fs1nov09ex10xxix_celsius.htm


    EXHIBIT
10.6

     

    CELSIUS
HOLDINGS, INC.

     

    AUDIT
COMMITTEE CHARTER

     

    November
6, 2009

     

    Purpose

     

     

    The Audit
Committee is appointed by the Board of Directors (the “Board”)
of Celsius Holdings, Inc. (the “Corporation”)
to assist the Board in overseeing (1) the accounting and financial reporting
processes of the Corporation, the audits of the Corporation’s financial
statements and the integrity of the Corporation’s financial statements, (2) the
independent auditor’s qualifications and independence, (3) the performance of
the Corporation’s internal audit function and independent auditors, (4) the
effectiveness of the Corporation’s internal control structure, and (5) the
compliance by the Corporation with significant legal and regulatory
requirements.

     

    The Audit
Committee shall prepare the report required by the rules of the Securities and
Exchange Commission (the “Commission”)
to be included in the Corporation’s annual proxy statement.

     

    Guiding Principles and Limitation of
Committee’s Role

     

    The Audit
Committee is dedicated to fostering a proper control structure in the
Corporation, from the environment in which the controls operate to the
activities that are performed on a daily basis. The Audit Committee will support
management and the Corporation's internal audit function to assess, develop,
implement and monitor controls over critical business processes to promote
effective and efficient operations, reliable financial reporting, compliance
with laws and regulations and the safeguarding of the Corporation's
assets.

     

    With
regard to financial reporting, the guiding principles to be considered by the
Audit Committee in carrying out its responsibilities in reviewing a particular
matter shall include consideration of (1) whether the financial statements
fairly present the results of operations of the Corporation in accordance with
generally accepted accounting principles; (2) whether the treatment of the
matter is consistent with the Corporation's practices in prior accounting
periods; (3) whether the presentation of the matter is reasonably comprehensive
under the circumstances; (4) whether the disclosure regarding the matter
contains any material misstatement or fails to disclose a matter which
reasonably would be considered material to the Corporation's stakeholders; and
(5) whether the presentation varies in a material way from principles of
convention or conservatism.

     

    While the
Audit Committee has the responsibilities and powers set forth in this Charter,
it is not the duty of the Audit Committee to plan or conduct audits or to
determine that the Corporation’s financial statements and disclosures are
complete and accurate and are in accordance with generally accepted accounting
principles and applicable rules and regulations. These are the responsibilities
of management and the independent auditor.

     

    Committee
Membership

     

    The Audit
Committee shall consist of no fewer than three members. The members of the Audit
Committee shall satisfy the independence requirements of the NASDAQ Stock Market
(“NASDAQ”)


     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    and the
Securities Exchange Act of 1934 (the “Exchange
Act”) and the rules and regulations of the Commission, in each case with
respect to audit committees. All members of the Audit Committee shall be able to
read and understand fundamental financial statements. In addition, members of
the Audit Committee may not have participated in the preparation of the
financial statements of the Corporation or any current subsidiary of the
Corporation at any time during the past three years. At least one member of the
Audit Committee shall be an “audit committee financial expert” as defined by the
Commission. The name of such audit committee financial expert shall be disclosed
in the Corporation’s filings with the Commission.

     

    The
members of the Audit Committee shall be appointed by the Board. Audit Committee
members may be replaced by the Board.

     

    Meetings

     

    The Audit
Committee shall meet as often as it determines necessary, but not less
frequently than quarterly. The Audit Committee shall meet periodically with
management, the internal auditors and the independent auditor in separate
executive sessions, and shall meet no less frequently than twice per year in
executive sessions composed solely of members of the Audit Committee. The Audit
Committee may request any officer or employee of the Corporation or the
Corporation’s outside counsel or independent auditor to attend a meeting of the
Committee or to meet with any members of, or consultants to, the
Committee.

     

    Committee Authority and
Responsibilities

     

    The Audit
Committee shall have the sole authority to appoint, determine funding for,
retain, terminate and oversee the outside auditors (subject, if applicable, to
shareholder ratification). The Audit Committee shall be directly responsible for
the compensation and oversight of the work of the independent auditor (including
resolution of disagreements between management and the independent auditor
regarding financial reporting) for the purpose of preparing or issuing an audit
report or related work. The independent auditor shall report directly to the
Audit Committee.

