Attached files
| file | filename |
|---|---|
| S-1 - REGISTRATION STATEMENT - Celsius Holdings, Inc. | fs1nov09_celsius.htm |
| EX-23.1 - CONSENT OF SHERB & CO. - Celsius Holdings, Inc. | fs1nov09ex23i_celsius.htm |
| EX-10.30 - COMPENSATION COMMITTEE CHARTER - Celsius Holdings, Inc. | fs1nov09ex10xxx_celsius.htm |
| EX-10.31 - NOMINATING AND CORPORATE GOVERNANCE COMMITTEE CHARTER - Celsius Holdings, Inc. | fs1nov09ex10xxxi_celsius.htm |
| EX-10.28 - AMENDMENT TO REGISTRATION RIGHTS AGREEMENT WITH CDS VENTURES OF SOUTH FLORIDA, LLC - Celsius Holdings, Inc. | fs1nov09ex10xxviii_celsius.htm |
EXHIBIT
10.29
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
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1.
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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.
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2.
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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.
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3.
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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.
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4.
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Review
and discuss quarterly reports from the independent auditors
on:
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(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.
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5.
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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).
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6.
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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.
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7.
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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.
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8.
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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.
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9.
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Ensure
that a public announcement of the Corporation’s receipt of an audit
opinion that contains a going concern qualification is made
promptly.
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10.
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Review
and discuss with management and the independent auditor the Corporation’s
disclosure controls and procedures.
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11.
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Review
significant new, or changes to existing, accounting, financial, external
reporting and asset-safeguarding policies and
practices.
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Oversight of the Corporation’s
Relationship with the Independent Auditor
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12.
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Review
and evaluate the lead partner of the independent auditor
team.
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13.
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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.
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14.
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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.
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15.
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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.
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16.
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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.
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17.
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Discuss
with the independent auditor material issues on which the national office
of the independent auditor was consulted by the Corporation’s audit
team.
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18.
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Meet
with the independent auditor prior to the audit to discuss the planning
and staffing of the audit.
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Effectiveness of Internal
Controls
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19.
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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.
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20.
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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.
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21.
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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.
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22.
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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.
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Compliance Oversight
Responsibilities
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26.
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Obtain
from the independent auditor assurance that Section 10A (b) of the
Exchange Act has not been
implicated.
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27.
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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.
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28.
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To
the extent required by NASDAQ rules, approve all related party
transactions.
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29.
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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.
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30.
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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.
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31.
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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.
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