona fide
offering thereof.
(e) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions set forth or described in Item 15 of this registration statement, or otherwise,
the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned,
thereunto duly authorized, in Miami, Florida on January 8, 2018.
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NET ELEMENT, INC.
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By:
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/s/ Jonathan New
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Name: Jonathan New
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Title: Chief Financial Officer
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POWER OF ATTORNEY
The officers and directors of Net Element, Inc. whose signatures
appear below, hereby constitute and appoint Jonathan New and Oleg Firer, and each of them severally, their true and lawful attorney-in-fact
and agent, with full power of substitution, with power to act alone, to sign and execute on behalf of the undersigned any and all
amendments to this Registration Statement on Form S-3, including post-effective amendments and any Registration Statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”), and each of the undersigned
does hereby ratify and confirm all that said attorney-in-fact and agent, or his substitutes, shall do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Oleg Firer
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Chief Executive Officer and Director
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January 8, 2018
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Oleg Firer
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(Principal Executive Officer)
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/s/ Jonathan New
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Chief Financial Officer
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January 8, 2018
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Jonathan New
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(Principal Financial Officer; Principal
Accounting Officer)
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/s/ Kenges Rakishev
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Director
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January 8, 2018
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Kenges Rakishev
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/s/ Howard Ash
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Director
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January 8, 2018
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Howard Ash
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/s/ James Caan
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Director
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January 8, 2018
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James Caan
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/s/ Drew Freeman
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Director
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January 8, 2018
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Drew Freeman
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