     

    The Audit
Committee shall pre-approve all auditing services and permitted non-audit
services (including the fees and terms thereof) to be performed for the
Corporation by its independent auditor, as required by applicable law and
Commission rules. The Audit Committee may form and delegate authority to
subcommittees consisting of one or more members when appropriate, including the
authority to grant pre-approvals of audit and permitted non-audit services,
provided that decisions of such subcommittee to grant pre-approvals shall be
presented to the full Audit Committee at its next scheduled
meeting.

     

    The Audit
Committee shall have the authority, to the extent it deems necessary or
appropriate, to engage and determine funding for independent legal, accounting
or other advisors. The Corporation shall provide for appropriate funding, as
determined by the Audit Committee, for payment of compensation to the
independent auditor for the purpose of rendering or issuing an audit report or
performing other audit, review or attest services for the Corporation and to any
advisors employed by the Audit Committee, as well as funding for the payment of
ordinary administrative expenses of the Audit Committee that are necessary or
appropriate in carrying out its duties.

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    The Audit
Committee shall make regular reports to the Board. The Audit Committee shall
review and reassess the adequacy of this Charter annually and recommend any
proposed changes to the Board for approval.

     

    The Audit
Committee, to the extent it deems necessary or appropriate, shall:

     

    Financial Statement and Disclosure
Matters

     

    
      	
              1.  

            	
              Review
      and discuss with management and the independent auditor the annual audited
      financial statements, including disclosures made in management’s
      discussion and analysis, and recommend to the Board whether the audited
      financial statements should be included in the Corporation’s Form
      10-K.

            


    

     

    
      	
              2.  

            	
              Review
      and discuss with management and the independent auditor the Corporation’s
      quarterly financial statements prior to the filing of its Form 10-Q,
      including the results of the independent auditor’s review of the quarterly
      financial statements.

            


    

     

    
      	
              3.  

            	
              Discuss
      with management and the independent auditor significant financial
      reporting issues and judgments made in connection with the preparation of
      the Corporation’s financial statements, including any significant changes
      in the Corporation’s selection or application of accounting
      principles.

            


    

     

    
      	
              4.  

            	
              Review
      and discuss quarterly reports from the independent auditors
      on:

            


    

     

    (a) All
critical accounting policies and practices to be used.

     

    (b) All
alternative treatments of financial information within generally accepted
accounting principles related to material items that have been discussed with
management, ramifications of the use of such alternative disclosures and
treatments, and the treatment preferred by the independent auditor.

     

    (c) Other
material written communications between the independent auditor and management,
such as any management letter or schedule of unadjusted
differences.

     

    
      	
              5.  

            	
              Discuss
      with management the Corporation’s earnings press releases, including the
      use of “pro forma” or “adjusted” non-GAAP information, as well as
      financial information and earnings guidance provided to analysts and
      rating agencies. Such discussion may be done generally (consisting of
      discussing the types of information to be disclosed and the types of
      presentations to be made).

            


    

     

    
      	
              6.  

            	
              Discuss
      with management and the independent auditor the effect of regulatory and
      accounting initiatives as well as off-balance sheet structures on the
      Corporation’s financial statements.

            


    

     

    
      	
              7.  

            	
              Discuss
      with management the Corporation’s major financial risk exposures and the
      steps management has taken to monitor and control such exposures,
      including the Corporation’s risk assessment and risk management
      policies.

            


    

     

    
      	
              8.  

            	
              Discuss
      with the independent auditor the matters required to be discussed by
      Statement on Auditing Standards No. 61 relating to the conduct of the
      audit, including any difficulties encountered in the course of the audit
      work, any restrictions on the scope of activities or access to requested
      information, and any significant disagreements with
      management.

            


    

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
              9.  

            	
              Ensure
      that a public announcement of the Corporation’s receipt of an audit
      opinion that contains a going concern qualification is made
      promptly.

            


    

     

    
      	
              10.  

            	
              Review
      and discuss with management and the independent auditor the Corporation’s
      disclosure controls and procedures.

            


    

     

    
      	
              11.  

            	
              Review
      significant new, or changes to existing, accounting, financial, external
      reporting and asset-safeguarding policies and
  practices.

            


    

     

    Oversight of the Corporation’s
Relationship with the Independent Auditor

     

    
      	
              12.  

            	
              Review
      and evaluate the lead partner of the independent auditor
    team.

            


    

     

     

    
      	
              13.  

            	
              Obtain
      and review a report from the independent auditor at least annually
      regarding (a) the independent auditor’s internal quality-control
      procedures, (b) any material issues raised by the most recent internal
      quality-control review, or Public Corporation Accounting Oversight Board
      (“PCAOB”) review, of the firm, or by any inquiry or investigation by
      governmental or professional authorities within the preceding five years
      respecting one or more independent audits carried out by the firm, (c) any
      steps taken to deal with any such issues, and (d) all relationships
      between the independent auditor and the Corporation. Evaluate the
      qualifications, performance and independence of the independent auditor,
      including considering whether the auditor’s quality controls are adequate
      and the provision of permitted non-audit services is compatible with
      maintaining the auditor’s independence, taking into account the opinions
      of management and internal auditors. The Audit Committee shall present its
      conclusions with respect to the independent auditor to the
      Board.

            


    

     

    
      	
              14.  

            	
              Obtain
      from the independent auditor a formal written statement delineating all
      relationships between the independent auditor and the Corporation. It is
      the responsibility of the Audit Committee to actively engage in a dialogue
      with the independent auditor with respect to any disclosed relationships
      or services that may impact the objectivity and independence of the
      auditor and for purposes of taking, or recommending that the full board
      take, appropriate action to oversee the independence of the outside
      auditor.

            


    

     

    
      	
              15.  

            	
              Ensure
      the rotation of the audit partners if and as required by law, and consider
      whether, in order to assure continuing auditor independence, it is
      appropriate to adopt a policy of rotating the independent auditing firm on
      a regular basis.

            


    

     

    
      	
              16.  

            	
              Recommend
      to the Board policies for the Corporation’s hiring of employees or former
      employees of the independent auditor who participated in any capacity in
      the audit of the Corporation.

            


    

     

    
      	
              17.  

            	
              Discuss
      with the independent auditor material issues on which the national office
      of the independent auditor was consulted by the Corporation’s audit
      team.

            


    

     

    
      	
              18.  

            	
              Meet
      with the independent auditor prior to the audit to discuss the planning
      and staffing of the audit.

            


    

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    Effectiveness of Internal
Controls

     

    
      	
              19.  

            	
              Review
      and discuss with management, the senior internal auditing executive and
      the independent auditor management’s plan for establishing and maintaining
      internal controls, the framework used to evaluate its control structure
      and management’s subsequent assessment of the effectiveness of the
      internal controls.

            


    

     

    
      	
              20.  

            	
              Review
      and discuss with management, the senior internal auditing executive and
      the independent auditor disclosures made to the Audit Committee by the
      Corporation’s CEO and CFO during their certification process for the Form
      10-K and Form 10-Q about any significant deficiencies in the design or
      operation of internal controls or material weaknesses therein and any
      fraud involving management or other employees who have a significant role
      in the Corporation’s internal
controls.

            


    

     

    
      	
              21.  

            	
              Review
      and discuss with management and the independent auditor any major issues
      as to the adequacy of the Corporation’s internal controls, any special
      steps adopted in light of material or significant control deficiencies and
      the adequacy of disclosures about changes in internal control over
      financial reporting.

            


    

     

    
      	
              22.  

            	
              Review
      and discuss with management and the independent auditor the Corporation’s
      internal controls report prior to the filing of the Corporation’s Form
      10-K.

            


    

     

    Compliance Oversight
Responsibilities

     

    
      	
              26.  

            	
              Obtain
      from the independent auditor assurance that Section 10A (b) of the
      Exchange Act has not been
implicated.

            


    

     

    
      	
              27.  

            	
              Obtain
      reports from management, the Corporation’s senior internal auditing
      executive and the independent auditor that the Corporation and its
      subsidiary/foreign affiliated entities are in conformity with applicable
      legal requirements and the Corporation’s Code of Conduct Advise the Board
      with respect to the Corporation’s policies and procedures regarding
      compliance with applicable laws and regulations and with the Corporation’s
      Code of Conduct.

            


    

     

    
      	
              28.  

            	
              To
      the extent required by NASDAQ rules, approve all related party
      transactions.

            


    

     

    
      	
              29.  

            	
              Establish
      procedures for the receipt, retention and treatment of complaints received
      by the Corporation regarding accounting, internal accounting controls or
      auditing matters, and the confidential, anonymous submission by employees
      of concerns regarding questionable accounting or auditing
      matters.

            


    

     

    
      	
              30.  

            	
              Discuss
      with management and the independent auditor any correspondence with
      regulators or governmental agencies and any published reports which raise
      material issues regarding the Corporation’s financial statements or
      accounting policies.

            


    

     

    
      	
              31.  

            	
              Discuss
      with the Corporation’s General Counsel legal matters that may have a
      material impact on the financial statements or the Corporation’s
      compliance policies.